The relationship between the IR, the WTO, UPOV Convention and WIPO Jorge Cabrera Medaglia
Structure of the study 1. Factual overview of relevant developments and provisions and their relationship with the IR negotiations 2. Different options and scenarios
WTO: DEVELOPMENTS AND PROVISIONS: 1. CBD COP decisions: calling to explore the relationships between the Convention and the TRIPs Agreement ( and the CTE ). 2. The discussions on the relationship between the CBD and IPR, in the context of the WTO, were originally wide-ranging, including different issues like TK protection, patenting of life forms, etc. Most of the debate was part of the revision of article 27.3.b 3. Doha Mandate ( 2001) TRIPs Council to adress the relationship between TRIPs and the CBD, including TK 4. Now the debate is focused on the disclosure of origin in patent applications and other alternative mechanisms to prevent missapropiation
WTO: DEVELOPMENTS AND PROVISIONS: 1. Disclosure of origin: proposals for amend the TRIPS agreement ( new 29bis) to include the disclosure of origin in patent applications; along with prove of prior informed consent and benefit sharing. 2. Different proposals and text: Norway, Developing Countries; EU. Swizterlandad: reform PCT. 3. Alternative proposals to addres the relationship between IP and genetic resources: contracts, databases, etc.
WTO: provisions and developments related to the IR negotiations: Current IR negotiations, including Annex to Decision IX/12 create a linkage between the IR and WTO. Disclosure of origin and alternative mechanisms to prevent missapropiation and facilitate BS Certificate of origin; source, legal provenance or compliance: check point could be IPR applications. Linkages with other WTO relevant provisions TBT, MFN and NT, among others. Technology transfer as a mechanism for sharing benefits Other provisions and linkages of interest: investment provisions and non discrimination articles and the IR ( ABS legislation in general) were not explore.
WIPO: factual review and relevant provisions of WIPO: 1. Differente WIPO bodies: Committe for the PCT reform; Development Agenda, etc, are relevant, but the Study focused on the IGC on GR; TK and Folklore
WIPO: factual review and relevant provisions of WIPO: 1. Revelant work of the ICG on IP and GR: - Technical studies on disclosure of origin - Compilation of IP provisions on abs agreements ( data base of contracts and MTA) - Draft guidelines for drafting IP provisions of ABS agreements, etc - Study on IP and TT in the context of the CBD
WIPO: factual review and relevant provisions of WIPO: 1. Revelant work on TK: - Systematic clarification of legal options - Case studies and analitical experiences, including the use of IP and sui generis systems - Tool kit for documenting TK - Progressive recognition of TK in the patent system: improving the patent examination process through different mechanisms - Draft set of policy objectives and principles on TK
WIPO: issues connecting the IR and WIPO: There are clear connecting issues: - TK: some of the work of WIPO relates to the WG on Article 8J work and agenda - IP and GR, including disclosure of origin and other alternative instruments. - Tools and instruments to support TK and IP and GR.
UPOV Convention provisions and developments 1. Plant Variety protection a form of IP for plant varieties 2. UPOV Council view on the IR and UPOV ( Session No 37, 23 October 2003 and session 25, April 11 2008): disclosure of origin ( PIC and BS) should not be an additional condition for protection 3. UPOV and the CBD-IR should be mutually supportive
UPOV and the IR: connecting issues: 1. Disclure of origin/certificate and UPOV conditions for protection 2. Technoloy transfer and PVP
OPTIONS AND SCENARIOS WTO-IR: Study addresses different options: 1. Disclosure of origin/certificate included in the IR negotiations Language and text could be different but in general some experts agree that disclosure and the certificate, if properly designed and drafted do not run counter the WTO/TRIPs agreement and other relevant agreements of the WTO IR could provide clarity on relevant issues like PIC; BS, the certificate conditions, etc Disvantages: most difficult to incorporate the disclosure on the IP system and the
OPTIONS AND SCENARIOS WTO-IR: 2. Disclosure of origin at the WTO: exact text is not known IR could provide clarity on key issues needed to implement any disclosure requirements established in the WTO Some advantages for a better integration of the instrument in the IP system.
OPTIONS AND SCENARIOS WTO-IR: 3. No Disclosure of origin requirements in either instrument
OPTIONS AND SCENARIOS WTO-IR: 4. Technology tranfer provisions develop in the IR Mininum BS conditions could include TT to be negotiated between users and providers under MAT TT provisions also targeted directly to Parties TT provisions could be drafted to be in harmony and mutually supportive of the WTO
OPTIONS AND SCENARIOS WIPO-IR: Non binding or non binding result from the IGC so far 1. IR and the IGC could continue in parallel without specific coordination; 2. WIPO developments on TK, including the Draft Set of Objectives and Principles, are in principle in harmony with the IR ( note no agreement on how to deal with this document at WIPO) 3. This outcome of course would likely finally depend on how these instruments are drafted
OPTIONS AND SCENARIOS WIPO-IR: 1. IR focuses on specific issues taking into account the IGC developments 2. E.g development of general provisions with regard missapropiation of TK; sui generis systems, PIC from IP and local communities, etc 3. Some disvantages: different memberships of both fora; uncertainty about the results at WIPO; control of the content of the potential outcome, etc
OPTIONS AND SCENARIOS WIPO-IR: 3. IR recognition of WIPO tools and instruments - IR could take advantage of the support instruments and information generated by WIPO ( guidelines, draft provision, databases, etc) for TK and disclosure or other alternative measures to avoid missapropiation
OPTIONS AND SCENARIOS WIPO-IR: 4. IR and other WIPO Treaties (PCT and PLT) - No final binding conclusion on the consequences of disclosure on these treaties administred by WIPO
OPTIONS AND SCENARIOS UPOV-IR: 1. Discloure of origin/certificte established at the IR: as a condition for protection for plant variety rights: it could conflict with the UPOV Convention 2. Exclusion of PBR from disclosure or the use of the certificate or an alternative drafting. 3. TT and UPOV: similar arguments than the ones presented for WTO. TT could be drafted to be mutually supportuive and in harmony of the UPOV Convention 4. Stament on the mutual supportiveness
Final remarks There is a lot of space to create mutual supportiveness between the IR outcome and the WTO, UPOV and WIPO instruments and processes