Intellectual Property: Geographical Indications and biodiversity - hot topic at WTO meet
GI or Geographical indications, was an important matter for the WTO meet which concluded yesterday.
“TRIPS” is “trade-related aspects of intellectual property rights”. One group of countries has asked for three intellectual property issues to be part of the agenda and to link them with Agriculture and NAMA modalities. Another group opposes both the linking and the assertion that the subjects are ready for negotiations based on draft texts.
Only one of these subjects is officially part of the Doha round of negotiations and accepted as part of the “single undertaking” in which all Doha round subjects form part of a single package, with “nothing agreed until everything is agreed”:
the negotiation to create a multilateral register for geographical indications for wines and spirits.
The other two subjects are officially “implementation” issues. Members differ over whether these are subjects for negotiation or not:
“ GI extension ”: a proposal to extend to other products the higher level of geographical indications protection now given to wines and spirits
“ Disclosure ”: requiring that patent applicants disclose the origin of genetic material and traditional knowledge used in their inventions, or alternative proposals. This comes under the “ relationship between the TRIPS Agreement and the UN Convention on Biological Diversity ( CBD) ”.
Geographical indications: Geographical indications are place names (in some countries also words associated with a place) used to identify products that come from these places and have specific characteristics (for example, “ Champagne”, “Tequila” or “Roquefort”). Under the TRIPS Agreement, all geographical indications have to be protected at least to avoid misleading the public and to prevent unfair competition (Art.22). Wines and spirits are given a higher or enhanced level of protection (Art.23): subject to a number of exceptions they have to be protected even if misuse would not cause the public to be misled.
Negotiation: the multilateral register for wines and spirits: This negotiation, which takes place in dedicated “special sessions” of the TRIPS Council, is about creating a multilateral system for notifying and registering geographical indications for wines and spirits, which today benefit from a level of protection that is higher than for other geographical indications.
Implementation: geographical indications ‘extension': The issue here is whether to expand the higher level of protection to other products. A number of countries want to negotiate extending this higher level of protection to other products (i.e., cheeses, ceramics, meat, tea, coffee, etc.). Some others oppose the move, and the debate has included the question of whether the Doha Declaration provides a mandate for negotiations.
Patents, biodiversity and ‘disclosure': implementation:
This debate focuses on how the TRIPS Agreement relates to the Convention on Biological Diversity, and particularly whether the agreement should be amended to require “disclosure”. The ideas put forward include:
1. Disclosure as a TRIPS obligation : A group represented by Brazil and India and including Bolivia, Colombia, Cuba, Dominican Republic, Ecuador, Peru, Thailand, and supported by the African group and some other developing countries, wants to amend the TRIPS Agreement so that patent applicants are required to disclose the country of origin of genetic resources and traditional knowledge used in the inventions, evidence that they received “prior informed consent” (a term used in the Biological Diversity Convention), and evidence of “fair and equitable” benefit sharing.
2. Disclosure through the World Intellectual Property Organization (WIPO) : Switzerland has proposed an amendment to the regulations of the WIPO's Patent Cooperation Treaty (and, by reference, WIPO's Patent Law Treaty) so that domestic laws may ask inventors to disclose the source of genetic resources and traditional knowledge when they apply for patents. Failure to meet the requirement could hold up a patent being granted or, when done with fraudulent intent, could entail a granted patent being invalidated.
3. Disclosure, but outside patent law : The EU's position includes a proposal to examine a requirement that all patent applicants disclose the source or origin of genetic material, with legal consequences of not meeting this requirement lying outside the scope of patent law.
4. Use of national legislation, including contracts rather than a disclosure obligation : The United States has argued that the Convention on Biological Diversity's objectives on access to genetic resources, and on benefit sharing, could best be achieved through national legislation and contractual arrangements based on the legislation, which could include commitments on disclosing of any commercial application of genetic resources or traditional knowledge.