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Mr Lamy reported on four rounds of consultations he has held since March with a smaller group: Argentina, Australia, Brazil, Canada, Chile, India, Egypt (for the African Group), the EU, Japan, Mauritius (for the African Caribbean Pacific or ACP group), New Zealand, Norway, Peru, South Africa, Switzerland, Tanzania (for the least-developed countries or LDC group), and the US.

The Director-General was speaking in an informal meeting of the full membership called to brief delegations on the consultations, which are separate from the work of the Council on Trade-Related Aspects of Intellectual Property Rights (TRIPS Council).

The two issues are:

• whether or not to extend the higher level of protection for geographical indications currently only required for wines and spirits (“GI extension”, explained here)

• how the TRIPS Agreement’s provisions can and should promote the objectives of the UN Convention on Biological Diversity (CBD). Some countries want to amend the intellectual property (TRIPS) agreement so that patent applicants have to disclose the origin of genetic material and traditional knowledge (TK) used in the invention, to show that they have received permission to use the materials and knowledge, and to show that they are sharing the benefits with the original owners (“disclosure”). Others say these objectives are better served by other methods. These are explained here)

Geographical indications are place names (in some countries also words associated with a place) used to identify the origin and quality, reputation or other characteristics of products. The proposal to amend the TRIPS Agreement comes under the heading of the relationship between the TRIPS Agreement and the Convention on Biological Diversity (CBD).

The two subjects are “implementation” issues under the 2001 Doha Declaration, but members differ over whether they are actually mandated negotiations. See explanation

The 2005 Hong Kong Ministerial Conference asked the Director-General to intensify consultations on these issues.

In 2008, some members proposed these two issues be specifically made part of the Doha Round negotiations in a package that includes a third subject, a multilateral register for geographical indications for wines and spirits. But others oppose some or both of the proposals and say they should not be part of the Doha Round and should not be linked.

The discussion

Members’ positions remain apart both on the substance and on whether there is a mandate to tackle the issues within the Doha Round.

On the TRIPS and CBD issue, they clearly agree that misappropriation of genetic material and traditional knowledge is a problem to be tackled. But they remain divided on whether the solution lies in amending the TRIPS Agreement to require “disclosure” or in some other method such as research contracts.

On extending the higher level of geographical indications protection beyond wines and spirits, they remain divided on whether the standard level of protection is a problem, and therefore whether there is any need for “extension”.

Speakers, many of them ambassadors, represented: Chinese Taipei, Argentina, Australia, EU, US, India, Canada, Peru, Switzerland, Brazil, Chile, Kenya, El Salvador, China, New Zealand, Japan, Pakistan, Tanzania, Colombia, Ecuador, Costa Rica, Nigeria, Jamaica, Thailand, Nicaragua.

Concluding, Mr Lamy said that at least there is consensus that he should continue his consultations. He noted that some members wanted the discussions to be more political and less technical, while others wanted them to be the reverse. Therefore, the present set-up of one ambassador and one expert for each delegation strikes the right balance, he said.

His next consultation with the smaller group will be on 8 October.

Caveat on the report

Some delegates asked for his report in writing. Mr Lamy said he was happy to share the report provided he can preserve its informality. What he said was nothing more than an unofficial snapshot that must not be seen as an official text, the Director-General stressed. In that spirit, his opening speaking notes are reproduced here:

Open-ended informal consultations
on GI extension and on TRIPS/CBD
as outstanding implementation issues

Monday, 27 July 2009 — 15:00
Speaking points for the Director-General

I have convened this open-ended session to bring you all up to speed on my consultations on two issues:

• the extension of the protection of geographical indications provided for in Article 23 of the TRIPS Agreement to products other than wines and spirits, or the so-called “GI extension”; and

• the relationship between the TRIPS Agreement and the Convention on Biological Diversity — for short, “TRIPS-CBD”.

This work dates back to the Doha Declaration, which identified these two issues as among the “implementation-related issues and concerns raised by Members”. Ministers expressed their “determination” to find appropriate solutions. The TRIPS Council initially took up this work, but failed to progress towards substantive convergence among Members. My predecessor initiated informal consultations on these issues in 2003 to explore ways of moving forward. The General Council endorsed this process as part of the July 2004 package, underscoring that consultations were “without prejudice to the positions of Members” on these issues. At Hong Kong, your Ministers mandated me to intensify the existing consultative process and to report to TNC [Trade Negotiations Committee] and the General Council, which I have done since.

From March 2009, I have undertaken the consultations personally, and will focus today on the work undertaken in the four sessions convened since then. The consultations are strictly informal and technical in character, and are consciously focussed on assisting Members to understand more fully each other’s interests and concerns, and to try to shed light on the technical issues at stake. They have not addressed broader questions such as whether, and if so how, these issues should be linked to the broader negotiating agenda. We have also tried to ensure that these consultations remain distinct from the negotiations on the GI Register conducted by [Ambassador] Trevor Clarke in the Special Session of TRIPS Council.

Meetings have been held at the level of heads of delegation, assisted by one technical expert. Delegations are invited from across the spectrum of views and interests, and represent all formal positions currently on the table. They comprise Argentina, Australia, Brazil, Canada, Chile, India, Egypt (for the African Group), the EC, Japan, Mauritius (for the ACP group), New Zealand, Norway, Peru, South Africa, Switzerland, Tanzania (for the LDC group), and the US.

The working method has been to circulate lists of questions in advance of each session and to use delegations’ oral answers to these questions as the basis for open discussions. Time is divided equally between the two issues, and the sequence of work is reversed each time to ensure equal treatment. Consultations are entirely informal, to promote open discussion, so no written record is issued.

Both these issues have a reputation for being difficult. Certainly, it is no trivial task to find common ground among Members. The two issues raise challenging questions at the technical and international levels, and touch on key national interests, both commercial interests and socio-cultural concerns.

At a technical legal level, the consultations have raised issues such as what is the exact scope of protection of GIs through the trademark system, and how does this interact with descriptive and other uses of these terms? How to define what patents are erroneous in the field of genetic resources; how to determine the status of traditional knowledge (TK) as prior art in the patent system?

These issues concern the interplay between TRIPS and other areas of international law and policy — for instance, whether and if so how the patent system should recognize or give effect to the objectives of a multilateral environmental agreement, the CBD. In the debate over extended GI protection, we hear references to questions of equity and impact on trade in agricultural and other goods.

And these issues go to the heart of certain national policy interests — many developing countries seek greater recognition and respect for their heritage of genetic resources and traditional knowledge systems; many countries seek to ensure the sound functioning of the patent system as a key element of their economic infrastructure; traditional agricultural producers and artisans seek recognition of the local and traditional characteristics of their products; agricultural traders seek access to export markets and freedom to use terms they regard as legitimate trademarks or descriptive terms. These are substantive and sensitive interests that delegations understandably guard with great care.

So we do have quite a solid menu in front of us. This requires, firstly, much effort just to work systematically through the issues and to explore the implications of different approaches to resolving them. It also means that we all still have a degree of learning to do, including understanding the concerns of opposing positions — these are unavoidably complex issues, and we have to make sure that we fully understand the implications of each other’s positions, so that whatever outcome we reach is one you are all comfortable with.

I have been impressed by the seriousness of delegations, by their willingness to expend time and diplomatic bandwidth on this process, and by the respect shown for the perspectives of the two sides, even as clear divergences continue, and those differences are firmly expressed. I am convinced that a continuing focus on technical issues is essential for a better understanding of all Members’ concerns. But this is not to fetishize the technical dimension, nor to pursue a kind of academic enquiry. We must focus on what Members believe is practically achievable. These consultations should illuminate the landscape more clearly, and thus help delegations identify pathways through this difficult terrain.

I would not do justice to the very good work that delegations have undertaken if I left you with a bare procedural account and ignored the substance. Hence I will offer a brief overview of the ground covered in recent discussions. But it would dramatically alter the nature of the consultations if participants felt that every contribution would be reported on. So in giving you a general sense of the content discussed, I am not presenting or characterizing the views or positions of any delegation or group of delegations. Still less am I trying at this stage to identify negotiating ideas for the resolution of these issues.

 

On GI extension, the first issue mentioned in my mandate, discussions covered a number of general themes:

• Factors for and against expanding the protection of Article 23 to goods other than wines and spirits: this included a discussion of the comparative merits of the “misleading-the-consumer” test under Article 22 and the Article 23 “correctness” test.

• How the costs and burdens of GI protection and its enforcement should be managed, with a particular focus on the needs of SMEs, and the best way of managing the trade-off between greater legal certainty and predictability (which proponents claim for Article 23 protection, describing it as “objective”), and the case-by-case application of the consumer deception and unfair competition rule (as applies under Article 22, described as “subjective”).

• The rationale for the current higher level protection for wines and spirits — the idea of creating a level playing field for all products and to avoid discrimination between sectors is contrasted with the view that this was the outcome of a balanced package in the Uruguay Round.

• Broader questions with bearing on trade interests, such as the impact of higher protection on continuing market access for food exports to third country markets and the importance of GI protection in the context of the overall package on agriculture.

• The development dimension was stressed, including the view that higher protection for wine and spirit GIs principally benefited industrialized countries, but not those developing countries whose GI interests concerned textiles, handicrafts, agricultural products or foodstuffs, as against the contrasting view that higher GI protection may impede certain valuable exports of developing countries.

The discussions went some way to clarifying some technical issues:

• The distinction between scope of protection under Article 23, recognition of a term as a protectable GI under Article 22.1, and the Article 24.6 exception permitting some generic use.

• How GIs are protected as trademarks, especially as certification and collective marks, and the extent to which trademark protection can or should meet the expectations of the proponents of GI extension.

• The related question of whether it was possible to implement GI extension under the trademark system or whether it would require some sui generis type of legislation.

• Difficulties arising when GIs are used in translation, and whether GI significance in one country can or should influence the level of protection in another country.

The discussions looked at a range of practical examples that both illustrated how GIs were protected as trademarks in some countries, and the perceived shortcomings of trademark protection for some GIs.

Delegations continued to voice the divergent views that have long characterised this debate. Even so, there were clarifications that trademark systems were legitimate forms of protecting GIs, in line with the general TRIPS principle that Members are entitled to choose their own means of implementing their obligations. Extension proponents sought guarantees that trademark systems could and would protect their GIs at the higher level for all goods. And discussions clarified that GI extension did not mean existing TRIPS exceptions for generic terms would cease to apply.

Turning now to TRIPS-CBD, discussions built on the common ground that I had already reported in June 2008, resulting from the earlier round of consultations — agreement on the avoidance of erroneous patents, securing compliance with national agreements on benefit-sharing regimes and ensuring patent offices have available the information needed to make proper decisions on patent grant.

Discussions reviewed the practical implications and comparative merits of current proposals — a disclosure requirement, a database system, nationally-based approaches to enforcing prior informed consent and equitable benefit sharing. The discussions turned around how each of these options could help achieve the widely shared objectives, and what form they could take to be effective in meeting those objectives while not creating undue burdens.

We started on the avoidance of erroneous patents and explored how databases and disclosure requirements would operate in practice to reduce the risk of patents being incorrectly granted over genetic resources and related traditional knowledge. Discussions covered how a mandatory disclosure requirement and how databases would help prevent erroneous patents. However, proponents of disclosure mechanisms stressed that their overall goal was to ensure that TRIPS provisions positively supported compliance with the essential objectives of the CBD, including prior informed consent and equitable sharing of benefits. While there has been general acceptance of these CBD goals, it is fair to say Members remain divided as to the best means to attain this end.

Participants debated whether a disclosure requirement would:

• be the most effective or desirable way of supporting compliance with access and benefit sharing obligations in the source country of genetic resources and associated TK, and the prevention of trans-boundary misappropriation of genetic resources and TK;

• avoid the issuance of erroneous patents if patent applicants identified only the source country;

• be burdensome for patent applicants and the concerned information readily available in patent offices; and

• result in uncertainty and deter investment in innovation, thus undermining the role of the patent system.

Discussions also considered whether more precise definitions are needed on genetic resources and TK and if so, whether or not to wait for these to be worked out in other forums such as WIPO or the CBD.

While the general utility of databases was not disputed, participants discussed:

• whether or not databases could serve as the primary way to prevent erroneous patents on genetic resources and TK;

• the difficulty of having fully exhaustive databases of TK, especially since much TK is oral in character and there are concerns that recording TK in a database can itself lead to misappropriation;

• the difficulty of fully mapping out all the genetic resources potentially available in a mega-diverse country; and

• whether or not a mandatory disclosure requirement would be useful in helping point patent examiners towards the relevant databases.

I have tried to give a general sense of these very rich and often complex discussions, but stress again that this is not in any sense a comprehensive or authoritative account of the discussions. These processes thrive on their informality, the freedom of debate and open exchange of views, and I very much hope this can continue in the coming months with our next meeting planned for 8 October and for which on last Friday I sent out a fax asking participants for their suggested questions. That said, we do owe the full membership a high degree of transparency so that you can all maintain confidence in this process.

I now open the floor for your observations and questions.