N/S divide splits TRIPS Council

NORTH-SOUTH DIVIDE SPLITS TRIPS COUNCIL

The WTO Council on Trade Related Aspects of Intellectual Property Rights (TRIPs) met from 20-22 October. Inter alia, the agenda for the meeting included a review of the provisions of Article 27.3(b) of the TRIPs Agreement.

Article 27.3(b) of TRIPs calls for WTO Members to protect intellectual property over plant varieties either by patent or by an effective sui generis system, or by a combination of the two. Developing countrieshave until January 2000 to comply with TRIPs obligations to protect the rights of developers of new plant varieties. As part of the Uruguay Round, WTO Members agreed to review Article 27.3(b) in 1999 -- in advance of developing countries' implementation deadline. Developing countries are under pressure to adopt the 1991 International Convention for the Protection of New Varieties of Plants (UPOV 1991) as the mechanism to fulfil their 27.3(b) obligations (see BRIDGES Weekly Trade News Digest Volume 3, No. 15 16, 26 April 1999).

At the meeting, the U.S. and India each submitted a major paper concerning Article 27.3(b). The U.S. recommended their own patent-based model to other Members, arguing that an effective intellectual property protection system has been beneficial in stimulating research and development. The U.S. warned other Members that any sui generis model for plant variety protection not modelled on UPOV-1991 would need to be looked at on a case-by-case basis.

India's paper focused on aspects of traditional knowledge and the problems associated with handling intellectual property in this area due to its strong oral tradition, as opposed to many developed countries' focus on text-based intellectual property. With respect to the forthcoming review of Article 27.3(b), India advised developing countries to wait before implementing sui generis systems, as the only model offered so far was that of the developed countries.

India's views were for the most part supported by a Kenyan paper and by a group of developing countries that included Pakistan, Egypt, Brazil, Ecuador, Peru, and Paraguay.

Siding for the most part with the U.S., the EU argued that there is no conflict between TRIPs and Members' commitments under the UN Convention on Biodiversity (CBD). The CBD obliges its signatories -- of which the U.S. is a non-party -- to respect, preserve, and maintain knowledge, innovations and practices of indigenous and local communities. The EU disagreed with India that traditional knowledge was within the scope of Article 27.3(b), and pointed out that the World Intellectual Property Organisation (WIPO) was currently working on this area.

The EU-U.S. side was supported for the most part by developed countries, including Switzerland, Canada, Japan, Australia, and Korea.

Overall, Members agreed to continue the Article 27.3(b) review process in 2000, with the TRIPs Council Chair holding periodic informal meetings with delegates in an attempt to broker broad-based agreement.

Many proposals relating to negotiations on TRIPs have been included in the latest draft of the WTO Seattle Ministerial Declaration. Amongst these is a 12 October proposal from Bolivia, Colombia, Ecuador, Nicaragua and Peru on protection of IPRs relating to the traditional knowledge of local and indigenous communities. The proposal advocates for negotiations to establish a multilateral legal framework that will grant effective protection to the expressions and manifestations of traditional knowledge.

Also in the news, India is reported to be considering contesting a U.S. patent on a plant-based treatment for diabetes. The U.S. granted a patent in July to a U.S.-based pharmaceutical company for a diabetes remedy based on eggplant, bitter gourd and jamun. Indian officials say the remedy has been used as a treatment in diabetes in India for years, and has been well documented in a number of Indian texts on medicinal plants. The Indian Minister of State and Agriculture and Water Resources Shri Sompal called the U.S. patent an onslaught on the traditional knowledge and practices prevalent in the developing countries, and called on the WTO to institute rules protecting indigenous products and knowledge from pouching by foreign companies.

India may contest U.S. patent on diabetic remedy, ENS, 27 August 1999. ICTSD Internal Files.