TRIPS review: updates from Geneva

TRIPS COUNCIL DISCUSSES PLANT PATENTING ICTSD, Geneva, 26 April 1999

The TRIPs Council met again last week and discussed a number of issues [...].

On the review of Article 27.3(b) - which says that animal and plant inventions do not need to be given patent protection, but that plant varieties have to be given either patent or a "sui generis" form of protection - the discussions seem to be becoming more specific than at previous sessions of the Council, although there is still disagreement about whether the 1999 exercise is a review of implementation or of the provision of Article 27.3(b).

The U.S. and the EU argued that the review that is due to be completed in 1999 is a review of implementation, although they both said that they had open minds about discussing the provision. In support of their point of view the U.S. and the EU point out that in the French version of the text the term "réexamen" is used, which would imply to "re-examine" rather than to "renegotiate".

Meanwhile, the TRIPs Council is continuing its "information-gathering" work. Approximately thirty countries have so far submitted information on their implementation of Article 27.3(b).

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US-EC SIDE-TRACKING SUBSTANTIAL TRIPS 27.3 REVIEW?

Geneva, 25 Apr (Chakravarthi Raghavan) -- The United States and the European Union appear to be attempting at the WTO to prevent a mandated review of the provisions of the TRIPs Agreement in Art. 27.3(b) on patentability of plants and animal varieties, and micro-organisms and life forms, and instead restrict the review to one of implementation.

The US and EC views were presented at the meeting of the TRIPs Council (21 and 22 April), but was strongly contested by a number of developing countries including India, the Philippines, Pakistan, Brazil, Malaysia, Egypt and Venezuela, trade diplomats said.

The issue is to be taken up again at the next meeting of the TRIPs Council in July.

In the scheme of Art 27, paragraph 1, creates an obligation on all WTO members to make available, "subject to the provisions of paragraphs 2 and 3", patents for any inventions, whether products or processes, in all fields of technology...." Paragraph 2 of this article enables members to exclude from patentability inventions in certain specified areas and sectors, including on grounds of protecting ordre public or morality, including protecting human, animal or plant life or health or avoiding serious prejudice to the environment...

Art. 27.3 provides: "Members may also exclude from patentability:

(a) diagnostic, therapeutic and surgical methods for the treatment of humans or animals;

(b) plants and animals, other than micro-organisms, and essentially biological processes for the production of plants or animals other than non-biological and micro-biological processes. However, Members shall provide for the protection of plant varieties either by patents or by an effective sui generis system or by any combination thereof. The PROVISIONS (emphasis added) of this subparagraph shall be reviewed four years after the date of entry into force of the WTO Agreement."

In their ordinary meaning the words used would require the review of the provisions of the subpara have to be taken up and completed by end of 1999.

The wording used in Art 27.3 was a carefully negotiated compromise, reflecting not only the differing interests and conflicts among the

industrialized countries (including differences between the US and the EU, and the EC commission and its member states and the EU Parliament), but also the differences between developing and developed countries.

And at the time, as the Dunkel text was tabled in Dec 1991, there was also the added complication that the same issues in a way were being negotiated in the Uruguay Round and at the UNEP- organized UN Convention on Bio-Diversity (which has more adherents than the WTO, excepting for the United States which has not so far ratified and accepted).

It was in fact the EC Commission negotiators who persuaded developing countries to accept the compromise, pointing out that the legislations within the EU in fact did not allow such patents.

But with a well-financed bio-tech industry having successfully lobbied the EC Commission and the EU Parliament to provide for patents through an EU directive, the EC has now changed its stance and joined hands with the US to prevent a full-scale review of the provisions, as Art. 27.3(b) requires.

But the compromise in the Uruguay Round, reflected even more some serious doubts and questions within the scientific community itself -- for example, the dividing line between micro- and macro-organisms, and even the stability of the genome into which genetic manipulation is done. Some of these doubts and concerns have in fact grown - even though the academics and institutions linked up with bio-tech firms have been making assertions to the contrary.

The provision for review "four years" after the date of entry of the WTO, was put in with an eye on the fact that the substantial TRIPs provisions kick in, as an obligation of developing countries (except for the least developed) "five years" after WTO entry.

That the intention behind the last sentence in Art. 27.3(b) was to provide for a complete review of the provisions is borne out by the fact that elsewhere in the TRIPs agreement itself, different wording is used in calling for review of "implementation".

For e.g. Art 71, dealing with "Review and Implementation", provides in paragraph 1 of that Article: "The Council for TRIPS shall review the IMPLEMENTATION (emphasis added) of this Agreement after the expiration of the transitional period referred to in paragraph 2 of Art. 65."

There is also a further provision in the same paragraph: "The Council shall, having regard to the experience gained in implementation, review it two years after that date, and at identical intervals thereafter. The Council may also undertake reviews in the light of any relevant new developments which might warrant modification or amendment of the Agreement."

Since the same set of representatives negotiated the TRIPs Agreement, it has to be presumed that in using differing language, they did so deliberately.

There has been a dispute inside the TRIPS council itself, as the US and the other industrialized countries, have tried to put pressure on developing countries to provide information on how they are implementing the TRIPS even before their obligations kick in.

But this has been resisted by developing countries, and the compromise was those countries who wished to could provide such information. Some 20 countries, including a few developing countries, have provided such information, but most of the key developing countries have not.

In the discussions at the TRIPS council, the US and EC view that Art. 27.3(b) envisages only "review of implementation" was challenged by several developing countries who pointed to the difference in language used in Art. 27.3(b) and Art. 71.

The "review" issue is to be taken up at the next meeting of the TRIPS council in July, by when the secretariat is expected to produce a note on the basis of information provided to it on implementation.

As part of the EC Vice-President Leon Brittan's idea of an "open ended agenda and process" to prepare for the Seattle Ministerial and the

negotiations to be launched there, suggestions have been floated that the Art. 27.3(b) review could also be put into that basket.

However this may disadvantage developing countries, whose obligations under TRIPS, and Art. 27 kick in on 1 January 2000. If they put in some legislation on plant varieties etc, they may find themselves in difficulties if they find a need to revise it later.

This would be particularly so, if they listen to the technical advice of the WTO or of the World Intellectual Property Organization and join the UPOV 1991 (the only one now open for accession) which in fact restricts the rights of farmers to save seeds etc, or enact domestic legislation using the same language as in UPOV 1991.

One way out could be for developing countries to insist on the extension of the time-limit for implementation in respect of Art. 27.3(b) obligations until such time as the review of the provisions are taken up and a decision reached.

In the meanwhile, as many of them as possible, could enact, domestically, legislation for protecting "plant varieties" by combining suitably a patent system and an effective sui generis system which, despite motivated technical advice to them, does not require either their joining UPOV or adopting all the provisions thereof in their laws.