US sees no TRIPs negotiations at Seattle

U.S. SEES NO TRIPS NEGOTIATIONS AT SEATTLE, FOCUSES ON IMPLEMENTATION

August 6, 1999 - Inside US Trade

The U.S. government does not anticipate renegotiation of a World Trade Organization agreement requiring protection of intellectual property rights to be a part of multilateral trade negotiations to be launched at the Seattle Ministerial, a U.S. official said this week.

U.S. interests lie much more with working toward ensuring effective implementation and enforcement of the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs) among developing countries, according to the official.

"This is for us is the single most important thing about the TRIPs Agreement now," the official said. Instead of putting their resources into another round of intellectual property negotiations launched in Seattle, countries should focus their resources into implementing this agreement in a full and effective manner, the official said.

"We do not anticipate and we have not then advocated that new negotiations on the TRIPs agreement be initiated at the Seattle Ministerial," the official added. But the official held out that changes to the agreement could be proposed after several upcoming reviews of implementation and substance of the agreement.

The official emphasized that keeping the TRIPs Agreement out of the new round initially fits the objectives outlined by the U.S. of a manageable agenda in a three-year negotiating period.

Some developing countries have submitted proposals to the WTO for new negotiations on TRIPs just as their deadline for implementing the agreement is approaching, the official said. Under the TRIPs less developed countries and former communist economies-in-transition have until Jan. 1, 2000 to fully implement their TRIPS commitments.

These proposals have included extending the transition period past Jan. 1 and expressed concerns about the possible incompatibility of the TRIPs with other international agreements, including the Biodiversity Convention being negotiated under the auspices of the United Nations, the official said.

Some developing members have also raised the issue of so-called non-commercial "indigenous knowledge" and whether it should also be protected under TRIPs, the official said. The official added that one example of such knowledge is planting techniques, but admitted that the U.S. does not fully understand this concept yet.

Some developing countries have also proposed expanding protection of geographical indications to include products beyond food, wine and spirits, the official said.

However, the U.S. has found none of these arguments compelling and has not advocated for new negotiations, the official said.

"We haven't gotten any benefit out of this agreement from many countries with whom we negotiated so hard in the Uruguay Round," the official said. "To now have them say 'Well, we think we should extend the transition,' or 'We should negotiate to make changes before we've provided you any benefits,' we find completely unappealing," the official said.

Industry sources agreed that the environment was not good for a reopening of the TRIPs and that more focus is needed on effective implementation of the agreement. "There are plenty of opportunities when the time is right to reopen TRIPs and be bringing new substantive standards or new enforcement standards into the TRIPs Agreement," one source said.

Specifically, two built-in reviews of the agreement by the TRIPs Council are approaching, the U.S. official said.

First will be a country-by-country review next year of developing country members' implementation of TRIPs, the official said. But the U.S. may find it difficult to make a case given the vagueness of some TRIPs provisions (Inside U.S. Trade, July 16, p. 10).

Second, in 2002 the entire TRIPs agreement will be reviewed based on members implementation experiences, the official said. The official held out the possibility that recommendations or modifications of the agreement could be made at the time, but cautioned that the U.S. has made no commitment whether it will make any proposals in this area.

"We want to the benefits of the agreement and after we see them and after we see what that's like and how countries are doing with that, we have these reviews [and then] we'll see where that takes us," the official said.

Another industry source added that the 5-year period since the negotiation of the TRIPs has amounted to a "delay" rather than a "transition period"

and that most developing countries have not implemented their TRIPs commitments.

The source added that only the U.S. opposes the extension of a moratorium on nullification and impairment cases under TRIPs that runs out at the end of this year (Inside U.S. Trade, July 16, p. 14).

In addition, the TRIPS Council is currently reviewing Article 27.3b of the agreement, which concerns plant varieties inventions. This provision allows members to exempt from patentability plants and animals (other than micro-organisms) and essentially biological processes for the production of plants and animals. However, the provision requires members to provide protection for plant varieties either through patents or unique legislation.

Hypothetically, the U.S. might like to have patents be more the controlling factor than other legislation, as is accepted under the International Union for the Protection of New Varieties of Plants (UPOV). But the U.S. considers the 1991 version of UPOV agreement to be a good agreement that is useful to plant breeders, the official said.

The official also cautioned that the debate on patentability of life forms is not over and noted the possibility that suggestions for changes to Article 27.3b may be raised. But the official refused to outline what those suggestions might be.

"This debate over life forms is one that will rage...and I think we're probably more...tolerant of patents on life forms than most countries, but other countries are just all over the map," the official said. "It will continue to be debated, including in this country, and that debate probably has to play itself out some more."

The Council must conclude the review by the end of the year, the official said.

Inside US Trade - Volume 17, No. 31 - (c) Inside Washington Publishers