SUNS  4339 Monday 7 December 1998



WTO DISCUSSIONS ON FUTURE WORK IN TRIPS

Geneva, 4 Dec (Chakravarthi Raghavan) -- Industrialized countries appear to have attempted to link up implementation of their commitment to provide incentives to their enterprises to promote technology transfer to least-developed countries (Art. 66.2) with implementation by developing countries of transitional provisions (Art. 70.8 and 70.9) on pharmaceutical product patents and exclusive marketing rights.

The issue arose at this week's meeting of the Council on Trade-related Intellectual Property Rights (TRIPS), over the request of Haiti, an LDC, and the only one in the western hemisphere, seeking information from the developed countries on the incentives they have provided to promote technology transfers to LDCs. Other issues discussed at the TRIPS council, but without any
conclusions or decisions, included those relating to the review of Art. 27.3 (b) on protection of animal and plant varieties, and the provisions for review of geographical indications/appellations of
origin and further negotiations to increase protection of individual indications (of wines and spirits) as well as extension to other products, and dispute settlement.

Under Art. 66.2, industrialized countries are required to provide incentives to enterprises and institutions in their territories for purpose of promoting and encouraging technology transfers to LDC
members in order to enable them to create a sound and viable technological base.

Haiti had asked the industrialized to notify or provide this information to enable it to take advantage of these incentives.

But the industrialized countries led by the US and EC refused to do so, linking up their compliance with compliance by developing countries to the demands from the US and others on how they have implemented obligations under Art. 70.8 and 70.9, and answer detailed questions.

Art. 70.8 require developing countries, not providing product patents for pharmaceutical and agro-chemical products (and have time till 2005 to provide such rights), to set up a mail-box system to receive patent applications, and preserve their "novelty", and under Art. 70.9 to grant exclusive marketing rights until the patent application is disposed of.

While developing countries have notified their arrangements or laws and regulations in these and other areas (as required), the US and others have been seeking some detailed information and answers to questions, and for a "systematic" review of implementation of these provisions.
Developing countries have refused to accept any such review or any obligation to answer questions, bilaterally or otherwise.

The US and others sought at this week's meeting to link this issue with responses to Haiti's request, but failed.

After some acrimonious discussions, a compromise of sorts was reached for circulation as an informal document Haiti's request, with the TRIPS Council chair expressing the view that he expects members to provide replies in as complete a manner as possible.

The United States and other industrialized had also been pressing developing countries (whose general obligations under TRIPS kick in only on 1 January 2000) to notify their legislations to enable reviews, and not wait until 2000, thus crowding the TRIPS Council agenda.

While some have voluntarily agreed to make notifications where they have adopted laws and regulations, developing countries have refused to accept advance notification requirements.

On the issue of plant and animal life, Art. 27.3 (b) enables countries to exclude these areas from patentability but requires them to provide a sui generis system of protection of plant varieties, and calls for a review of this provision.

The obligation of developing countries to provide protection for such plant varieties becomes effective only on 1 Jan 2000.

But as part of the mandated review of this provision, the US and others wanted a review of the implementation of this article, while the developing countries made clear that the review related to the provisions of the article, and not how it had been implemented.

As a general proposition, the developing countries refused to accept any "systematic review" of implementation bc countries of individual articles and obligations.

The TRIPS Council has agreed to invite members to say how they give protection to plant and animals - and the industrialized countries whose obligations have already kicked in obliged to answer them, and developing countries responding if they want to or can.

Other international organizations involved in this area including the FAO, WIPO's UPOV Convention and the Convention on Biodiversity are to be invited to present their views on how they handle these questions.

On the geographical indications issue, the provisions in section 3 of TRIPS agreement relate to what may be called "consumer protection" and trade facilitation, and require countries to provide legal means to prevent misuse of and mislead the public about the geographical origin of a product, and or a usage that results in unfair competition.

There are also some special provisions relating to wines and spirits, and for negotiations in the TRIPS council for a multilateral system of notification and registration of such geographical indications.

Negotiations are also envisaged for increasing this geographical indication protection in respect of wines and spirits, with the TRIPS Council reviewing this every two years.

The EC has proposed a voluntary system of registration for geographical indications, but once a name is accepted under the system, all WTO members would be obliged to protect them.

There are also demands raised for higher level of protection of geographical names for wines and spirits, and extending these provisions to other products.

The current geographical system of origin covers some wines, and the EC wants its extension to spirits.

Some relates questions about extension of this to other products have come up - in respect of some cheeses, and other products like basmati rice (the name commonly given to a particular variety of long-grain fragrant variety of rice grown in some parts of India and Pakistan).

The name basmati and some near-imitations have been appropriated and sought to be patented in the United States by firms for rice grown in the United States, and this has created an uproar in India and Pakistan.

But the US does not want to undertake more obligations than under the existing TRIPS provisions, and give a narrow interpretation. It has also made clear that geographical appellations must relate to products which could be specific to a region, and not varieties where the name is not geographically specific.

Australia did not want the list of products to be protected extended.

Morocco on the other hand wants the coverage extended to some food and handicrafts.

Japan sided with Australia and the US for narrowing the definition, while Chile wants the protection confined to wines and some preliminary discussions on extending it to spirits.

India wanted expanded coverage, and so did Cuba to include agriculture and other products. Nigeria also supported expanded coverage.