INTELLECTUAL PROPERTY

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• INTELLECTUAL PROPERTY
• AND DEVELOPMENT
• Presentation by Adrian Otten
• Director, Intellectual Property Division,
• WTO Secretariat
• Panel Discussion
• 7 June 2005, New York

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TRIPS Agreement

• Based on a recognition of the legitimate interest
  of countries in the way their IP is protected in
  other countries.
• And the desirability of a functioning
  international rule of law in relations between
  countries in this area.
• Respects the need for balance in national IP
  systems between the interests of producers and
  users of intellectual property, and the need for
  flexibility so that countries can fine-tune this
  balance in the light of their development needs.
• Negotiated as part of the Uruguay Round of trade
  negotiations.

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Balance and Flexibility in the TRIPS Agreement
(1)

• Objectives - Article 7
• The protection and enforcement of intellectual
  property rights should contribute to the
  promotion of technological innovation and to the
  transfer and dissemination of technology, to the
  mutual advantage of producers and users of
  technological knowledge and in a manner conducive
  to social and economic welfare, and to a balance
  of rights and obligations.

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Balance and Flexibility in the TRIPS Agreement (2)

• Article 8 Principles
• Exceptions to protectable subject-matter
• Exceptions to rights
• Compulsory licensing
• Exhaustion and parallel imports
• Measures against anti-competitive practices
• Transition periods

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Debate about the Balance and Scope for
Flexibility in the TRIPS Agreement

• Different views about whether balance found in
  the TRIPS Agreement is optimal
• Manifestations in ongoing work of the WTO
• - TRIPS and public health
• - Biotechnology/biodiversity/traditional
  knowledge, in particular the relation between
  the TRIPS Agreement and the Convention on
  Biological Diversity
• - Geographical indications

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TRIPS and Public Health (1)Doha Declaration on
the TRIPS Agreement and Public Health, 2001

• The Declaration, while reaffirming TRIPS
  commitments, recognizes right of WTO Members to
  use the flexibilities provided for in the TRIPS
  Agreement to the full, clarifies them where
  appropriate, and agrees that they should be
  interpreted in a way supportive of public health.
• Extends transition period for pharmaceuticals for
  LDCs to 1.1.2016
• Para. 6 instructed the TRIPS Council to find,
  before the end of 2002, an expeditious solution
  to the problem of WTO Members with insufficient
  or no manufacturing capacities in the
  pharmaceutical sector in making effective use of
  compulsory licensing under TRIPS.

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TRIPS and Public Health (2) Para. 6 Doha What
was the problem?

• Members can issue compulsory licences for
  importation as well as for domestic production.
• The problem was whether sources of supply from
  generic producers in other countries to meet such
  demand will be available, particularly in the
  light of the provision of Article 31(f) of the
  TRIPS Agreement (predominantly for the supply of
  the domestic market of the Member).

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TRIPS and Public Health (3)Decision on
Implementation of Para. 6, August 2003

• The Decision takes form of waivers (with
  amendment foreseen)
• 3 waivers granted
• of 31(f) to exporting Members subject to
  conditions on transparency and safeguards against
  diversion
• of 31(h) to importing Members provided
  remuneration paid in exporting Member on same
  products
• of 31(f) to any LDC or developing country part of
  RTA where at least half LDCs.

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TRIPS and Public Health (4)Chairmans statement
at time of adoption of the Decision

• Statement represents several key shared
  understandings of Members.
• System should be used in good faith to protect
  public health and not to pursue industrial or
  commercial policy objectives.
• All reasonable measures should be taken to
  prevent diversion.
• Expeditious review in TRIPS Council and good
  offices of the Director-General or Chair of the
  TRIPS Council.
• 44 Members opt-out fully or partially as
  importers (3311).

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TRIPS and Public Health (5)Turning the waiver
Decision into an amendment

• Waivers remain in force until replaced by an
  amendment.
• Issues
• content amendment to be based, where
  appropriate, on the waiver Decision
• legal form
• Timing.

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The TRIPS Agreement and the Convention on
Biological Diversity (1)Doha Work Programme

• Para. 19 - Doha Ministerial Declaration
• We instruct the Council for TRIPS, in pursuing
  its work programme including under the review of
  Article 27.3(b), the review of the implementation
  of the TRIPS Agreement under Article 71.1 and the
  work foreseen pursuant to paragraph 12 of this
  Declaration, to examine, inter alia, the
  relationship between the TRIPS Agreement and the
  Convention on Biological Diversity, the
  protection of traditional knowledge and folklore,
  and other relevant new developments raised by
  Members pursuant to Article 71.1. In undertaking
  this work, the TRIPS Council shall be guided by
  the objectives and principles set out in Articles
  7 and 8 of the TRIPS Agreement and shall take
  fully into account the development dimension.

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The TRIPS Agreement and the Convention on
Biological Diversity (2)Disclosure Proposal of
Developing Countries

• Amend TRIPS Agreement to make obligatory
  disclosure by patent applicant of
• The source and country of origin of biological
  resources and traditional knowledge used in the
  invention.
• Evidence of prior informed consent.
• Evidence of fair and equitable benefit sharing.
• In their view, essential for balanced outcome to
  Doha Development Agenda negotiations.

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The TRIPS Agreement and the Convention on
Biological Diversity (3)Positions of other
delegations

• Willingness to envisage some rules on disclosure
  of origin or source
• National solutions using legislation on access
  and benefit sharing and contracts sufficient and
  no need to involve the patent system
• Mind not closed
• Role of WTO and WIPO
• Relationship with the Round

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Geographical Indications (1)Three Initiatives

• Negotiations on the establishment of a
  multilateral system of notification and
  registration of geographical indications for
  wines and spirits (Article 24.3 Doha).
• Issues related to the extension of the protection
  of geographical indications provided for in
  Article 23 to products other than wines and
  spirit.
• Proposals in Agriculture negotiations for
  clawback of use of certain GIs.

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Geographical Indications (2)Legal Effects of GI
register Three Proposals

• Register in form of a searchable database, to be
  consulted when participating Members take
  national decision on GI protection.
• More far-reaching legal effects and opposition
  mechanism (if no opposition, presumption or
  more that GI not fall under an exception to
  protection which could have been ground for
  opposition).
• Some legal effects consequent on a registration
  (presumption of ownership, compliance with GI
  definition and protection in country of origin).
  No opposition mechanism.

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Geographical Indications (3)Participation in GI
Register Two main positions

• Legal effects in all WTO Members (multilateral
  system)
• Legal effects mandatory only in those opting to
  participate in the system (eligible for
  protection in those Members participating in the
  system).

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Geographical Indications (4)Extension

• Para. 18, 2nd sentence of Doha Declaration
• We note that issues related to the extension of
  the protection of geographical indications
  provided for in Article 23 to products other than
  wines and spirits will be addressed in the
  Council for TRIPS pursuant to paragraph 12 of
  this Declaration.
• Different views on whether part of Round.
• Different views on merits.