TRIPS Council: Discussion Of IP And Innovation Irritates India: Other Issues Unchanged

World Trade Organization members meeting at the WTO intellectual property committee this week held fast to positions on longstanding issues, but engaged in discussions on issues such as innovation in relation to universities, and so-called “non-violation complaints” against countries that may cause harm to another country but don’t violate a WTO rule. Also discussed was the ongoing dispute over plain packaging requirements for tobacco products.

In a new issue, the introduction by the United States of the discussion on IP and innovation related to universities was criticised by India, echoing global tensions between the two nations.

The Council for Trade-Related Aspects of Intellectual Property Rights (TRIPS) met from 25-26 February.

Non-Violation Complaints: US, Switzerland Hold Out

Among the topics discussed was a moratorium on “non-violation” complaints that currently applies to the WTO TRIPS agreement. This prevents members from bringing non-violation complaints under TRIPS. Non-violation complaints are a legal dispute at the WTO in which a country can bring a case against another country if the complainant country feels it has been deprived of expected benefits by the other country’s action, but there is no particular violation of a WTO rule.

The issue is whether the moratorium should be lifted, or conversely turned into a permanent feature. During the last WTO Ministerial conference in December in Bali, the moratorium was extended once again with the understanding that WTO members would try to reach an agreement one way or the other by the next ministerial conference in 2015.

This week, most countries supported the view that the moratorium should be indefinite, sources told Intellectual Property Watch. However, the United States and Switzerland disagreed, sources said. According to a WTO official, Canada and Japan hold an intermediate position, and Japan called for the TRIPS Council to clarify the scope and modalities of non-violation cases.

A European Union official told Intellectual Property Watch that the European Union is in favour of a permanent moratorium on non-violation complaints in TRIPS. “We do not see the purpose of such complaints in the context of the TRIPS agreement, but we are ready to engage in the discussion, hopefully on the basis of concrete examples from those that believe non-violation complaints should be possible in the TRIPS context.”

“Non-violation complaints in general are a rare occurrence and when they do occur it is often in relation with a violation complaint,” the official said. “We need to understand what kind of problems we are trying to solve with non-violation complaints in the TRIPS,” he added.

Some developing countries have argued that non-violation complaints in TRIPS could potentially affect their ability to use TRIPS flexibilities, such as the ability to issue compulsory licences, according to the WTO official, speaking at a 26 February press briefing.

Bangladesh, in its statement, said, “Developing countries and especially LDCs [Least Developed Countries] are particularly concerned as they enjoy different flexibilities under TRIPS and any one of them could also be a subject of non-violation complaint quite unnecessarily.”

A counterargument was that flexibilities are enshrined in the TRIPS agreement for developing countries and concerning public health they were reaffirmed in the Doha Declaration on the TRIPS Agreement and Public Health, so flexibilities would not be affected by non-violation complaints, the WTO official said. The issue is expected to be discussed again at the next TRIPS Council meeting.

University Technology Partnerships: India Reacts

The United States introduced a discussion on the role of university technology partnerships in intellectual property and innovation. According to the WTO, the discussion prompted many examples of universities contributing to innovation and the development of technology.

A number of countries described their national experiences and some countries such as Brazil, Guatemala and El Salvador said it was a good subject to discuss, a WTO official said.

However, India in its statement [pdf], expressed surprise at the inclusion of the agenda item “at the behest of one developed country.” India said the council has seen similar agenda items, in which it said developed countries assert that IP boosts development, while developing countries counter that evidence is lacking to show that strong IP deliver development or innovation.

“While developed countries have tried to create private monopolies over minor or incremental innovations, the developing countries can define their own patent threshold on the basis of their socio economic development,” the statement said. The Indian Patent Act includes a section – 3(d) – which aims to prevent the evergreening of patents, and which has been disputed by some developed countries, in particular the United States (IPW, Public Health, 18 February 2014).

“The over-emphasis on IP may thus deviate the focus of the Universities from basic research and teaching to that of meeting the commercial needs of the industry,” India said.

The United States adopted a law in 1980 known as the Bayh-Dole Act that “created a uniform patent policy among the many federal agencies that fund research, enabling small business and non-profit organizations – including universities – to retain title to inventions made under federally funded research programs. The Act was also instrumental in encouraging universities to participate in technology transfer activities,” according to a US Patent and Trademark Office press release for the 30th anniversary of the Act.

India remarked that “The developed countries have reached this level of development not through high IP standards but through a flexible approach.” They argued that if patent monopolies had existed a hundred years ago, the world would not have seen the current revolutions in fields such as telecommunications, pharmaceuticals, engineering, and information technology.

India also cited the Open Source Drug Discovery, a global platform for drug discovery led by the Council of Scientific & Industrial Research (India), as an example of innovative initiative inspired by the open source models in information technology.

Transfer of Green Technology

At the request of Ecuador, the TRIPS Council discussed the contribution of intellectual property to facilitating the transfer of environmentally rational technology (IPW, WTO/TRIPS, 20 February 2014).

In its communication paper [pdf] on the issue, Ecuador, asked in particular for a review of Article 31 of TRIPS (Other Use Without Authorization of the Right Holder) in order “to determine which of its provisions may excessively restrict access to and dissemination” of green technologies.

According to a WTO official, the European Union, Switzerland and the United States gave concrete examples of transfer of green technology projects in developing countries, and said that IP is not the only factor coming into play in green tech transfer. Infrastructure, regulatory framework and transaction costs also are factors to consider, they said.

Most countries agreed on continuing discussing this item, an Ecuadorian delegate told Intellectual Property Watch. Ecuador is expected to update its proposal, according to the WTO. A number of developing countries supported Ecuador, such as Brazil, China, Cuba, El Salvador, India, and South Africa, the WTO said.

Plain Packaging of Tobacco Products

Plain packaging of tobacco products has been discussed at the TRIPS Council for a number of times. There are five ongoing disputes at the WTO, all of them against Australia, which has introduced requirements for plain packaging for tobacco products sold in Australia, as a public health measure (IPW, WTO/TRIPS, 20 February 2014). A number of other countries have indicated that they are considering introducing plain packaging as well.

Cuba, the Dominican Republic, Honduras, Indonesia and Ukraine are contending that plain packaging violates the TRIPS agreement, in relation to trademarks and geographical indications.

This week, Cuba, which had requested the agenda item, urged countries to refrain from introducing plain packaging until there is a ruling of the WTO Dispute Settlement Body, according to a WTO official at the press briefing. Cuba also argued that plain packaging could also have adverse effects, such as making counterfeiting easier, and making cigarettes cheaper, thus possibly increasing consumption, the official said.

According to the WTO, the Dominican Republic raised concerns that similar measures could be introduced for other products for high sugar, fat or alcohol content, which they saw as negative. Australia declined to comment in view of the pending disputes, sources said.

Nigeria and Switzerland, according to the WTO, said they support health policies but urged members to be consistent with the TRIPS agreement and the Paris Convention for the protection of industrial property. They also engaged members to adopt proportionate policies.

Other Issues

The WTO also reported that positions have not changed in the discussions on the relationship between the TRIPS and the Convention on Biological Diversity, and the possible amendment to the TRIPS agreement to require a mandatory disclosure of the source of genetic resources and related traditional knowledge in patent applications.

Speaking in favour of disclosure were countries such as: Angola speaking on behalf of Least Developed Countries, India, Brazil, China, Bangladesh, Peru, South Africa, Egypt, and the African Group. Those opposed included the United States and Japan, the WTO said.

The meeting was chaired by Amb. Dacio Castillo of Honduras, acting in the absence of Amb. Alfredo Suescum of Panama. Suescum is one of four candidates for the position of director general of the neighbouring World Intellectual Property Organization. The WIPO election takes place on 6 March.

The next TRIPS Council meeting is expected to take place on 11-12 June.

[Update:] The WTO has issued a chart [pdf] “Where is the plain packaging issue in the WTO,” displaying the history of the ongoing disputes.

Maëli Astruc and Julia Fraser, interns at Intellectual Property Watch, contributed to this story.