[Ip-health] WTO secretariat's media release on February 2014 TRIPS Council: Intellectual property body grapples with plain packaging, innovation, technology and more

Thiru Balasubramaniam thiru at keionline.org
Fri Feb 28 09:54:19 PST 2014



25 and 26 February 2014


Intellectual property body grapples with plain packaging, innovation,
technology and more

WTO members discussed a number of new and long-running issues such as plain
packaging for tobacco products, measures related to biodiversity,
innovation in green technologies, and the role of universities, when they
met as the intellectual property council on 25-26 February 2014. But they
failed to narrow their differences on many issues and there were no
breakthrough decisions.

The discussions (details
took place in the Council for Trade Related Aspects of Intellectual
Property Rights
which, like almost all WTO committees, consists of all WTO members. One
issue was a follow-up fromthe Bali Ministerial
December 2013 -- the apparently abstract legal question of "non-violation"
disputes, which some believe may have real-world implications for trade and
related issues.

Some details

   - Plain packaging for
   - TRIPS and green
   - Non-violation
   - TRIPS and biodiversity<http://www.wto.org/english/news_e/news14_e/trip_ss_25feb14_e.htm#biodiversity>
   - Innovation and cooperation with
   - Other issues<http://www.wto.org/english/news_e/news14_e/trip_ss_25feb14_e.htm#others>

Plain packaging back to

A number of countries urged members to refrain from introducing plain
packaging for cigarettes and other tobacco products -- using standard
colours and typefaces instead of brand logos, usually with large health
warnings -- until a ruling emerges from the WTO dispute settlement cases
involving Australia's law. However, New Zealand reported on the progress of
its draft law, which is now in Parliament.

This was the seventh time the TRIPS Council had discussed the issue since
June 2011 <http://www.wto.org/english/news_e/news11_e/trip_07jun11_e.htm>,
the most recent
on similar plans in Ireland. Plain packaging for tobacco products has also
been discussed in theTechnical Barriers to
Trade<http://www.wto.org/english/tratop_e/tbt_e/tbt_e.htm> Committee
(which deals with labelling and packaging) and is the subject of five legal
challenges <http://www.wto.org/english/tratop_e/dispu_e/dispu_e.htm> against
Australia, dispute cases
by Ukraine), DS435
by Honduras),DS441<http://www.wto.org/english/tratop_e/dispu_e/cases_e/ds441_e.htm>
by Dominican Republic),
by Cuba) and DS467<http://www.wto.org/english/tratop_e/dispu_e/cases_e/ds467_e.htm>(brought
by Indonesia).

Cuba, Dominican Republic, Honduras, Zimbabwe, Ukraine, Nicaragua, Indonesia
repeated their support for health objectives, but remained concerned about
possible violations of TRIPS by preventing producers from using trademarks
and geographical indications.

They argued that plain packaging is too drastic to meet the objective of
protecting health, and that it could be counter-productive by making
counterfeiting easier and cheaper, and increasing smoking. They repeated
their complaint about the impact on their poor producers. The Dominican
Republic said it also fears that similar measures might be taken on other
products such as those with high sugar, fat and alcohol contents

Australia declined to comment while the legal case was being heard.

New Zealand described the latest progress of its bill, which was introduced
into Parliament on 17 December 2013, and passed its first reading on 11
February. The draft law still has to go through a parliamentary committee
and two more stages in Parliament before it becomes law, New Zealand said.
After that regulations would be drafted, which would include details of
what the plain packaging should look like.

New Zealand said comments can still be received on the bill, up to 18 April
2014, and with further comments possible when the regulations are drafted.
(See New Zealand notification G/TBT/N/NZL/62/Add.1.)

Uruguay supported Australia's legislation, repeating its position that this
is legitimate. Any country can introduce laws to protect the public
interest such as in health, and plain packaging cannot be considered a
violation of the TRIPS Agreement, Uruguay said.

Nigeria said that measures to protect public health should not be used to
impede legitimate trade, and also urged members to wait until the Australia
dispute is concluded.

Switzerland said it supports health policies and anti-smoking campaigns,
but also urged members to be consistent with the TRIPS Agreement, Paris
Convention for the protection of industrial
and adopt policies that are "proportionate" -- appropriate for the
circumstances and taking into account a balance of all interests at stake.

Some of the legal disputes against Australia's legislation have reached the
stage where WTO members (meeting as the Dispute Settlement Body) have
agreed to set up panels (a group of adjudicators) to rule on the case, but
so far no panellists have been appointed.

The Dominican Republic said its first request in December 2012 for a panel
to be set up was blocked by Australia but that the agreement setting out
the rules for disputes<http://www.wto.org/english/tratop_e/dispu_e/dispu_e.htm>
the Dispute Settlement
would not allow a second request to be blocked (see article
In practice a second request can be lodged after about a month because the
Dispute Settlement Body meets almost every month.

New Zealand reminded members that the rules for disputes require the cases
to be settled promptly (see article

Intellectual property, Innovation and green technologyback to

In the latest discussion on this subject, Ecuador suggested it could update
itsyear-old proposal<http://www.wto.org/english/news_e/news13_e/trip_11jun13_e.htm#climate>
easing patent terms and strengthening TRIPS flexibilities for
environmentally sound technologies (documentIP/C/W/585).

This was partly because the proposal related to the December 2013 Bali
Ministerial Conference<http://www.wto.org/english/thewto_e/minist_e/mc9_e/mc9_e.htm>,
with a call for a declaration highlighting the flexibilities available in
the TRIPS Agreement -- along the lines of the 2001 Doha Ministerial
Declaration on TRIPS and Public
Ecuador also proposed reducing the length of time patents are protected for
green technologies.

Replying to questions asked in previous meetings, Ecuador defended its view
that intellectual property protection can hamper the transfer of
environmentally sound technologies, making it inaccessible and expensive
for developing countries, at a time when all countries agree on the need to
combat climate change. Cuba, El Salvador, India, China, South Africa,
Brazil, and Benin supported discussing the Ecuadorian proposal.

Chile, the EU, Japan, Switzerland, the US, and Australia countered that
intellectual property rights protection does not obstruct technology
transfer. In addition, other factors are also necessary to support the
transfer, they said, such as adequate regulatory regimes, proper
infrastructure, and low patent fees.

Non-violation Complaints back to

Members continued to disagree as to whether "non-violation"
be allowed in intellectual property. They were prepared to tackle seriously
a complex legal issue that has been unresolved for over 20 years, but one
that some believe can have a bearing on real-world trade. Nevertheless,
they still differed on how to do this.

One of the real-world implications, some developing countries say, could be
to undermine flexibilities allowed under the WTO agreement, for example to
bypass some patent rights so that the sick in poorer countries obtain
cheaper medicines. However, some countries countered that WTO rules prevent

A non-violation case arises in the WTO when one country challenges the
legality of another's actions, if it feels it is deprived of an expected
benefit, even if no actual agreement or commitment has been violated.
Non-violation disputes are allowed for goods and services, but not in
intellectual property under a temporary agreement (a "moratorium") that has
been extended several times. The most recent two-year extension was agreed
atthe Bali Ministerial
December 2013.

Some of those opposing non-violation cases in intellectual property argue
that the TRIPS agreement is different from those dealing with goods (theGeneral
Agreement on Tariffs and
GATT, and related agreements) and services (the General Agreement on Trade
in Services <http://www.wto.org/english/docs_e/legal_e/legal_e.htm#services>,
GATS, and its subsidiary agreements). They say the TRIPS agreement is not
about market access but establishing minimum standards for protecting
Intellectual property.

Some opponents also argue that non-violation complaints would upset the
balance of rights and obligations in the TRIPS agreement and will elevate
private rights holders over the interests of the users of intellectual
property, by tilting the balance in favour of those owning the patents,
copyrights, and other intellectual property. They also fear that
non-violation cases would put at risk the use of flexibilities such as
compulsory licences, which governments can use to provide their people with
cheaper generic versions of patented medicines.

The proponents of non-violation complaints in TRIPS believe that it does
have a place. The US said and that WTO agreements ensure that
"recommendations and rulings of the Dispute Settlement Body cannot add to
or diminish the rights and obligations" provided in the TRIPS Agreement(article
3.4 of the Dispute Settlement

Switzerland said that a non-violation complaint could not be brought
against a measure benefiting from TRIPS flexibilities, including those
confirmed in the Doha Declaration on TRIPS and Public
because these measures had already been foreseen at the time of

The US said it is preparing a restructured moratorium for members to
consider in the next meetings.

Countries speaking against non-violation cases in this meeting -- some
calling for non-violation to be dropped completely from TRIPS -- were:
Brazil, Venezuela, China, South Africa, Cuba, Canada, India, Ecuador,
Pakistan, the EU, Bangladesh, Argentina, Mexico, Peru, and Rep. Korea.

Some, such as Brazil and South Africa, interpreted the TRIPS Agreement to
require agreement on how non-violation cases will be treated (the "scope
and modalities"), before the cases can be allowed. The US and Switzerland
continued to support non-violation cases. Japan continued to call for the
TRIPS Council to clarify the "scope and modalities".

Biodiversity back to

Members' positions remained broadly unchanged, particularly on whether the
TRIPS Agreement needs to be amended to require patent owners to disclose
the source of the genetic resources and related traditional knowledge used
in their inventions.

One of the main concerns is about unauthorized use ("misappropriation") of
genetic resources and any associated traditional knowledge in inventions
that are then patented, sometimes called biopiracy. Also of concern is "bad
patenting" when claimed inventions are protected even though they are not

All members agree that these need to be avoided. They disagree on how to do
it. Those seeking an amendment to the TRIPS Agreement see it as a way to
ensure that the agreement is compatible with the UN Convention on
Biological Diversity (CBD) <http://www.cbd.int/>. Those opposing it
continue to argue that there a better ways of tackling the problem.

Repeating their call for a "disclosure" amendment in this meeting were: the
least developed countries (Angola speaking), India, Indonesia, Brazil,
China, Ecuador, Bolivia, Bangladesh, Chile, Peru, South Africa, Cuba,
Venezuela, Egypt, Colombia, and the African Group (Nigeria speaking).
Opposing disclosure in this meeting were the United States and Japan.

This issue is linked to
the review of provisions on patenting inventions from plants or
animals -- Article
27.3(b) of the TRIPS
Some countries also oppose patenting any life forms and want this article
amended too. Taking this line in this meeting were: Bolivia, the least
developed countries (Angola speaking), Ecuador and Bangladesh.

The US said there is a tension between the opposition to patenting all life
forms and the push for a mandatory disclosure requirement through patents.

Meanwhile members also remained divided over whether the CBD Secretariat
should brief the TRIPS Council on the Nagoya Protocol on Access and
Benefit-sharing <https://www.cbd.int/abs/> (a supplementary agreement to
the CBD adopted in October 2010, which provides for the effective
implementation of one of the three objectives of the CBD: the fair and
equitable sharing of benefits arising out of the use of genetic resources).
The US noted that the Protocol had not yet entered into force and that only
a few of those who had spoken had acceded to

Some members  called for consultations chaired by the Director-General to
resume soon: they were Egypt, China, India and the African Group (Nigeria

Innovation and university technology partnerships back to

The discussion, proposed by the US, featured many examples of universities
contributing to innovation and the development of technology, and the
arrangements that countries have set up to make this work better. Sharing
their experiences were the US, Australia, Canada, Hong Kong China, the EU,
Japan, New Zealand, Chinese Taipei and Switzerland.

Developing countries had mixed views. Some, particularly India, were
worried about the commercialization of universities, basic research and its
free use by society at large being undermined in favour of commercial
research, and conflicts of interest when academics have a commercial
interest. (The US said Indian universities have contributed to Indian
technological advance, for example information technology; and said
universities have rules on avoiding conflict of interest.)

Brazil, Guatemala, El Salvador said this is a good topic to discuss. Brazil
said public policy has to deal with market imperfections and monopoly
(which comes with intellectual property protection) and to strike a balance
in order to optimize the benefits. Brazil then described its own university

Others back to top<http://www.wto.org/english/news_e/news14_e/trip_ss_25feb14_e.htm#top>

Review of notified legislation: South Africa reported on its new act
recognizing indigenous knowledge, which covers performance rights,
copyright, trademarks, terms and expressions, geographical indications and
designs. The law also sets up a national council on indigenous knowledge,
South Africa said.

"Notification and review" is the core work of many WTO committees because
it helps monitor how WTO agreements are being implemented. Currently, this
is less the case in the TRIPS Council because it deals with whole laws
rather than separate measures. The early years after developed and
developing countries first applied the TRIPS Agreement saw intensive and
sometimes lengthy reviews.

After a lull, notifications are increasing again as members report changes
to their laws, the Secretariat reported. Around 600 notifications have been
received since 2009, it said. The Secretariat is also working on methods to
improving tools for accessing the information online

CHAIRPERSON: Ambassador Dacio Castillo of Honduras (acting, in the absence
of Amb.Alfredo Suescum of Panama)

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