[Ip-health] IP-Watch: A Brief Overview Of Current IP Issues At The WTO

Thiru Balasubramaniam thiru at keionline.org
Tue May 6 10:23:25 PDT 2014


A Brief Overview Of Current IP Issues At The WTO

By William New, Intellectual Property Watch on 05/05/2014 @ 6:40 pm

Intellectual property issues may not be at the top of the post-Bali
negotiations at the World Trade Organization, but there are many IP-related
issues going on at the WTO. Below is an overview of some current and
possible IP-related issues.

Some of the issues were mentioned at the 23-24 April Fordham IP Institute
annual conference in New York by Wolf Maier-Ewart, counsellor in the WTO IP
Division, who gave a short overview of recent developments at WTO. Others
are based on *Intellectual Property Watch* reporting and available

The WTO ministerial in Bali, Indonesia, in December injected a new energy
into negotiations at the WTO, but this hasn’t translated into substantive
progress on issues related to the Agreement on Trade-Related Aspects of
Intellectual Property Rights (TRIPS).

Discussions on TRIPS-related issues “remain deadlocked,” Maier-Ewart said
after his presentation. These include a multilateral register of
geographical indications for wines and spirits, a proposed extension of
higher-level GI protection to other products beyond wines and spirits, and
a proposal to amend TRIPS to require disclosure of origin of genetic
material in patent applications.


Another issue is the extension of the transition period for least-developed
countries to enforce intellectual property rights. WTO members last June
agreed to extend the transition 8 years to 2021. There may be discussion
about not allowing “rollbacks” by countries during the transition, meaning
they cannot make changes to their IP laws that are less than TRIPS. While
the previous extension had legally binding language, the new one does not (
*IPW*, WTO/TRIPS, 7 June

Meanwhile, the transition for IP related to pharmaceutical products is
2016. This may lead to new efforts by least-developed countries to look for
another extension of that deadline.

Yet another topic is the moratorium on use of TRIPS-related “non-violation”
measures. The Bali ministerial extended the moratorium another two years,
but work may be intensifying on the issue, Maier-Ewart said. One
possibility could be to make a permanent moratorium, or members could
decide to allow its use.

And it was also pointed out that while there has been a relative freeze in
substantive negotiations, the WTO Council on TRIPS remains a place of
lively debate for current issues. Recent proposals and debates have been on
environmental technologies, supply chains, and sports and IP.

“The forum continues to provide a much-needed policy debate,” said

Another significant area of work for WTO that relates to IP rights is
dispute settlement cases.

There are a number of cases that relate to IPRs, for instance, the current
trademark and geographical indications case brought by five nations against
Australia’s public health measure requiring plain packaging for tobacco

Closely watched are “cross-retaliation” cases, in which the winner of a
case about something else is given the right to retaliate against a
country’s IP rights. One such case involved Brazilian cotton against the
United States, and another is Antigua and Barbuda’s case against the US
over blocking of gambling services.

Another recent subject of dispute has been goods in transit. One involved
European Union seizures of Indian generic drugs bound for developing
countries like Brazil. The EU changed its enforcement directive to limit
seizures to goods if there is a real threat of diversion to its market, and
the case seems to have settled down.

Separately, there was a case in which government-funded research generating
private patents was seen as an illegal subsidy. The case involved the US
company Boeing’s large civil aircraft, and asked whether the allocation of
patent rights to private entities (with government march-in rights that
have never been used) under the Bayh-Dole Act is a subsidy. The European
Union argued that Boeing was able to obtain valuable patents under
contracts with government agencies like the Defense Department and the
National Air and Space Administration (NASA).

Yet another area of activity at the WTO is coherence in trade agreements
around the world. Regional, bilateral, plurilateral trade agreements have
grown, giving rise to increasing complexity. Issues that arise at those
levels can rise to the multilateral level. Non-violation clauses might be
an example.

And the WTO provides technical assistance to members on TRIPS
implementation and other issues

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