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 andato246
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
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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)
Chairman’s 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 (33+11).
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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.
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