PADEMARK - Patent Attorneys/Trademark Attorneys in Vietnam

Forty-Fifth Series of Meetings of the Assemblies of Member States of WIPO is scheduled to be taken place in Geneva, Switzerland from September 22-30, 2008.

The Memeber States will discuss and make important decisions that will have great impacts on the operation of WIPO and the international intellectual property system in the years to come.

The issues to be approved at these Meetings, among other things, will include:

- Appointment of the New Director General;

- Report on the sessions of the Committee on Development and Intellectual Property (CDIP);

- Report on the Work of the Standing Committee on Copyright and Related Rights (SCCR), including the Protection of Audiovisual Performances and Protection of the Rights of Broadcasting Organizations;

- Report on the Work of the Advisory Committee on Enforcement (ACE), and the Enforcement of Intellectual Property Rights;

- Report on the Work of the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC);

- Report on the Work of the Standing Committee on the Law of Patents (SCP);

- Matters Concerning Internet Domain Names;

- Exchange of Priority Documents in the Area of Patents;

- Matters Concerning Article 6ter of the Paris Convention;

- Matters Concerning the Madrid Union;

- Matters Concerning the Hague Union;

- Matters Concerning the Lisbon Union;

- Matters Concerning the IPC Union;

- Matters Concerning the PCT Union;

- Matters Concerning the Patent Law Treaty.

The brief report of these Meetings will be available on our website (http://www.pademark.com ) soon after the Meetings.

These IP issues were discussed consistently by key delegations, but never rose to the level of full negotiation during the WTO mini-ministerial in Geneva that began on 21 July. The main issues remained agriculture and manufactured goods.

The week included a number of preliminary agreements but contained a deadly pill in agriculture. Talks fell apart after an agricultural safeguard measure for developing countries to raise tariffs in cases of import surges could not be resolved after 60 hours of deliberation. In progressive press briefings, ministers from both sides of the issue sounded particularly disappointed that a single issue would trip up the whole round, but Indonesia on behalf on behalf of the Group of 33 developing nations (which was represented by India in the group of seven governments that carried out much of the talks) told reporters the group as well as a majority of all developing countries tried in good faith to come up with an acceptable text and were still engaged on the issue when talks were ceased.

“It cannot be said the SSM [special safeguard mechanism] broke the negotiations, because we were ready to negotiate,” said Indonesia Trade Minister Mari E. Pangestu. “We still strongly consider an agreement was reachable.” She named several other issues problematic to ministers, including geographical indications. She also said talks could continue at some point in the future.

Ministers and WTO Director General Pascal Lamy Tuesday night would not predict whether talks would be resumed, but all agreed it would be extremely unlikely to come by the target of year’s end. “I don’t think there is any realistic chance of modalities being agreed this year or in the foreseeable future, and that is a source of deep regret in Europe,” said European Union External Trade Commissioner Peter Mandelson.

But it may be decided at the formal Trade Negotiations Committee meeting - expected on Wednesday - to capture all of the gains made so far, which might include the IP issues, though they barely moved past procedural questions of whether two issues have a mandate for negotiation.

While any continuation of this round, which began in Doha, Qatar in 2001, is unclear, ministers all stated their commitment to the WTO multilateral system. Lamy said negotiations will always be conducted at the WTO in some form, occasionally rising to the level of involving ministers, which he said in his experience is often needed to achieve real breakthroughs. But some mentioned a rethinking of the current trading system, the WTO, and the focus of negotiations, which could move to new topics like climate change.

Meanwhile, it remains to be seen what will happen to the TRIPS issues. One possibility is that focus could intensify bilaterally or at other institutions such as the World Intellectual Property Organization.

(Intellectual Property Watch)

Meanwhile, the president of the European Union Council of Ministers Anne-Marie Idrac today reconfirmed to the press at the World Trade Organization that for the EU, success in the current WTO negotiating talks means the inclusion of geographical indications, or product names associated with places and characteristics.

This came at the heels of a statement Tuesday by US Trade Representative Susan Schwab, who said the Americans had no intention of negotiating on the geographical indication issue dear to the EU and Switzerland, namely the extension of high-level protection measures currently enjoyed by GIs on wines and spirits to other goods, mostly agricultural products.

High-level government ministers from about 40 members are in Geneva for a mini-ministerial scheduled from 21-27 July, in which the WTO is trying to resolve long outstanding issues in its Doha Round of trade-liberalisation talks launched in 2001.

“For the EU,” said Idrac, “Geographical indications are a must. We must have progress here.” The EU is, she stressed, demonstrating a willingness to give very generous offers this week. “Reciprocity must be found in our offensive interests: non-agricultural market access, geographical indications, and services,” she said. This “means we want GIs included.”

“I can be more specific,” she added, noting that the EU wants GIs “included at this stage, as of July, at this point in time of the negotiations in the Doha Round.”

The WTO is the “centre of non-discrimination” in trade, Swiss Ambassador to the WTO Luzius Wasescha on GI extension told in Wednesday morning, “and here we have a discrimination” in protection measures based on whether the product is a wine or spirit or another agricultural good.”

He echoed Idrac in saying that GI issues, as well as biodiversity issues “have to be resolved,” as they are in the interest of a large number of members. Also Wednesday, India Minister for Commerce and Industry Kamal Nath declared biodiversity issues of continued high priority.

A participating delegate cautioned against “overestimating the [US] statement” on GI extension from yesterday, adding that “we expect the US, if participating in the process,” to engage with the GI and other IP issues. With 100-some countries in favour, the US “won’t be able to avoid it.”

“This is why they’re here in Geneva,” the delegate concluded.

There are three intellectual property topics at issue this week. First, the creation of a register for GIs on wines and spirits, which is mandated by the Doha Declaration and where disagreements remain only on its nature and scope. Second is GI extension, where there is strong disagreement between nations in strong support, primarily Switzerland and the EU, and nations in strong opposition, notably the United States but also Australia, Canada, Japan, and others.

Third is the proposal to amend the TRIPS agreement to bring it in line with obligations under the UN’s Convention on Biological Diversity to protect the rights of indigenous communities to control their genetic resources, often referred to as the CBD amendment. The most basic proposal here includes disclosure of origin of genetic resources, and stronger proposals also ask for evidence of prior informed consent of the communities from which genetic resources are derived, and also for programs to ensure benefit-sharing with those communities.

At press time, Norwegian Foreign Minister Jonas Store was preparing to meet with proponents of the GI and CBD issues in one consultation, and the “like-minded” opponents in another consultation, to be completed before a later evening meeting on the issues with Lamy.

IP Proponents Strive to Keep Solidarity

Some were interpreting Schwab’s statement yesterday as indication of a schism between the three IP issues: Lamy had according to sources suggested that GI extension would be the hardest of the three issues to negotiate, and that GI register/CBD amendment might have a better chance of going forward.

But proponents of IP issues are standing strong in together in the view that these three issues must be addressed in unison.

“People are not willing to accept separation” of the IP issues, said a Pakistani delegate. Opponents will “try to separate” them, the delegate noted, but to the proponents, the IP discussion this week is “all or nothing.”

Of course, the delegate added, as the emphasis is on all three issues the outcome will necessarily be diluted. It will be a political rather than a substantive agreement this week, the delegate continued, as one “cannot ask the maximum for everything” and must use the lowest common denominator to garner support. The CBD amendment language is soft in draft modalities released last week, full of “to be negotiated…” caveats, the delegate said. The GI register language of the draft modalities also is vague compared to earlier proposals.

Push For Biodiversity Amendment Remains Strongest IP Issue

But it is the need to align international IP trade rules with biodiversity and traditional knowledge protection that has received the greatest attention from members, mainly developing countries.

Such an amendment “we believe is a part of the mandate,” Nath told a press conference Wednesday. “We would like to ensure that it is locked in,” he added. “True, it is not a part of modalities, but it is certainly a part of the [Doha] Round. When there is a ministerial engagement, we must lock in crucial issues” such as the CBD amendment, he concluded. India also raised the issue in its statement to the informal Trade Negotiations Committee Tuesday.

The Africa Group reiterated its commitment to the agreement as well, calling it “still high on the agenda” and emphasising the need to “achieve concrete results on the issue, which is still of the utmost importance to the African continent” in a statement following the meeting of the African Union on 20 June.

An ambassador from Asia who supports the CBD amendment expressed concern over how the rich biological resources from that region of the world could be protected without an amendment.

“TRIPS is binding,” said the ambassador, “so we want to establish the link [with biodiversity]. Otherwise, there is no way of claiming benefits for use of genetic resources that has legal ramifications.” Non-governmental organisations have been educating people in rural areas within this source’s country, and now there is an understanding that those resources may be translated into wealth. Also traditional knowledge once “played a vital role” in people’s health. It is important to ensure the protection of indigenous information and local resources, he concluded.

Brazil, which has been outspoken in favour of negotiation of the IP issues, also continues to emphasise it this week, a top official said.“We are working together with the Europeans, Africans and others who have an interest [in the CBD amendment] to see if we can find a way out of the CBD-GI conundrum,” Brazilian Ambassador Roberto Azevedo told Intellectual Property Watch on Wednesday. Brazil will be active on the issue during the week, he added.

WTO Director General Pascal Lamy is expected to continue convening meetings on the TRIPS issues, he said. But, he added, “there are too many things to cook and the pan is too small.”

Another source said that where there is resistance to IP issues, it is more toward GI extension than to TRIPS/CBD.

But the state of play as of this afternoon looked grim, said a Peruvian delegate. Most discussion so far has been on the GI register, and not on GI extension or the CBD amendment, which are the more controversial issues. According to the source, Lamy – who is chairing talks on IP issues – felt that if no progress could be made in the GI register, trying to develop the two harder areas would be unwise.

NGOs Weigh in on Need for TRIPS Amendment

Martin Khor, Director of the Malaysia-headquartered NGO Third World Network, said that “the expansion of biopiracy is giving a bad name to the TRIPS agreement, and allowing the serious criticism that TRIPS and the WTO are facilitating an unjust process of misappropriation of knowledge and genetic resources through the use of IP laws.”

Further, the current CBD proposal is very limited. The original had proposals for prior informed consent and access and benefit-sharing, whereas now all that is on the table is disclosure, said Khor. And even this disclosure requirement only mandates that a patent applicant disclose origin to a national patent office. The patent office is not then obliged to tell the public, which would be far more useful. But this is a welcome first step, Khor added, and should be adopted “as a minimum, because it is really not asking much. There is really no justification for any objection.”

TRIPS was amended in 2005 for public health purposes.

Another NGO source said that without a disclosure requirement, the burden of challenging misapproriation is placed squarely on the heads of those who have had their resources misappropriated. This is expensive, said the source, adding that TRIPS has to be the venue since other processes – such as WIPOs Patent Coopration Treaty, which is procedural and non-binding, and the CBD itself, which is neither trade nor IP related – lack any legal bind.

Massimo Vittori of the GI lobby group oriGIn said his group is “concerned by the refusal of the USA to debate the topic of “extension". Millions of GI products from all over the world would not understand nor support any regime de facto consolidating “first class” and “second class” producers enjoying different standards of protection. No socio-economic reasons justify such discrimination.” He added that “it runs against the Doha spirit.”

(Intellectual Property Watch)

Ministers from some IP-proponent countries raised the issues as critical to the heads of delegation meeting on Monday, the first day of the mini-ministerial in Geneva, while opponents held a meeting of like-minded countries reinforcing their position against the inclusion of IP issues in the talks, sources said.

WTO Director General Pascal Lamy began on Friday to talk with officials about IP issues in an attempt to find a way to navigate the standstill on them, sources said. Lamy held meetings on Friday, Saturday and Sunday, they said. However, on Monday evening, the issue was not a primary topic of the Green Room meeting, the smaller, closed gathering held in Lamy’s office. The ministerial is scheduled to run from 21-27 July.

The focus in the next few days is expected to be squarely on the issues of agriculture and non-agricultural market access (NAMA) before IP issues become critical, if at all, according to several sources. But the outcome of the mini-ministerial (about 40 of the WTO’s 153 members) will be tied to addressing demands from the European Union, Switzerland, India, Brazil and others on issues related to intellectual property and trade.

The IP issues are: the creation of a mandated register on geographical indications - product names associated with a place and characteristics - for wines and spirits; extension to other products of the higher-level GI protections currently enjoyed by wines and spirits; and an amendment to the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) to require the disclosure of origin of traditional knowledge and genetic material in patent applications, intended to bring TRIPS in line with the UN Convention on Biological Diversity (CBD).

A draft modalities text has been prepared by proponents, claiming support from a majority - over 100 - of WTO members. The text, TN/C/W/52, is now posted as a document to the WTO website. The opponents’ longstanding position favouring a voluntary register and database for consultation, referred to as the joint proposal, has been submitted again and posted as document TN/IP/W/10/rev.1.

A possible split in the IP issues may have been suggested by Lamy, according to sources. It generally has been the view that the GI register and the CBD amendment might have more middle ground for negotiating, while the GI extension might be more two-dimensional, sources said.

But such a split would not be acceptable to IP proponents, an official from a proponent country said.

And the opponents’ meeting on Monday, which included countries such as Australia, Chile, Costa Rica, Mexico, New Zealand and the United States, reconfirmed the view that none of these issues should be discussed this week, according to a participant.

“There is no place to bring those issues here,” Costa Rican trade minister Marco Vinicio Ruiz told afterward. He called the TRIPS issues “too confused” for this high-level meeting.

Informal TNC

In the heads of delegation meeting on the first day - an informal meeting of the WTO Trade Negotiations Committee (TNC) - no opponents made public statements against the issues.

Some statements are being posted to this page of the WTO website.

In the informal TNC, the European Union insisted that GIs and Peru insisted that CBD issues are critical to being able to accept an outcome on the other issues.

“On the European side, as on others, there are some political ‘must-haves’,” Peter Mandelson, European Union trade commissioner, said in his statement. “In agriculture, NAMA, services and GIs. We are prepared to offer more than others in this round, but everyone must understand that we need something in return.” The EU has said that stronger protection of GIs would help sell cuts in agriculture back home.

Mandelson explained that the EU “will be the major net loser” in any deal on agriculture, that the region is bringing a “groundbreaking reform of agricultural support,” and that on NAMA Europe will “cut every tariff line, without flexibilities” for entry into “the most valuable market in the world.”

But Europe is only willing to do this if “others also step up to the plate.” This must, Mandelson said, “include moves on questions such as geographical indications.” He added: “They are a form of intellectual property, entitled to effective legal protection.”

Switzerland also spoke about the importance of the IP issues. “More than two-thirds of the WTO membership, including Switzerland, support a modalities decision in favour of the three TRIPS issues - GI-extension, GI-register and CBD-TRIPS,” Swiss Federal Councillor Doris Leuthard said in her statement. “This vast group of WTO members, developing and developed countries alike, requests ministers to mandate text-based negotiations to come up with a solution to these three issues as part of the single undertaking. This is a significant development, which we cannot ignore.” She added: “I expect rapid ministerial involvement on this issue.”

In addition, Kenya on behalf of the African Group also made a reference to IP issues in the informal TNC, a source said.

However, Brazilian Industry Minister Celso Amorim did not mention IP issues in his statement, despite his nation being one of the key proponents of the issues.

WTO Press Secretary Keith Rockwell said that at Monday morning’s informal trade negotiations committee meeting, 30 ministers took the floor to express “very strong support” for concluding negotiations on agriculture and industrial goods, along with other areas. These “in-between issues” included services, rules (anti-dumping, fisheries), and TRIPS-related topics. There were no apparent shifts in positions, he said.

“These are very difficult negotiations,” Rockwell said. “The director general has been having negotiations on these issues quite regularly,” some daily. He suggested “keeping a close watch in the days to come.”

An Indian delegate told Intellectual Property Watch that “the ball is in Lamy’s court” on the IP issues. A separate source explained that as informal meetings had failed to make progress towards convergence, it would be up to the DG to “come up with something” that could satisfy both sides. Lamy has in recent weeks indicated that unless sides could come closer together on IP issues, that they might trip up the ministers’ talks.

Bolivian President Evo Morales Ayma issued an in-depth statement harshly criticising the WTO and calling for substantive change. On IP issues, Morales said: “The intellectual property regime established by the WTO has most of all benefited transnational corporations that monopolise patents, thus making medicines and other vital products more expensive, promoting the privatisation and commercialisation of life itself, as evidenced by the various patents on plants, animals and even human genes.” He urged negotiators to: “Limit the monopolies of large corporations on intellectual property, foster the transfer of technology and prohibit the patenting of all forms of life.”

Peru at the informal TNC reiterated that the relationship between TRIPS and the Convention on Biological Diversity is of “great importance” and is closely “related to the development of our country.”

As a development issue, this relationship “cannot but be squarely addressed during this Development Round,” said Mercedes Araoz Fernández, Peruvian minister of trade and tourism.

“It is clear that a solution to this problem [of biopiracy] - which affects in an acute way developing countr[ies] - requires incorporating a universal obligation to disclose the origin of biological resources and traditional knowledge in patent applications.”

She also mentioned wide support for prior informed consent and access and benefit sharing. Peru, India and others have sought to ensure the prior informed consent of communities where genetic resources or traditional knowledge are found, and to ensure access and benefit sharing with the communities.

Araoz acknowledged that other TRIPS issues were key, and said Peru considered all TRIPS-related issues to be on “an equal footing,” and that “each of them must have clear guidance from us through a strong negotiating mandate to successfully conclude all these outstanding issues with the single undertaking.”

“In the past,” Araoz concluded, “We were able to be up to the task before us … no matter how daunting it may have appeared. I don’t see why we should shirk this time.”

(Intellectual Property Watch)