“Overall, I would not say that the gaps are narrower, but that they certainly are better illuminated. I think we now have a better practical sense of what it could mean to bridge those gaps, if and when the decision come to try to construct that bridge,” he said.

Mr Lamy said he had held three consultations since he last briefed members on 27 July 2009. The participating delegations were: Argentina, Australia, Brazil, Canada, Chile, China, Egypt and then Gabon for the African Group, the EU, Japan, Mauritius for the ACP Group, New Zealand, Norway, Peru, South Africa, Switzerland, Tanzania and then Zambia for the LDC Group, and the United States.

Geographical indications: 'extension'

On geographical indications, he said the consultations covered:

the differences between the two levels of protection: the standard level of TRIPS Article 22, and the higher level of TRIPS Article 23, which currently only applies to wines and spirits

the possible effect of extending the higher protection to other products (“extension”)

the experience of protecting geographical indications under present standards

how protecting geographical indications compares to protecting other types of intellectual property

how exceptions and limitations would apply under “extension”.

One way of distinguishing between the two levels of protection is how a term would be tested to see if it violated a protected geographical indication. For the standard (Art.22) level, a term would fail the test if it misled or confused consumers about the origin of the good. For the higher (Art.23) level if would fail if it was just incorrect (even if the true origin is inidated), ie, it did not come from the geographical location and have the required characteristics.

Mr Lamy described in some detail how all these issues were discussed. Members still disagree on whether “extension” could be useful but some issues are clearer, he said.

“Essentially, the differences concern whether it is desirable and beneficial to broaden the scope of enforceable rights that surround a GI once it is protected, whether through the trademark system or otherwise, and how to deal with the implications for third country markets, including continued access for current products considered as legitimate generics,” he concluded.

TRIPS and biodiversity

On proposals related to biodiversity and traditional knowledge, Mr Lamy said members agree on the objectives but differ on how to achieve it.

They clearly want to avoid patents being granted in error, to ensure inventors using genetic resources and any associated traditional knowledge comply with conditions for use (“prior informed consent” or PIC) and for sharing benefits (sometimes “access and equitable benefit sharing” or ABS), and to enable patent offices to have enough information to decide whether a patent can be granted correctly, he reported. (Together, these are sometimes described as avoiding “misappropriation” or “biopiracy”.)

Members disagree on whether the solution lies in amending the TRIPS Agreement to require patent applicants to disclose the origins of genetic material and any associated traditional knowledge used in their inventions (“disclosure”).

Mr Lamy said his consultations focused on the following topics:

the legal character of misappropriation

measures to avoid it

the legal scope of an approach based on national systems

costs, burdens and legal certainty of the proposal to require inventors to disclose.

Mr Lamy concluded that members understand that reforming the patent system alone would not be enough to ensure proper access and benefit sharing.

“In sum, there is general agreement on the public policy objectives, including ensuring equitable benefit sharing, but differences clearly remain on how to arrive at those goals in practice,” he concluded.

The discussion

In their comments, members continued to differ on the substance of the issues and whether these two issues and a third (the multilateral register for geographical indications for wines and spirits) should be linked (see “What's this about” box).

Several delegations favouring the link also asked Mr Lamy to report to forthcoming meetings aimed at taking stock of the Doha Round negotiations. Some others said the stock taking should keep to the mandate of the Trade Negotiations Committee, the umbrella body overseeing the negotiations.

Speakers were: Argentina, the EU, India, Chinese Taipei, Cuba, Turkey, Australia, Switzerland, China, Japan, Brazil, the African-Caribbean-Pacific group (Mauritius speaking), the least developed countries (Angola speaking), Chile, Thailand, Peru, Canada, US, Pakistan, El Salvador, Sri Lanka, Indonesia, Venezuela, New Zealand, Barbados.