As the clock ticks down to next month's World Trade Organization (WTO) ministerial meeting in Hong Kong, the 148 member governments are as far apart as ever. Nations are split over the future direction of world trade, with policies on farming subsidies and agricultural tariffs dividing the world's two biggest trading blocs – the EU and US. Despite attempts in recent months to break the impasse and achieve a deal, the key agricultural disputes remain unresolved.

Breaking the deadlock on agriculture will determine the success of the WTO's sixth ministerial conference in Hong Kong from December 13 to 18. Agriculture is at the heart of a declaration adopted by WTO members at their ministerial meeting in Doha, Qatar, in 2001, to find a consensus on a number of issues by January 2005 that would change world trade to benefit both developed and developing countries. But political differences, mainly on agriculture, have deadlocked discussions since the last ministerial meeting in Cancún, Mexico, in 2003, crushing hopes for completing the Doha negotiations by a January 1 2005 deadline. Earlier this year WTO members unofficially extended the deadline to the end of 2006.

To avoid another Cancún fiasco, hopes are now pinned on achieving progress in the negotiations leading up to Hong Kong. Discussions are in full swing. But as MIP went to press, the likelihood of an agreement looked slim.

What's at stake

The complications slowing down WTO negotiations go further than the US-EU discord on agriculture. Tensions exist on a range of topics, including three core IP issues: 1) between developed and developing countries on access to cheaper medicines, 2) between bio-resource-rich developing countries and developed countries on ways of protecting traditional knowledge and genetic resources and 3) several countries led by the US, and the EU – supported by several developing countries – on the scope of protection of geographical indications (GIs).

WTO officials say that IP topics will not be key to the negotiations in Hong Kong. It remains unclear whether they will even make it on to the Hong Kong agenda. The core issues will be agriculture, non-agricultural market access, the liberalization of trading services and development. But the effect of the discussions on GIs, access to drugs and traditional knowledge should not be underestimated. "They are issues which could play a role in the success of the meeting and provide the necessary degree of balance to make a successful outcome on the core issues possible," a senior source close to the WTO said.

Would the failure to include these IP issues in the Hong Kong agenda be a missed opportunity? Looking at the effects that cheaper drug access for developing countries, or extended protection for geographical indications, or disclosure of the origin of traditional knowledge in patent applications could have on world trade, the answer is yes.

"Indications by the EU and US that we are ready to move on agriculture, in the context of an overall deal, are the key to unlock the rest," Peter Mandelson, EU trade commissioner, told EU member states on October 18. He stressed the EU's goal to reach a balance between the agricultural negotiations and all other areas of negotiation. "No agreement will be reached on agriculture until agreement is reached on other issues," he said.

Member governments have so far failed to agree on the IP issues, which are being discussed under the WTO's Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs). The goal of TRIPs is to narrow the gaps between national IP rules by bringing them under common international rules. At the end of October the WTO announced that member states had still not agreed on the three IP topics.

However, in light of the EU's thinking that "nothing is agreed until everything is agreed", the prospect of some IP deals should not be ruled out. The official line that IP and TRIPs may or may not make it onto the Hong Kong agenda is known. Unknown by many is that IP issues are also being discussed in the agricultural committee, independently from the TRIPs discussions, and are likely to have a bearing on the outcome of Hong Kong.

In the following articles MIP takes a look at each of the three IP topics, finding out how important they will be, what the key issues are, who the stakeholders are, how they affect world trade, and the prospects of a deal in the next few months. The focus, however, will be on GIs, which are seen as the most important at this stage and the most likely to have an impact on the Hong Kong discussions.

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What's in a name

Parma ham and Parmesan: protected as GIs in the EU

The debate over international trade rules on GIs has led to stalemate in the WTO. Members clash over the scope of protection, GI extension and protection mechanisms for prior trade marks and generic names. Stéphanie Bodoni asks if a resolution is near

On October 11 a European court cancelled US company Anheuser-Busch's right to the trade mark Budweiser in Portugal, upholding the right of its Czech rival, Budìjovick´y Budvar, to the name Budweiser as a designation of origin. The ruling brought to an end a case started by Anheuser-Busch in 1981 to cancel the protection of the name as a registered designation of origin in Portugal. Eight years earlier the US company had tried to register the name as a trade mark, but failed because of Budìjovick´y's registered designation. In 1995 the court allowed Anheuser-Busch to go ahead with the trade mark registration. But after an appeal by Budìjovick´y the court overturned the first instance ruling, based on a 1986 bilateral agreement between Portugal and Czechoslovakia – today valid in the Czech Republic – which protected registered designations of origin. The ruling was later upheld by the Portuguese Supreme Court.

The latest ruling in October was not surprising in light of the century-old battle between the two companies over the Budweiser name. The two breweries are involved in almost 40 court cases worldwide with around 40 administrative proceedings before patent offices. What was new about the ruling was that it was given by the European Court of Human Rights, based on the European Convention of Human Rights.

The decision by the Court to diverge from its traditional remit and hear an IP case involving trade marks and designations of origin is momentous and reflects the growing economic importance attached to IP rights. This is also reflected in the controversy that geographical indications (GIs), which fall into the same rights category as designations of origin, have attracted in the WTO world trade discussions in recent years.

GIs in the WTO

GIs are the most controversial IP issue in the run-up to the WTO's ministerial meeting. One senior WTO source described member states' positions as being "as divided as they have ever been".

The WTO GI dossier consists of three separate parts: the creation of a multilateral system of notification and registration for GIs covering wines and spirits; extending GI protection beyond wines and spirits to all goods, including food and handicrafts; and the EU's claw-back proposal, which is not part of the TRIPs negotiations, and seeks to take back more than 40 product names used around the world for the exclusive benefit of EU producers. The goal of the TRIPs Agreement is to set a standard across WTO countries providing balanced protection for GIs and trade marks based on the prior right on a country-by-country basis. But the slow implementation of TRIPs and member states' clashing opinions on whether trade marks or GIs should prevail, or how conflicts should be handled, have halted further progress.

Hope came in June when the EU submitted a new proposal on a multilateral register, addressing the issue of conflicting GIs and prior trade marks, which its previous proposal lacked. The change of stance followed a WTO panel dispute triggered by US and Australian accusations that EU protection rules on GIs were discriminatory and did not comply with TRIPs. Leaving all sides claiming victory, the panel decisions confirmed last March that the EU GI Regulation was in need of some updating in line with TRIPs, including the recognition of prior trade mark owners' rights to attack registered GIs.

The new EU proposal foresees amending the TRIPs Agreement and introducing a legally binding system requiring member states to report their GIs to the WTO, which in turn would inform other member states, giving them 18 months to challenge the proposed GIs. Unchallenged GIs would fall under the protection of all WTO member states. The EU considers that, under certain circumstances, a prior trade mark could block a later GI. "In its original proposal the EC didn't envisage the possibility that existing GIs could be stopped on the grounds of existing trade marks, based on the belief that there was no need for that because TRIPs requires coexistence between the two. That belief is now history due to the WTO Panel decision," said Burkhart Goebel, a partner of Lovells and a specialist on TRIPs-related implementation issues in the WTO. The worldwide dispute between Anheuser-Busch and Budìjovick´y over the names Budweiser and Bud shows what can happen when a registered trade mark is similar to a registered GI.

The so-called new world countries – the US, Australia, Argentina, Canada, Chile, the Dominican Republic, Ecuador, El Salvador, Guatemala, Honduras, Japan, Mexico, New Zealand and Taiwan – oppose a compulsory register. Their joint proposal foresees a more trade mark-friendly voluntary database system, where countries would notify the WTO of their GIs, serving as an information source for other countries. A third proposal, by Hong Kong, seeks a middle ground between the other two proposals providing for GI protection across those member states that choose to participate. Major differences remain over the legal effect of the EU's proposed register, and the meaning of voluntary under the US-led proposal.

The new WTO director-general

WTO member states are looking to Pascal Lamy, WTO director-general since September 1, to infuse the Doha round with renewed energy ahead of Hong Kong. Lamy can build on his experience as EU trade Commissioner, in which role he represented the EU at the WTO's last ministerial meeting in Cancún. During his five years in the EU Commissioner's role, Lamy represented the EU's position on international and IP-related trade issues. His task at the WTO will not be easy. But speaking to the WTO in October Lamy talked of a new momentum in the negotiations. He stressed the need for the implementation issues of TRIPs and public health to be taken in an appropriate way in the run-up to Hong Kong, committing himself to personally consult on issues related to the extension of GI protection. He said the ground to be covered in a short time was vast: "But I am convinced it is not impossible. It can be done, and I believe that a number of issues are ripe for rapid movement once other sectors unblock."

Some countries have criticized the EU's new register proposal, which is bundled together with its plans to extend GI protection beyond wines and spirits. They say this would add costs instead of benefits. Others say that the controversy surrounding GI extension will put progress on the register at risk. "This was a mistake and is in particular frowned upon by the wine industry, which is keen to get a GI register, but now they fear that the extension issue will block the register issue," said Goebel.

Real GI controversies

Plans to extend the scope of GI protection beyond wines and spirits are driven by the EU and Switzerland, with the support of Bulgaria, Turkey, Jamaica, Sri Lanka, Guinea, Kenya, Morocco, India and Thailand. The countries opposing GI extension – the US, Australia, Chile, Argentina, Chinese Taipei, Uruguay, Canada, Brazil, New Zealand, Singapore and Nicaragua – claim that this would put the rights of trade mark owners at risk and add unnecessary costs. They are backed by a strong lobby of trade mark owners. "As a major worldwide trade mark owner, we would oppose any amendment that would enhance the protection of geographic indications at the expense of trade marks," Stephen Burrows, chief executive officer and president of Anheuser-Busch, told MIP. "Such an amendment could lead to costly and ongoing litigation across the globe."

EU attempts to alleviate such concerns by referring to its June proposal, which it says increases flexibility for the protection of generic names used in good faith and prior trade mark rights, again failed at an October 26 TRIPs Council meeting.

Despite the controversy, the EU took extension a step further in 2003 by proposing a list of 41 European product names it claims belong to EU producers and should be protected as European GIs (see a full list right). The list includes names which many would claim are generic, such as Parmesan, Champagne and Parma, and others whose status is disputed, even in the EU (see box on Feta). Following the accession of 10 new EU member states in May 2004 the EU wants to extend the list further. Opposing countries, led by the US and Australia, criticize the claw-back initiative for pushing GI protection to absolute protection, regardless of the economic consequences for non-EU producers. "The claw-back initiative is presumably the most disturbing one from a principle point of view," Goebel said, "whereas extension would most likely have the biggest adverse impact on the industry."

The proposal compliments and contradicts TRIPs at the same time, with the EU comforting countries in the TRIPs discussions by promising some exceptions, but at the same time nullifying them in the agricultural talks. Unlike the EU's June proposal to the TRIPs Council, the claw-back proposal does not foresee exceptions for prior trade mark rights or generic names. Critics say that this is why the EU moved it to the agricultural negotiations, describing it as "pure confiscation" and as "running against the whole of TRIPs". Sources close to the WTO admit that "it certainly raises some complexities about the whole issues". Some countries do not recognize the legitimacy of claw-back as a proposal within the mandate of the agricultural negotiations. But sources at the WTO brush off any problems, pointing to the lack of movement on the GI issue generally and that claw-back "hasn't even been really discussed".

The EU claw-back list

This list includes two annexes by the EU, claiming that the protection proposed also covers translations, such as "Burgundy", "Champaña", "Coñac", "Port", "Sherry", "Parmesan/o" and "Parma ham". Transliterations in other alphabets, such as "ÊÎÍÜßÊ" for Cognac, are also covered. The EU plans to extend the list with GIs originating from the 10 EU accessions countries. Wines & spirits Beaujolais Bordeaux Bourgogne Chablis Champagne Chianti Cognac Grappa di Barolo, del Piemonte, di Lombardia, del Trentino, del Friuli, del Veneto, dell'Alto Adige Graves Liebfrau(en)milch Malaga Marsala Madeira Médoc Moselle Ouzo Porto Rhin Rioja Saint-Emilion Sauternes Jerez, Xerez Other products Asiago Azafrán de la Mancha Comté Feta Fontina Gorgonzola Grana Padano Jijona y Turrón de Alicante Manchego Mortadella Bologna Mozzarella di Bufala Campana Parmigiano Reggiano Pecorino Romano Prosciutto di Parma Prosciutto di San Daniele Prosciutto Toscano Queijo São Jorge Reblochon Roquefort Source: European Commission

It is this uncertainty which casts doubts over the scope of the claw-back proposal and whether it might be used as a bargaining tool in the heat of the discussions on finding an agricultural agreement in Hong Kong. The question is whether agricultural exporters, including opponents to GI extension such as Brazil, will be convinced in the coming months that showing some flexibility on GIs might bring them the type of agricultural agreement they need, or if not, that it will come at their own cost.

The debate in the EU

The EU is keen on GIs and has never made a secret of it. GI-protected wines and spirits have benefited the EU economy. EU figures show that out of the €5.4 billion of EU exports for spirits, €3.5 billion come from GI-labelled products. EU countries own more than 4,800 GIs, of which 4,200 are for wines and spirits. France, a strong GI-proponent, owns around 600 GIs of which almost 500 cover wines and spirits. France's GI products generate €19 billion. Extending GI protection to all products and enforcing their protection under the global helm of the WTO therefore remain key EU objectives. "The question really is to what extent GIs will be a necessary sweetener for finding a compromise in the agricultural discussions," the senior source close to the WTO says.

Tensions are rising within the EU. Several member states, including France, Spain, Italy and Portugal, have pushed the EU not to show any flexibility on agriculture without their prior approval. The member states least keen on agricultural liberalization, supported by their farming industries, stand to gain on GIs. But the EU wine and spirit exports industry is not happy about the EU's extension and claw-back plans. Their fear is that if you ask for too much, there will be a backlash, which for them would be another failure of an agreement on the multilateral register. "They said quite openly that they are against the claw-back list and that it has only widened the gulf between the EU and France, and between the US and France," said Antonio Berenguer, who is in charge of GIs and WTO IP negotiations at the European Commission's trade directorate-general.

Negotiations on a wines and spirits GI register have been an EU priority since 1997. Despite its strong interest in GI extension, it seems the EU's initial involvement in that debate grew out of a political move. Sources say that one way to unblock the register was for it to find new allies by joining the debate on extensions, which it actively did in 2002. A growing frustration with the lack of progress in the TRIPs discussions is what finally seems to have triggered the claw-back proposal by the EU's agricultural directorate-general. The underlying thinking is that a limited list of some 40 names could be more acceptable to WTO members than the GI extension proposal.

However, supporting the EU's extension proposal, Berenguer says that fears about a GI explosion across all 148 WTO countries are exaggerated, stressing that the TRIPs Agreement is a norm-setting treaty: "How many European GIs have so far used the TRIPs rules to seek protection in third countries?"

Solution is flexibility

Following their failure to meet the original Doha deadline of January 2005, WTO member states have until the end of 2006 to finalize their negotiations on TRIPs. The outcome of Hong Kong will be crucial. Opponents and supporters of the GI proposals show few signs of budging. The EU says that it is ready to show some flexibility. It is aware of other countries' concerns, which is why it floated a flexibilities paper on points it is ready to change. But opponents rejected it as not being enough, demanding that the EU give up extension and the mandatory register. "It is very difficult to negotiate if there is zero willingness on the other side," says Berenguer.

One of the major priorities of the US-led camp is not to re-open the debate on TRIPs completely, a view supported by the wines and spirits industries. However, this is exactly what the introduction of the claw-back proposal to the agricultural negotiations round could do. The other concern is the uncertainty as to the scope of GI extension under TRIPs or a legally binding register. GIs are not the real problem, says a spokesperson for Anheuser-Busch, a strong voice in favour of the US position. The real problem, the spokesperson says, is introducing broad GI rules or GI extension plans that would put trade marks or generic names at risk: "We don't have a problem with GIs but they should be governed by the same rules as govern other IP rights."

Despite its setback in the Budweiser case before the European Court of Human Rights in October, Anheuser-Busch says the ruling confirmed that registered trade marks are property rights and that the European Convention on Human Rights protects them against being taken away by GIs. "It established a very important precedent," said Anheuser-Busch's spokesperson. "It puts into question the legality of the claw-back initiative."

"Hong Kong will not be the end of the story," says Berenguer. "It will simply unlock a set of negotiations that are in a stalemate." However bleak the outlook at this stage, those involved in the debates remain hopeful of achieving some progress in Hong Kong. The only way forward is for all parties to show flexibility. But at this stage it will be difficult for countries to show any flexibility on one of the issues without knowing how the other two are going to be handled.

The EU Feta debate concludes

The European Court of Justice (ECJ) last month brought to a close one of the most controversial GI disputes, removing the right of any non-Greek EU producers to use the name Feta for cheese. Though the jurisdiction of the ECJ covers only the EU, the decision in favour of Greece in Federal Republic of Germany and Kingdom of Denmark v Commission of the European Communities on October 25 supports the European Commission's wider plans in the WTO to achieve global protection for Feta as a European GI. Feta is included in a list of 41 names which the Commission submitted to the WTO agricultural round under the Doha negotiations, seeking their protection as GIs for the exclusive use of EU producers. The so-called claw-back proposal is criticized by many WTO countries for disregarding the generic status that several names on the list have reached in other countries. Concluding the dispute which started almost 20 years ago, the ECJ last month rejected arguments by Denmark and Germany that the name Feta had become generic, confirming the Commission's position that it was a protected designation of origin for a type of cheese produced in Greece. The decision is a big setback for non-Greek Feta producers in the EU. "This ruling is legal nonsense," said Hans Bender, director of the Danish Dairy Board – which argued in favour of the generic status of Feta. "This is extraordinary and very worrying." The Court decided that Feta fulfilled the requirements of a designation of origin under EU law because the name referred to an agricultural or food product from a defined geographical area in Greece and reflected characteristics specific to that area and the production, processing and preparation methods used there. The ruling means that all non-Greek EU Feta producers will have to change the name of their cheese by 2007. Names such as "Feta-style cheese" or any other names referring to Feta, will not be allowed. Those unwilling to change the Feta name will risk losing their business. "Now the gates are wide open for all products to be protected as designations of origins, such as Emmenthal for Swiss cheese, or Gouda. It means total uncertainty for the dairy and food sector and entails complications in the EU in the future," said Bender. Bender criticized the ECJ for overturning its own ruling in 1999, in which the Court sided with Denmark, Germany and France and cancelled a 1996 registration of Feta as a Greek designation of origin based on insufficient scientific evidence to justify registration. This was followed by a detailed EU-wide scientific study, requested by the Commission, which concluded that Feta was non-generic because production of traditional Feta was concentrated in Greece. In October 2002, the Commission declared the legality of the registration of Feta as a designation for Greek cheese. Denmark and Germany appealed again, stressing they had legally produced Feta cheese for decades and that the name had become generic. The ECJ last month acknowledged that some European countries had a strong history of producing Feta cheese, with production in France and Denmark going back as far as the early 1930s, and in Germany to 1972. "Although the production in the other countries has been relatively large and of substantial duration, the Court notes ... that the production of feta has remained concentrated in Greece," the ECJ ruled. It found that more than 85% of consumption of Feta per person and per year in the EU took place in Greece. Rejecting the generic nature of the name, the Court further ruled that the labels used by non-Greek EU producers on their Feta cheese often referred to Greece, either in words or by the colour scheme they used. It also noted that Danish law referred to Danish Feta, and not Feta, suggesting that it was the Danish version of an otherwise Greek cheese. The weight of the Feta ruling is shown in the ECJ's decision to hear the case as a full court in its Grand Chamber, with 13 judges, led by ECJ president Vassilios Skouris from Greece. The Feta case goes back to 1987 when Greece first decided that Feta should designate only its cheese. The Commission first registered it as a designation of origin in 1996, when the EU Regulation on geographical indications was adopted. Stéphanie Bodoni

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TRIPs and public health 

Two years ago WTO members agreed to allow countries with little or no manufacturing facilities of their own to import patent-busting generic drugs under compulsory licences. Emma Barraclough explains why the issue will resurface in Hong Kong

What do member states need to decide? Wasn't all this resolved earlier?

Yes and no. The November 2001 Doha Ministerial Declaration on Trips and Public Health made it clear that the TRIPs Agreement had flexibilities that allowed developing countries certain access to medicines under its compulsory licensing regime. But it also recognized that rules requiring countries to grant compulsory licences only when it was "mainly to supply the domestic market" were largely irrelevant for poor countries that lacked the capacity to make the drugs themselves. WTO member states agreed to change the rules. They did this on August 30 2003, when the General Council decided to allow countries to export generic drugs under a compulsory licence, as long as they met certain conditions. The change is sometimes referred to as the "Paragraph 6" decision because it relates to paragraph 6 of the Doha Declaration.

The General Council also pledged to amend the TRIPs Agreement to make the decision permanent, and said that this amendment should, where appropriate, be based on the August 30 decision. Although the TRIPs Council hoped to finalize a permanent revision within six months, the negotiations have dragged on.

What did the decision mean in practice?

Not very much. It certainly did not precipitate the collapse of international pharmaceutical patent protection. As yet, no countries have notified the WTO of their intention to exercise their rights either to import or export drugs under the compulsory licence rules. In fact 23 countries, including Australia, the EU member states, the US, Japan and Switzerland, immediately announced that they would not import any drugs under the August 30 decision. The 10 newest EU members made the same pledge when they joined the EU in May 2004. Another 11 WTO members, including Hong Kong, Israel, Korea, Mexico and Turkey, said that they would only use the compulsory licence rules to import generic drugs in situations of "national emergency" or other circumstances of "extreme urgency".

So is everybody happy with the new rules?

Not quite. Poor members of the WTO, particularly countries within the African Group, say that the compromise does not work in practice. Ellen t'Hoen of Médecins Sans Frontières' Campaign for Access to Essential Medicines says that the rules are "wrapped in red tape" because they only operate on a country-by-country and drug-by-drug basis and are very complicated to use. "We think that big generic producing nations like Brazil and India will lose interest in producing drugs under these rules because they lose their economies of scale. If you want to persuade companies to carry on producing AIDS drugs then this is not the way to do it."

What are the sticking points to a permanent deal?

The African Group has proposed making the August 30 deal permanent by amending the TRIPs agreement using similar wording. But countries that are home to some of the world's biggest drugs makers are concerned that even small, technical changes to the previous agreement could have a big impact on how compulsory licensing might work in practice. In particular, Switzerland and the US are keen to incorporate into the TRIPs Agreement a statement read out by the chairman of the General Council when the 2003 deal was reached. The statement said that WTO members would use the new mechanism to benefit public health and not for commercial gain. It also listed the countries that had agreed not to import drugs under the new rules. The African Group, backed by Brazil and India, says that including this statement in the TRIPs Agreement, even as a footnote, would give it unwarranted legal status.

Multinational pharmaceutical companies say they take their responsibilities to patients who need their medicines seriously, but are nervous about any developments that may extend the scope of the compulsory licensing regime. Mark Grayson, a spokesman for Pharmaceutical Research and Manufacturers of America, says PhRMA "supports amending the TRIPs Agreement to adopt the August 2003 decision in a manner that preserves the agreement and consensus reached at that time [and believes] it is important to get the amendment completed correctly and not rush to have it completed just for the purpose of saying it was completed".

Many health advocacy groups say that the WTO should investigate whether the present compulsory licensing rules are working for the benefit of patients before they take any steps to make them permanent. Unsurprisingly they are opposed to any moves to incorporate the chairman's August 30 statement into the TRIPs agreement itself. "It is quite inappropriate," says t'Hoen. "It makes a strong statement that the August 30 decision should not be used for commercial reasons. But we rely on the commercial sector for drugs provision. We want to make the market mechanism work. Otherwise you simply turn the provision of drugs into a question of charity."

How are the discussions progressing so far? Will they be resolved in Hong Kong?

Most member states accept that if they are going to strike a deal in time for the Hong Kong meeting they cannot readdress the substance of what was agreed on August 30, but must simply change the legal form from a waiver into a formal amendment to TRIPs. But discussions do not appear to be on track. Choi Hyuck, the TRIPs Council chairman, had hoped to reach an agreement on the issue at the Council meeting at the end of October. Instead he suspended discussions in favour of informal talks with the key parties – the African Group, the EU and the US – in the hope of making a breakthrough. Consultations will continue and the TRIPs Council will be reconvened to try and agree a recommendation for the General Council before the Hong Kong meeting. Panic about a possible bird flu pandemic has rocketed the compulsory licences issue up the international agenda and arguably made the task of tightening the rules much harder. The stalemate over a permanent solution looks set to continue.

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The traditional knowledge debate

There are deep divisions within the WTO over the issue of traditional knowledge and biodiversity. Emma Barraclough looks at how the debates are progressing

Why is the WTO talking about traditional knowledge? Doesn't the Convention on Biodiversity already deal with that?

The CBD does address the issues of traditional knowledge but many people believe there is an irreconcilable conflict between the Convention (which aims to protect biodiverse resources and ensure that any benefits that come from commercializing those resources are shared with local communities in a fair way) and the TRIPs Agreement (which aims to remove trade barriers that prevent patent owners from exploiting their temporary monopolies as they choose). Following the 2001 WTO talks in Doha, ministers issued the so-called Doha Declaration, in which they said they were instructing the TRIPs Council to review the relationship between TRIPs and the CBD, and to look at ways of protecting traditional knowledge and folklore.

Are all WTO members also party to the CBD?

Most of them, but not all. There is a short list of non-members that includes Somalia, the Vatican and, crucially, the US. Of course of those countries that are a party to the CBD, few have done very much to pass legislation that brings those of its principles that affect intellectual property into their own domestic law.

Who are the key players in the discussions?

A group of bio-rich countries led by India, Brazil and Peru want TRIPs to be amended in line with the principles laid down in the CBD, so that patent applicants are obliged to disclose the source and origin of the genetic material (and the related traditional knowledge about the genetic material) for which they are seeking patent protection, and demonstrate evidence that they have obtained prior informed consent from the competent authority in the country of origin and that they have entered into fair benefit-sharing arrangements. The group has support from Venezuela, Thailand and Cuba as well as the African group. This informal group of WTO members say that the issue is an essential component of this round of trade negotiations.

Opposing them is a group that includes the US, Japan and Korea, who say that the patent system should not be used to realize the CBD's objectives because national IP regimes can deal with the issue on a country-by-country basis. These countries want the present system to stay as it is, arguing that national patent regimes have adequate mechanisms in place to prevent so-called "bad patents" from being granted in the first place or for remedying the situation in cases where they are.

The EU was previously in the US-led camp on the issue but now, along with Switzerland and Norway, supports a plan to require patent applicants to disclose the origin and source of genetic material and any related traditional knowledge, but which does not oblige them to show that they have obtained prior informed consent or made any benefit-sharing arrangements. Crucially, they say that non-compliance should not lead to a patent being revoked. Instead, aggrieved parties who believe their rights have been affected would have to seek a legal remedy. India's Ministry of Commerce has already issued a statement saying that this kind of half-way measure, which would not oblige patent examiners to consider the issues of prior informed consent and benefit sharing, would "not suffice" because traditional knowledge owners in developing countries have limited resources with which to contest patents granted abroad.

Isn't WIPO looking at this question as well?

Yes. In 2003 WIPO's General Assembly told its Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore to focus its studies on the international dimension of IP and genetic resources and traditional knowledge. WIPO says the group's work "excludes no outcome, including the possible development of an international instrument or instruments in this field" and in September extended its mandate for an additional two years. WIPO members also agreed to share the results of a study on the relationship between disclosure requirements within the IP system and genetic resources and associated traditional knowledge with the CBD.

"Developing countries are getting more active in TRIPs," says Chee Yoke Ling, a legal adviser with the Third World Network. "As a result, some developed countries are beginning to like the TRIPs Council rather less and want to shift some of these issues off into the CBD and WIPO."

With all these different discussions going on, does the WTO have a timetable for agreement?

The Doha Declaration simply asked the TRIPs Council to examine the issues without setting out a timetable in which they had to do it. In the TRIPs Council meeting held in Geneva at the end of October, the Indian ambassador to the WTO, Ujal Singh Bhatia, proposed that any ministerial declaration issued at the Hong Kong meeting should include a paragraph that would formally launch negotiations aimed at amending TRIPs so that WTO member states would have to change their domestic laws so that patent applicants would be required to disclose the source of biological materials and related traditional knowledge used in their inventions and to demonstrate the prior informed consent of the source country or community and the benefit sharing agreed with the source. Agreement could be a long time coming because there is already a dispute about whether traditional knowledge and biodiversity even form part of the Hong Kong negotiations, in addition to fundamental differences over the substantive issues. Given the opposition from the US, Australia, Japan, Korea and Switzerland, as well as the luke-warm response from Canada and New Zealand, who have requested more time to study the implications, the likely outcome is that the TRIPs Council will report back to the General Council which will then give it more time to consider the issues.