The apparent collapse of the World Trade Organization’s (WTO) Doha round of trade talks is indefensible. But at least one good thing came out of it: the (temporarily, at least) failure of an effort to amend WTO’s TRIPS (Trade-Related Aspects of Intellectual Property Rights) provisions in some alarming ways.
A group of developing countries, with the assistance of the European Union, was fighting to make several substantive changes to TRIPS:
- Establish an international register of geographical indicators (GI) for wine and spirits;
- Extend GI protections for products other than wine and spirits; and, finally,
- Bring TRIPS into compliance with the UN Convention on Biological Diversity (CBD).
The international GI register has already been agreed to and seems to have little negative impact if it’s voluntary and nonbinding. Indeed, it could actually serve to provide a source of useful information to trademark examiners around the world.
However, extending GI registration and protection to additional products could lead us down a never-ending road of confusion and mischief. Can a restaurant in Texas sell Kansas City barbeque and vice versa?
Then there’s the CBD issue. The U.S., which is not a formal member of the CBD, and a handful of additional countries have resisted efforts to hitch CBD to the Doha round of talks.
This was both smart trade negotiation and smart policy.
- First, the WTO has no mandate to even consider making the CBD enforceable under TRIPS.
- Second, what the CBD required countries to do and the consequences of it would have serious implications for innovators.
Global implementation and enforcement of the CBD by the WTO would mean that all patent applications would have to contain detailed information about any “traditional knowledge” or genetic material utilized to develop the patented product.
That means the CBD could invalidate patents after the fact for failure to disclose minute details regarding genetic origins or use of traditional knowledge. And since these provisions would be enforceable under the WTO, countries could also impose huge penalties on those they feel improperly or inadequately disclosed this information.
The net effect would be confusion, unpredictability and legal vulnerability for innovators. In other words, it would make innovation more risky and thus more costly and less attractive.
So while we lament the collapse of the Doha round, the death of the CBD-expansion effort eases our grief.