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Following intense negotiations that delayed the start of opening ceremonies, delegates at the global patent law treaty conference squelched a Colombian government push to include safeguards for indigenous resources in the accord. The Colombian proposal — which would have conditioned the granting of patents covering biological or genetic resources on whether an inventor legally acquired the resources and had the documentation to prove it — was shot down after hours of behind-the-scenes haggling at the World Intellectual Property Organization’s patent law treaty conference, which began May 11, sources said. According to one document, the factions reached a “commitment” that: 1. No formal proposals or agreed statements will be submitted at the Diplomatic Conference. However, delegations can make any statement they wish for inclusion in the records. 2. Member State discussions concerning genetic resources will continue at WIPO. The format of such discussions will be left to the Director General’s discretion, in consultation with WIPO Member States. COLUMBIAN PLAN TO TRACE BIODEVELOPMENT Colombia first floated draft PLT language during a meeting of WIPO’s standing committee on patent law last fall. A Sept. 8, 1999 version reads: 1. All industrial property protection shall guarantee the protection of the country’s biological and genetic heritage. Consequently, the grant of patents or registrations that relate to elements of that heritage shall be subject to their having been legally acquired. 2. Every document shall specify the registration number of the contract affording access to genetic resources and a copy thereof where the goods or services for which protection is sought have been manufactured or developed from genetic resources, or products thereof, of which one of the member countries is the country of origin. It is uncertain whether the wording under discussion at WIPO last week was identical to this version. Colombia was trying to create a way for countries to track the commercial development of products derived from their biological and genetic assets, said Linda Lourie, an attorney-advisor in the PTO’s office of legislative and international affairs. According to Lourie, biodevelopment focuses on the equitable sharing of benefits deriving from genetic resources. But while some countries have set up regimes limiting access to those materials, they often have no way of knowing whether researchers are making money off them. For years, Lourie said, some countries have weighed using the patent system to track biodevelopment. But it was not until last year that Colombia formally broached the idea of using the PLT to allow it to trace whether anything patentable had come from research done within its borders. CRITICS SAY PLAN VIOLATES EXISTING LAW AND UNDERMINES TREATY But the plan sparked strong criticism from U.S. biotech companies and U.S. Patent and Trademark Office officials, who warned that it could violate trade agreements and frustrate the purpose of the patent law treaty. In an April 21 letter to PTO Director Q. Todd Dickinson, the Biotechnology Industry Organization said it was “extremely distressed to see proposals like this being given serious consideration in the treaty development process,” and urged the U.S. government to “take an unequivocally negative position” on the provision. Among other BIO beefs: Colombia’s “implicit message” that biotech companies are bad actors who mistreat indigenous cultures. The United States “vigorously” opposed the scheme for three reasons, Lourie said. First, it may violate the Trade-Related Aspects of Intellectual Property Rights agreement. Under TRIPS, a patent may be granted for any invention that: (1) is new; (2) involves an inventive step; and (3) is capable of industrial application. But what if a country required an inventor to submit proof — which he did not have — of access to biological or genetic resources? That would create a new requirement for patentability which possibly contravenes TRIPS, Lourie said. Colombia’s scheme is also “extraneous to the patent process,” Lourie said, adding that the patent system should not be used to enforce other sets of laws, morals, or ethics. Moreover, she said, the point of the PLT is to simplify the patent process worldwide, and to stop countries from piling on new requirements for patents. Seen in that light, Lourie said, Colombia’s proposal “doesn’t make sense.” IP is not the way to protect genetic resources, Lourie said. U.S. agencies such as the National Institutes of Health pen contracts that require them to get approval for research from local communities, and deposit the results of that research in the home countries. There are also trademark-related provisions in existing IP laws that can be used to market and provide protection and income flow for indigenous resources, she added. WIPO is expected to take up the issue again at its September meeting, Lourie said. The Colombian delegation could not be reached for comment. The PLT was designed to broaden the 1978 Patent Cooperation Treaty by further streamlining and harmonizing international requirements for filing patent applications. Some of its provisions — particularly those dealing with mandatory representation of applicants and filing dates — have led to a schism between the United States and some European nations.

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