42. The representative of Brazil supported the request made by India that document WT/GC/W/564/Rev.1 and TN/C/W/41/Rev.1 be circulated as a TRIPS Council document. He said that the proposed amendment of the TRIPS Agreement was supported by the broad majority of developing countries. It was fully compatible with the Doha mandate and would be an essential outcome of the Doha Development Round. He said that the amendment had to be understood to be pro-intellectual property, as its objective was not to destroy, water down or encumber the intellectual property system in the TRIPS Agreement. Instead, it sought to make the system more robust in general and better suited to the moral principles on which intellectual property protection should stand. Its objective was also to reduce the margin for misappropriation of biological resources and/or associated traditional knowledge. He said that immoral conduct should not be rewarded, and that patents should not be granted to inventions which were obtained through dishonest practices. He said that the amendment would show that the international intellectual property system was responsive to the particular needs and concerns of developing countries, in particular the mega-biodiverse ones among them. It would also make the patent system stronger by making the monitoring of dishonest practices viable and enforceable internationally. The amendment was compatible with the evolving nature of science and technology, especially biotechnology.
43. He further said that his delegation's position and responses to the technical questions posed by other Members could be found in documents IP/C/W/420, 429, 438, 442, 443 and 459. In view of the length of the time devoted to technical discussions and exchange of views, the time was ripe for moving beyond general statements into text-based negotiations, which would give effect to the instruction given to Members by Ministers.
44. He said that the disclosure requirements would not pose additional burdens for patent applicants and should not be considered as a new fourth patentability criterion. Non compliance with the disclosure requirements would produce the proportional effect of preventing patent examination from proceeding. It could also constitute a ground for invalidation and revocation of patents. Members would be called upon to ensure effective enforcement procedures. Publishing the disclosed information would allow Members to track and enforce their rights over biological resources and traditional knowledge. It would be in line with other measures which had the aim of providing transparency within the international patent system.
45. He said that the establishment of databases, as suggested by Japan, for widespread use by patent examiners and interested Members, would lead to the misappropriation of traditional knowledge in the absence of mandatory disclosure requirements. Thus, it would not meet the interests of those who tried to find a solution within the patent system to safeguard their legitimate interests over traditional knowledge and those who wished to safeguard, through the intellectual property system, their sovereign rights over biological resources under the CBD.
46. He said that Norway's proposal and the proposal by the developing countries converged at several points, such as in the perception that the mutual supportiveness of the TRIPS Agreement and the CBD could be enhanced by an amendment to the TRIPS Agreement; the need for text-based negotiations and the mandatory nature of disclosure requirement. According to him, the suggestion that traditional knowledge by itself be the object of a disclosure requirement seemed to go beyond the developing countries' proposal, and he was interested in knowing how this would apply.
47. With respect to the US proposal on the national contract-based approach, he said that this approach would not provide legal certainty to those combating biopiracy because national legislations varied and the private nature of the contract would not create international obligations. The approach was also costly, burdensome, time consuming and ineffective to tackle biopiracy and would not address the international dimension of the problem. Therefore, it was outside the scope of the Members' mandate, which was to look at the interface between the CBD and the TRIPS Agreement.
48. The draft amendment of the TRIPS Agreement contained in document WT/GC/W/564/Rev.1 attempted to translate a negotiating objective of the Doha Round into treaty language. Among the outstanding implementation issues, the issue of misappropriation of biological resources and associated traditional knowledge or biopiracy had the clearest and broadest support of the developing countries as a whole, and had matured both politically and technically to the extent that the proponents found themselves not only in a position to respond to all technical questions put forth by other Members but also in a position to propose a concrete text. The efforts to arrive at a concerted position regarding language for an amendment highlighted the political and economic importance developing countries had attributed to the issue. This was part of the balance that could be brought to bear on the intellectual property system so that developing countries' concerns could be addressed through a solution that would be ingrained in the intellectual property system. Developing countries were demanding a system which provided protection to countries that were recognized by the CBD as the sovereign owners of their biological resources and to communities that were the holders of associated traditional knowledge. The issue of misappropriation was not different in the area of copyright or patent protection. The draft amendment was in line with other demands for adjusting to the ever changing nature of science and technology, such as the protection of broadcasting signals in new digital media or the WIPO Internet treaties of 1996.
49. He said that some Members believed that the CBD issue was not part of the negotiating mandate of the Doha Round, which in his view was not supportive of Members' common objective of achieving a development-oriented round. The Round should fulfil the expectations of the majority of developing countries and take their views, needs and requirements into account.
50. Regarding Switzerland's proposal, he said that it had been put forth in the WIPO Working Group on Reform of the Patent Co-operation Treaty, the IGC and the TRIPS Council. In his view, Members should focus their attention on a single forum, and the most appropriate forum was the WTO. Regarding Australia's concern about the potential misuse of the disclosure requirements by lawyers, he said that these requirements provided an easier solution to the problem of misappropriation than the contract-based approach, which might cause a higher risk of misuse.
