127. The representative of Brazil said that defining prior art might help to improve patent quality, but did not address the issue of the relationship between the TRIPS Agreement and the CBD. This was because the improvement of prior art searches would not achieve a supportiveness of the CBD objectives. While it was interesting to discuss the patent quality and possible changes to prior art searches, it would not bring a solution to the misappropriation of biological resources on an international scale.
128. Regarding the legality of use of genetic resources mentioned by the United States, he said that this issue had not been addressed in the draft amendment. The disclosure requirements would provide a tool for monitoring and tracking information regarding the use of biological material and traditional knowledge. If there was misappropriation of biological resources and traditional knowledge, the patent application would not be further processed or the granted patent might be revoked. Patent offices would not judge the legality of the purchase of or access to a particular biological resource. The disclosure requirement had no bearing on exports of biological resources.
129. Regarding the national contract-based approach, he said that a number of Members would be required to adjust their civil or criminal codes, which would not provide an incentive to innovation but would facilitate biopiracy on an international scale because of the great diversity of national regimes. The amendment would improve incentives to innovation. National experiences, although interesting, did not have a direct bearing on Members' mandate to examine the relationship between the TRIPS Agreement and the CBD. Moreover, negotiations in the WTO were not usually based on a fact-based examination of national experiences. He recalled that the TRIPS negotiations had not taken into account, nor been conditioned upon, any examination of national experiences. Therefore, Members should not limit their work to fact-based discussion or divert their attention to national experiences. The TRIPS Council was a forum for Members to negotiate internationally binding treaties.
130. In conclusion, he said that as a great number of Members had made substantive comments on the proposal for amendment of the TRIPS Agreement, the time was ripe to move towards text-based negotiations.
