127. The representative of Brazil said that while a number of developing countries supported the proposal of amendment of the TRIPS Agreement in order to make it supportive of the CBD objectives, many Members, especially the developed country Members, were not open to discussing the proposal. While referring to the shared objectives of the CBD, these developed countries insisted on describing the debate as a reflection of a wide divergence of views. He said that Members should not describe the debate this way if the objectives of the CBD were truly shared by them, and if they all agreed that misappropriation and biopiracy should be dealt with in a way that was consistent with the CBD objectives. He said that, while his delegation was not against fact-based discussions on national laws, it believed that it was not within the purview of the TRIPS Council. Members should concentrate their discussion on the TRIPS Agreement as such and on the issue that was within their mandate. Members' mandate was to discuss the relationship between the TRIPS Agreement and the CBD, which should not be narrowed down to fact-based discussions or prejudge the outcome of the discussion. He further said that the disclosure requirement would reduce the opportunity for illegality of access to genetic resources and traditional knowledge, which were now condoned or rewarded by the granting of patents in some cases. The patent system needed to respond to the moral issue of the illegality of access, which raised more concerns in developing countries than in developed countries as developing countries were usually the victims of misappropriation and biopiracy. He said that the international dimension of this issue required an international solution in the TRIPS Agreement, and that national measures did not fall within the purview of the Council, which would not be able to deal with this issue adequately by itself.
128. He asked Switzerland and the European Communities whether they intended to request the TRIPS Council to circulate their disclosure proposals submitted to WIPO as formal documents for Members' discussions. He also asked whether the European Communities had the flexibility to discuss the disclosure requirement based on the parameters contained in its WIPO proposal in the TRIPS Council. He said that his delegation would be interested in debating proposals by the European Communities and Switzerland in the TRIPS Council as the discussion on the amendment of the TRIPS Agreement should be carried out in the TRIPS Council. He noted that while the EC Directive used the term "biological material", the European Communities referred to the term "genetic resources" in its disclosure proposal to WIPO.
129. Regarding Japan's proposal on database systems, he said that a centralized database system was not an adequate solution to misappropriation as patent examiners might simply ignore whether there had been an illegal access to genetic resources and associated traditional knowledge. Meanwhile, the database system would place traditional knowledge at the disposal of patent examiners without ensuring local communities that the international community would provide the disclosure requirement to discourage misappropriation and biopiracy. He said that the proposal to amend the TRIPS Agreement was not necessarily in contradiction with the database system and could be discussed on its own merit and separately.
