46. The representative of Brazil highlighted the importance of the TRIPS/CBD issue, saying that there had been a good deal of debate on this issue and there was now a broad convergence of views among Members, including the need to prevent misappropriation of genetic resources. It was widely recognized that prior informed consent and equitable sharing of benefits arising from the use of genetic resources might not only have a positive impact on traditional or indigenous communities in which genetic resources had originated, but also contribute to a high degree of certainty in the granting of patents in the country where genetic resources were eventually used. He said that the growing awareness of the need to prevent misappropriation of genetic resources and associated traditional knowledge was yet to be translated into agreement on how to achieve it, especially among different international organizations.
47. It was positive that this issue was being considered in different forums, as long as different perceptions did not lead to lose the sight of the broad picture and towards a dead end. Forum shopping on this matter should be avoided. Current negotiations on access and benefit sharing of genetic resources at the CBD could come to a successful outcome by the end of 2010. He welcomed the new mandate of WIPO's Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) to negotiate legally binding instruments and the agreement on how to fulfil its new mandate. He said that a group of countries preferred the WIPO to the WTO as a body to discuss intellectual property aspects of the use of genetic resources. Several countries, including Australia, Canada, New Zealand, Norway and the United States, had tabled a proposal at the sixteenth session of the WIPO IGC, which contained a draft set of objectives and principles of the protection of genetic resources. The objectives included "to ensure that patent offices have available the information needed to make proper decisions on patent grant" and "to prevent patents being granted in error for inventions that are not novel or inventive".
48. The best way to achieve these objectives would be an amendment of the TRIPS Agreement establishing a mandatory requirement of disclosure of origin of genetic resources in patent applications, while a provision to that effect was nowhere to be found in the proposal. He said that, like a vast majority of the WTO membership, his delegation considered the WTO as the most effective body to address the intellectual property dimension of the use of genetic resources and to prevent misappropriation of biodiversity. The WTO was an institution umbrella for the TRIPS Agreement the single most important and comprehensive international treaty on intellectual property rights. Document TN/C/W/52 was the result of a serious attempt to find common ground and balance among different countries and groups of countries across three intellectual property issues under discussions in the Doha Round. As one of the original co sponsors of that document, he reiterated his delegation's strong commitment to the proposal therein. He expected that the Director General would continue his consultations with a view to moving forward the debate.
49. He said that the Bolivian proposal on the review of the provisions of Article 27.3(b) merited serious consideration in the Council. He said that the Brazilian legislation excluded from patentability any life forms with the exceptions of genetically modified organisms that met the three criteria of novelty, inventive step and industrial application, and that plant varieties were protected by sui generis system.
