74. The representative of Switzerland said that his delegation promoted the protection and patentability of inventions in the field of biotechnology. Switzerland had made use of the flexibility provided by the TRIPS Agreement to take that route in its national legal regime. Switzerland was convinced that the field of biotechnology held particular promises for mankind both in developing and developed countries and thus investment should be stimulated through patent rights. Drugs and vaccines, which were developed in biotechnological procedures, were becoming more important. Present clinical research – particularly in the treatment of cancer, viral and bacterial infections, autoimmune diseases such as multiple sclerosis or cardiovascular diseases, but also into many vaccines, e.g. against hepatitis B – was heavily dependent on biotechnology. He said that it was not only in the area of drugs and vaccines that research in biotechnology was of paramount importance. The area of agro chemical products was another one to take into consideration. Biotechnology would be indispensable as a means to gain better productivity in agriculture, i.e. to produce more food on less land and to help to feed more people in the world. Inventions in all fields of technology, including biotechnology, deserved to be adequately protected by patents. Accordingly, he said that it was Switzerland's standpoint that the review of Article 27.3(b) should not lead to any lowering of the level of patent protection for biotechnological inventions.
75. He said that Bolivia had raised several basic points about what should be patentable and what should be excluded when it came to the patenting of life forms. He said that patent protection granted the inventor the exclusive right to prevent others from using the invention commercially. Mere discoveries of something new in the nature were not patentable. In other words, life forms as such could not and shall not be patented. Patents should only be granted for new, inventive, significant and not trivial contributions to the advancement of technologies which required a considerable effort and investment by the inventor. He said that Article 27.3(b) was a balanced provision providing Members with the necessary flexibility taking into account the various views and needs of Members. Article 27.3(b) required the protection of plant varieties through patents, an effective sui generis system, or a combination thereof. This provision again offered adequate flexibility for Members to take into account their national needs and interests.
76. Switzerland was a member of the UPOV. Taking into account the negotiation history of Article 27.3(b) and the growing number of Contracting Parties of the UPOV – currently 68 States – Switzerland viewed the UPOV system to be in the foreground as a reference for an effective sui generis system of protection for plant varieties. Nonetheless, Switzerland certainly agreed with Members who took the view that there might be other sui generis systems of protection for plant varieties that met the requirements of Article 27.3(b). The Swiss legislation foresaw farmers' privilege not only with regard to plant breeder rights, but also with regard to patent rights. These and other provisions of the Swiss laws on the plant variety and patent protection allowed to adequately take into account the issues mentioned in the communication by Bolivia and were evidence of the flexibility the TRIPS Agreement provided to Members.
77. He said that there were international discussions on the protection of traditional knowledge, especially the discussions in the WIPO IGC and the Working Group on Article 8(j) of the CBD. Both forums were in the process of elaborating measures for the protection of traditional knowledge, and the work of the IGC and its recently renewed mandate for the years 2010 2011 deserved particular attention. He recalled his delegation's proposal for the establishment of an international gateway for traditional knowledge, which would electronically link existing local, national and regional databases on traditional knowledge, and thus facilitate access by patent authorities to information about traditional knowledge contained in these databases. He also recalled that Switzerland had submitted several proposals to WIPO and to the Council on how transparency could be enhanced in access and benefit sharing through a requirement of disclosure of source in patent applications. He indicated that neither the gateway nor the disclosure requirement would by themselves be sufficient to resolve all issues arising in the context of access and benefit sharing. They were only two elements to be integrated in a global approach that would comprehensively address the issues related to access and benefit sharing. In the view of Switzerland, additional measures had to be taken, outside of the patent system, in other fields of law. Such measures needed to be in harmony with and mutually supportive of relevant international instruments and forums, including the CBD and the United Nations Declaration on the Rights of Indigenous Peoples.
78. Nevertheless, the disclosure of source in patent applications was an area where patent law could make a contribution to a broader framework of access and benefit sharing with regard to patents in the field of biotechnology based on genetic resources and traditional knowledge. The call for such a disclosure requirement made sense only if one accepted the patentability of biotechnological inventions, as today, this sector accounted for a large number of the inventions relating to genetic resources and traditional knowledge. If there was no patent application or patent, there was nothing to disclose, and no potential benefit to share. Through such a declaration of source of genetic resources and traditional knowledge as well as through the publication of the patent application and the public accessibility of the patent information once the patent was granted the patent system contributed to and promoted transparency in the area of inventive technologies in general in particular with regard to the use of genetic resources and traditional knowledge used in inventions in particular.
79. He recalled that Switzerland was a co sponsor of document TN/C/W/52, in which more than two thirds of the WTO Members proposed key modality language for the three TRIPS issues. He appreciated the Director General for his engagement and ongoing consultations on the issues of TRIPS/CBD and GI extension, as mandated in paragraph 39 of the Hong Kong Declaration and paragraph 12 of the Doha Ministerial Declaration. He said that the work done under this mandate was an important component of the Doha Development Agenda, and that solutions needed to be included in the Single Undertaking of the Doha Round.
