83. The representative of the United States noted that some Members had advocated commencing negotiations on the basis of a proposed text to amend the TRIPS Agreement. He reiterated that his delegation did not support amending the TRIPS Agreement to address the concerns of the demandeurs, and did not think that doing so would be the most effective way of addressing those concerns. His delegation continued to believe that Members should focus on their shared objectives that had been revealed to date. He agreed that prior informed consent and equitable benefit sharing for the use of genetic resource and related traditional knowledge were important issues, and also agreed on the importance of avoiding erroneously granted patents. At a fundamental level, his delegation believed that the most critical element in ensuring appropriate prior informed consent and access and benefit sharing was a development and strengthening of national regimes and legal frameworks designed specifically to accomplish these objectives. Bringing the patent system into the equation simply did not make sense if there was an absence of a well functioning prior informed consent and access and benefit sharing regime.
84. The most effective way to ensure the effective sharing of benefits was to bring about the generation of benefits in the first place. Benefits would be generated when useful and good products were developed and commercialized. And the existence of an incentive through the patent system was a critical element in encouraging such development and commercialization. When this happened, and when meaningful national prior informed consent and access and benefit sharing systems were in place, Members could then have confidence in the common objectives that had been identified and Members work could be achieved. He said that while his delegation had not seen evidence that the disclosure of origin of genetic resources and associated traditional knowledge in patent applications would prevent misappropriation or avoid erroneous patents, it thought that further fact based discussions at WIPO could be constructive in identifying Members' common objectives.
85. Referring to Bolivia's submission, he agreed with the points made by Switzerland that life forms and methods related to life forms should be patentable if they met the requirements of patentability, especially novelty, inventive step and industrial applicability. He recalled that the patenting of new plants did not diminish rights to use plants already in existence. Instead, the ability to obtain a patent on a new plant created an incentive to create new plants to address concerns about, among other things, food security and climate change. A patent right could also give rise to financial and other benefits that could be shared with those who contributed towards the invention, such as someone who supplied breeding material for a new plant. He noted that, in March 2009, the WIPO Standing Committee on the Law of Patents had requested the WIPO Secretariat to commission a study by external experts on exclusions, exceptions and limitations focused on but not limited to patentability of life forms, including from a public policy, socio economic development perspective, bearing in mind the level of economic development. The experts who would be conducting the study had been selected but the study had not been completed. The results of the study could be informative as to whether the exclusions, exceptions and limitations to the patentability of life forms were appropriate.
86. As to Bolivia's concerns about the need to protect genetic resources against misappropriation, he said that this was a common denominator to all of Members' concerns. Misappropriation could occur in many circumstances with very varied factual patterns. There might be a patent that was involved or there might be no intellectual property protection at all. In that instance, the genetic resource could be owned by a sovereign government or a private entity, but regardless of ownership or whether patents were involved, the need to protect against misappropriation was the same.
