87. The representative of the European Union said that his delegation did not see any need to amend Article 27.3(b) as it currently stood. He said that the TRIPS Agreement provided Members with efficient flexibility to modulate their patent protection according to their needs, interests or ethical standards. Article 27.3(b) in conjunction with Article 27.1 and 27.2 provided considerable leeway.
88. Referring to the Bolivian proposal that Article 27.3 should be amended to prohibit the patenting of all life forms, including plants and animals and parts thereof, genes sequences, micro organisms as well as all processes including biological, micro biological and non biological processes for the production of life forms and parts thereof, he said that living organisms could not be patented as they existed in the nature. However, he did not favour a ban on the patenting of biological technological inventions. He said that each WTO Member had considerable flexibility in setting their standards for biotechnological patents. The TRIPS Agreement did not prevent Members from addressing ethical concerns and the European Union had done so in its Directive of 1998/44 on the legal protection of biological technological inventions.
89. Referring to the Bolivian proposal that Article 27.3(b) should ensure the protection of the innovation of indigenous and local farming communities and the continuation of traditional farming practices including the right to save and exchange seeds and sell their harvest, he said that WTO Members had also a considerable degree of flexibility in establishing an effective sui generis protection of plant variety and that Members were allowed to design their regimes appropriate to their specific national situations according to Article 27.3(b). Although the UPOV met the required standard of effectiveness, other models might be equally effective. As to farmers' exemptions in particular, that is, the exceptions to plant variety rights or patents allowing farmers to save new seeds of the protected variety, he said that such exemptions could, under certain conditions, be justified under Article 27.3 or Article 30 of the TRIPS Agreement. The special situation of LDCs or developing countries could be addressed by specific exceptions allowing substantive farmers or small farmers to save, replant, exchange, share and re sell seeds, provided they did not use the commercial denomination of the variety. On the other hand, farmers with significant commercial interests should remain subject to more stringent rules.
90. He further said that Bolivia had also suggested that Article 27.3(b) should prevent anti competitive practices which threatened food sovereignty of people in developing countries. He said that the TRIPS Agreement sufficiently addressed the issue of anti competitive practises in Articles 31(k) and 40.
91. Referring to the Bolivian proposal that Article 27.3(b) should protect the rights of indigenous communities and prevent any private monopolistic intellectual property claims over their traditional knowledge, he said that his delegation recognized the importance of ensuring appropriate protection of traditional knowledge, especially for developing countries and traditional communities, and supported the ongoing work in WIPO and the CBD. In particular, his delegation supported further work towards development of international sui generis models for the legal protection of traditional knowledge. His delegation also supported preventive approaches to avoid misappropriation of traditional knowledge, such as databases on traditional knowledge, which would help patent examiners establish prior art more accurately.
92. He recalled that two thirds of the WTO membership had co sponsored a proposal of modalities language for three TRIPS issues as contained in document TN/C/W/52. As a co sponsor of the proposal, his delegation remained committed to this common platform on the TRIPS issues and supported a parallel treatment of them with a view to a decision on the modalities. He reiterated that the European Union supported amending the TRIPS Agreement to introduce the disclosure requirement, which would allow Members to keep track of all genetic resource related patent applications at global level. This would increase transparency and would enable patent examiners to establish novelty more accurately and thus contribute to prevent misappropriation of genetic resources and associated traditional knowledge. He said that a consensus of modalities could only be found if the three TRIPS issues were part of it. He fully supported the consultation process which had been undertaken by the Director General, and encouraged him to continue this important process.
