49. The representative of China said that her delegation recognized that patents could be closely related to the utilization of genetic resources and/or associated traditional knowledge. The TRIPS Agreement, the CBD and the Nagoya Protocol should operate in a neutrally supportive manner. As mandated by Ministers, the TRIPS Council had been instructed to examine, inter alia, the relationship between the TRIPS Agreement and the CBD. The Council should undertake work in the area of patents, and appropriate and effective measures should be taken to prevent misappropriation of genetic resources and avoid erroneous patents. As a co-sponsor of documents TN/C/W/52 and TN/C/W/59, China considered that mandatory disclosure requirements would contribute to enhancing the transparency of the utilization of genetic resources and/or associated traditional knowledge, while helping to advance legal certainty and ultimately achieve their goals.
50. Furthermore, the disclosure requirement was consistent with the transparency principle established in the multilateral trading system. Her delegation did not consider it burdensome for a patent applicant to fill in the form with the information of prior informed consent and access and benefit-sharing, as indicated in document TN/C/W/59, considering the legitimate objectives pursued by the system.
51. She said that the contractual arrangements proposed by some Members were insufficient to ensure the protection of genetic resources as such arrangements depended on the voluntary behaviour and fulfilment of parties to the contract. Patent examination played a second-hand role in preventing erroneously granted patents. Compared with the large quantity of genetic resources available throughout the world, information contained in the database and likely to be accessible to patent examiners prior to the granting of a patent would be limited. The responsibility to respect a sovereign right over genetic resources should rest with the legal and natural persons that access or use genetic resources and associated traditional knowledge.
52. She said that the TRIPS-CBD issue was an implementation issue under the Doha Work Programme, and as such had stalled for over ten years. Members should give serious consideration to how to move forward in order to succeed in resolving the issue constructively. To that end, she expressed her support for the proposal to invite the CBD Secretariat to make presentations in the TRIPS Council. Such a presentation would provide a different perspective and help to improve Members' understanding of the Nagoya Protocol by contributing to the discussion on how to establish a mutual supportiveness between the WTO and other organizations.
