H.E. Ambassador Lundeg Purevsuren

Kenya

3; 4; 5 REVIEW OF THE PROVISIONS OF ARTICLE 27.3(B); RELATIONSHIP BETWEEN THE TRIPS AGREEMENT AND THE CONVENTION ON BIOLOGICAL DIVERSITY; PROTECTION OF TRADITIONAL KNOWLEDGE AND FOLKLORE

75.   This statement concerns agenda items 4 and 5. The protection of biological resources, traditional knowledge and folklore presents an important developmental issue for Kenya. In this regard, Kenya fully supports negotiations on the TRIPS Agreement and the Convention on Biological Diversity (CBD). 76.   Kenya believes that the TRIPS Agreement and the CBD should be implemented in a mutually supportive manner and considers that the TRIPS Agreement should be amended to include a provision making it mandatory for a patent applicant relating to biological resources and/or associated traditional knowledge and folklore to disclose the source and country of origin of the biological resources and associated traditional knowledge used in the invention. In addition, they should also provide evidence of prior consent and equitable benefit sharing under the relevant national law. 77.   We believe that to develop a sound and viable technological base in developing countries and LDCs, any utilization of local genetic resources must involve their sustainable use in order to conserve biological diversity. 78.   Finally, Kenya continues to encourage the engagement of the Director General in this mandated consultative process on the relationship between the TRIPS Agreement and the CBD. We look forward to the outcome of this kind of consultations and request other Members to engage constructively in these negotiations, taking into consideration that this issue is one of high priority for developing countries since they are often victims of biopiracy. These dishonest practices must be combatted effectively to facilitate the sharing of the benefits gained from the exploitation of such resources.

The Council took note of the statements made and agreed to revert to the matters at its next meeting.

11.   The Chair proposed that, following past practice, agenda items 3, 4 and 5 be addressed together. He recalled that one tool for the review under item 3 was the information provided by Members in response to a list of questions on Article 27.3(b). Last year the Council had received the responses by Ukraine and Mexico. These had been the first responses after 15 years. He encouraged delegations to submit responses to this Checklist or update their previous responses; as well as notify any relevant changes in legislation.
12.   He noted that two longstanding procedural issues under these items had been discussed extensively on the record, at every regular meeting of the Council for several years:
a. first, the suggestion for the Secretariat to update the three factual notes on the Council's discussions on the TRIPS and CBD and related items; these notes were initially prepared in 2002 and last updated in 2006; and
b. second, the request to invite the CBD Secretariat to brief the Council on the Nagoya Protocol to the CBD, initially proposed in October 2010.
13.   Positions on these issues were well-known and already extensively recorded in the Council minutes. In addressing these procedural questions, he encouraged delegations to focus on suggestions as to how to resolve them.
14.   The representatives of Brazil; India; Bangladesh; Nigeria; China; Indonesia; Kenya; South Africa; Ukraine; the United States of America; Switzerland; Japan; Canada; and Plurinational State of Bolivia took the floor.
15.   The Council took note of the statements made and agreed to revert to the matters at its next meeting.

IP/C/M/94, IP/C/M/94/Add.1