163. It has become a practice to address the three agenda items together under the rubric of the 'Triplets'. However, in this discussion we often lose the relative importance of the individual components making up the 'Triplets'. The Doha Ministerial Declaration instructed the TRIPS Council as part of its work programme to review Article 27.3(b) as well as to examine the relationship between the TRIPS Agreement and the Convention on Biological Diversity, and the protection of traditional knowledge and folklore. These are legitimate outstanding implementation issues which remain an integral part of the Doha round single undertaking. In recent times Paragraph 31 of the Nairobi Ministerial Declaration (WT/MIN(15)/DEC) reaffirmed the strong commitment of all Members to advance the negotiating on the TRIPS issues under the work programme of the Doha Ministerial Declaration.
164. South Africa believes that the debate in respect of the Article 27.3(b) is not a static one. South Africa requires disclosure of the use traditional knowledge or biological resources in patent applications under Sections 30 (3A) of the Patents Act No. 37 of 1952 as amended by Act No. 20 of 2005. Despite this requirement and various legislative approaches to curb biopiracy, the problem continues to grow. In the absence of an internationally agreed and enforcement system, as applicable under the TRIPS Agreement, national disclosure requirements are of limited effect due to the territorial application of intellectual property rights.
165. South Africa is a non-examining patent country; any complete patent application that is filed and meets with the formal requirements (fees and correct forms) of the Patents Act will therefore be granted. The practice of non-examination gives rise to the potential of abuse, as patentees count their 'rights' safe in the knowledge that the general public does not understand the concept of nonexamination and that IP litigation is expensive and time consuming. Between January 2005 and July 2015, 40,131 patents originating from all over the world were registered in South Africa; only 4064 of those patents have a South African origin. We are now attempting to fix this by introducing formal examination as envisaged in our IP Policy. The IP Policy sets out a range of proposals relating to key aspects of patent law that have an impact not only on public health but more broadly. In addition to substantive search and examination, IP Policy addresses the following issues (amongst others) - patent oppositions, patentability criteria, parallel importation, exceptions and compulsory licences. The South African patent landscape is characterized by the easy grant of patents of dubious quality and value, as well as the enforcement of a legal framework that appears to be heavily skewed in favour of patentees. What this means in practice is that in exchange for very little, market exclusivity is easily granted, and maintained, ordinarily at a high cost to society.
166. In respect of the relationship between the TRIPS Agreement and the Convention on Biological Diversity and the protection of traditional knowledge, a large group of WTO Members has sought to introduce a mandatory disclosure requirement in patent applications. The best way to ensure the proper use of genetic resources and associated traditional knowledge is through an amendment to the TRIPS Agreement as set out in document TN/C/W/59.
167. In line with our previous information provided, it would be useful for the CBD Secretariat to brief the TRIPS Council on the CBD and other implementation issues under the Nagoya Protocol as well as any new developments.
168. We wish to raise once more the issue of the update of the three technical notes contained in documents IP/C/W/368/Rev.1, IP/C/W/369/Rev.1, and IP/C/W/370/Rev.1. It would be appropriate for the Secretariat to update the information contained in these notes in a neutral manner to further facilitate discussions among Members.