Minutes - TRIPS Council - View details of the intervention/statement

H.E. Ambassador Xolelwa Mlumbi-Peter
5; 6; 7 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
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.
25.   The Council took note of the statements made and agreed to revert to the matters at its next meeting.
22.   The Chair proposed that, following past practice, agenda items 5, 6 and 7 be addressed together. She recalled that there had been important developments in this area in many WTO Members that have not been shared with this Council. So far, only 27 Members had responded to the List of Questions on Article 27.3(b), with Mexico and Ukraine being the most recent submissions. Two longstanding procedural issues under these items had been discussed extensively on the record, at every regular meeting of the Council for almost ten years now:
a. 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 had been initially prepared in 2002 and last updated in 2006; and
b. the request to invite the CBD Secretariat to brief the Council on the Nagoya Protocol to the CBD, initially proposed in October 2010.
23.   Delegations' positions on these issues were well known and already extensively recorded in the Council's minutes. Considering that the agenda was particularly full for the present one-day meeting, she strongly suggested that delegations focus their interventions on suggestions on how to resolve the differences and make progress on the substantive issues. Existing positions were very well known and were very clearly on the record, so there was no need to reiterate them.
24.   The representatives of Brazil; Tanzania, on behalf of the African Group; Bangladesh; South Africa; Zimbabwe; China; India; Nigeria; Kenya; Switzerland; Indonesia; Canada; the United States of America; the European Union; and Japan took the floor
25.   The Council took note of the statements made and agreed to revert to the matters at its next meeting.
IP/C/M/95, IP/C/M/95/Add.1