80. The representative of India, while thanking the Secretariat for the synoptic tables, wished to address the question of patenting life forms, especially two dimensions thereof. First, there was the ethical question of the extension of private ownership to life forms. It was not denied that a certain level of protection for the development of new and improved versions of plants might be necessary to spur research for the benefit of mankind and to address food availability concerns. This might be taken care of by plant variety protection. To extend this logic beyond plant varieties was fraught with ethical, moral, social and even economic consequences, which could not be addressed through the existing intellectual property system. She wondered what would happen, for example, if a firm were to patent a particular tribe for having discovered and isolated genes responsible for strength, immunity from disease, ability to withstand natural climatic pressures or any other characteristic. Patenting of life forms marked a significant further step in the larger process of the commodification of life and the reduction of the value of life and nature to the merely economic. Intellectual property regimes generally made no allowances for the protection of communal rights and intergenerational innovation which were the hallmark of many developing country cultural traditions. Patenting also resulted in increasing privatization which shifted scientific research away from its traditional values of openness and discussion towards confidentiality and secrecy resulting in strengthening the power of corporate interests while marginalizing questions of human welfare and social justice. Technological development in this area was moving at an unprecedented pace and it might be necessary to stem any privatization of such knowledge for the larger benefit of mankind. Patents also had the danger of economic motives superseding ecological motives. Already there were fears of environmental harm being caused by biotechnology growth without establishing the appropriate biosafety rules and control systems. Ideally, it might be argued that patents should not be granted on life forms under national as well as international laws. If, however, a case was made for certain economic advantages of such patents and the exceptions available in Article 27.2 were considered adequate to deal with ethical and moral issues, the same needed to be examined fully. Even then, the question of a forum for such permission to grant patents in national laws had to be addressed and the WTO as a forum might be appropriate only if significant trade effects were adduced. The second dimension related to the use of the concept of intellectual property protection as understood in the industrialized world and its appropriateness in the face of the larger dimension of rights on knowledge, their ownership, use, transfer and dissemination. International intellectual property regimes recognized formal systems of knowledge only. Informal systems, such as the shrutis and smritis in the Indian tradition, and grandmothers' potions all over the world got scant recognition. Of course, there was a problem in identifying or assessing these latter forms of intellectual property. There was also a problem in giving value to wealth that was not tangible, not documented, and not generally commercially exploited. Although intangibles were protected in legal regimes, including patents, and even goodwill, that was possible only because they were found assessable as to their commercial value. As to natural wealth in biodiversity, as acquired through traditional knowledge of indigenous communities, such an assessment was very difficult. In addition, there was the problem that traditional knowledge systems were not reward-oriented. In ancient India, teachers did not demand fees. A grandmother did not demand a reward for her potions. The tribal knowledge of the benefits of a herb travelled within a community by word of mouth or by practice. No property right was sought on it. All such knowledge was alien to the existing intellectual property regimes. To create systems that failed to address this issue could have severe adverse consequences on mankind and, some said, even lead to its extinction. She said that clearly there was a case for re-examining the need to grant patents on life forms anywhere in the world.
81. Continuing, she also wished to briefly mention that it should be borne in mind that the provisions of Article 27.3(b) themselves must be reviewed according to the plain reading of the text in the TRIPS Agreement and that it might be useful to have a discussion on how the Council would address this issue. Her delegation would like to submit a proposal considering biodiversity aspects. The Preamble to the TRIPS Agreement recognized intellectual property rights to be private rights. Article 27.3 incorporated specific obligations on the issue of patenting life forms to the extent that it obliged Members to provide product patents for microorganisms and for non-biological and microbiological processes. In addition, Article 27.3(b) stipulated that all Members should provide for the protection of plant varieties either by patents or by an effective sui generis system or by a combination thereof. The Convention on Biological Diversity ("CBD"), on the other hand, in its Preamble, categorically reaffirmed that States had sovereign rights over their biological resources, recognized the desirability of sharing equitably the benefits arising from the use of those resources as well as traditional knowledge, innovations and practices relevant to the conservation of biological diversity and its sustainable use and acknowledged that special provisions were required to meet the needs of developing countries. These two international agreements were intrinsically linked with one another. It was important to study the relationship between the provisions of the CBD and those of the TRIPS Agreement and suggest reconciliation of any contradictions therein within the overall objective of conservation of biological resources with sustainable development. The CBD unambiguously stated that the authority to determine access to genetic resources rested with national governments and was subject to national legislation. It also stated that access, where granted, should be on mutually agreed terms and should be subject to the prior informed consent of the resource provider. It also enjoined the international community to respect, preserve, and maintain knowledge, innovations and practices of indigenous and local communities and encouraged the equitable sharing of benefits arising from their utilization. The Conference of the Parties to the CBD had initiated a work programme to give effect to these provisions. Sustainable development being an objective of the WTO also, it became incumbent upon Members to examine ways and means to harmonize the approaches to utilization of living resources in the CBD and in the TRIPS Agreement. It was proposed that this objective could be operationalized if an obligation was imposed in the TRIPS Agreement to share benefits through material transfer agreements and transfer of information agreements. A material transfer agreement would be necessary where the inventor wished to use the biological material and a transfer of information agreement would be necessary where the inventor based himself on indigenous or traditional knowledge. Such an obligation could be incorporated through inclusion of provisions in Article 29 of the TRIPS Agreement, which dealt with conditions on patent applicants, requiring a clear mention of the biological source material and the country of origin. This part of the patent application should be open to full public scrutiny upon filing of the application. This would permit countries with possible opposition claims to examine the application and state their claims well in time. At the same time, domestic laws on biodiversity could ensure that the prior informed consent of the country of origin and the knowledge holder of the biological raw material meant for usage in a patentable invention would enable the signing of material transfer agreements or transfer of information agreements as the case might be. Such a provision in domestic law should be considered compatible with the TRIPS Agreement. She said that this proposal would be circulated by way of a paper so that Members could have time to react to it as well as to reflect upon how the Council could consider such a proposal in the context of the review of Article 27.3(b).
