59. The representative of Brazil shared the view of many delegations that the language in Article 27.3(b) indicated that the review should be a substantive exercise of examining and discussing the basis and contents of the exceptions contained in that Article. An exercise of information-gathering and examining the implementation of Article 27.3(b) should serve the purpose of supporting that substantive analysis. The representative of Brazil agreed with his Indian colleague insofar as he had stated that the review had only just started. The last meeting of the TRIPS Council had been very productive in the exchange of views of several Members on the different issues related to the review of Article 27.3(b).
60. On the issue of patentability of life forms, the representative of Brazil considered that, in principle, an optimal outcome of the review of this particular issue would be to maintain the status quo of Article 27.3(b), given that it provided enough flexibility for Members to decide on the most appropriate legislation. On the other hand, Brazil would not refrain from participating in a debate on the proposals presented by some countries, such as India and the African Group, on the clarification of the definitions of microorganisms and biological processes. One noteworthy recent development on this issue was the call of President Clinton and Prime Minister Blair to make the human genome freely available to all researchers. Although the scope of the initiative might not challenge existing patent legislation (it covered the total of the human DNA, but did not cover the work on the sequences of patented genes in academic work), it could be understood as an indication of willingness to admit some limitations to patentability of life forms and their parts.
61. As regards the protection of plant varieties by an effective sui generis system, the representative of Brazil noted that, while some delegations might find it useful, for instance, to have more guidance as to the concept of "effectiveness" for sui generis systems, the present language in Article 27.3(b) seemed to provide enough flexibility for each Member to decide on the most appropriate form of plant variety protection. Brazil had established a Law on the Protection of New Varieties of Plants in 1997. The sui generis protection in Brazil resulted in an effective protection of new plant varieties that had been developed in Brazil. Recently, Brazil had also adhered to the Convention on the Protection of New Varieties of Plants (UPOV). The UPOV system should always be considered as an important reference point, but an attempt to incorporate it into Article 27.3(b) could damage the delicate balance already established in that provision. The TRIPS Council should not single out one particular Act of UPOV as a model for implementation. From the perspective of developing country Members, for instance, the 1978 UPOV Act remained a useful reference for discussions, even if that instrument was no longer open for membership. In the last TRIPS Council meeting, the European Communities had recognized the difficulties in creating sui generis protection systems and the administrative system for handling the rights under it. Such recognition found support in the fact that, so far, few developing countries had adhered to the 1991 UPOV Act. Likewise, national experiences of other countries in developing other sui generis systems should not be excluded as important contributions to the discussions, as the recent notifications of the legislation from developing country Members might reveal.
62. On the relationship between the TRIPS Agreement and the Convention on Biological Diversity, the representative of Brazil said, as he had already stated at the last TRIPS Council meeting, that Brazil had made its best efforts to implement and enforce the TRIPS Agreement. At the same time, Brazil had vested interests in implementing the CBD, as the owner of the greatest biodiversity on the planet and the first signatory of the Convention. As a Member of both instruments, Brazil understood that both these should be mutually supportive and promote the sustainable use and exploitation of resources. In this sense, one of the most relevant issues to be discussed in the review of Article 27.3(b) should be the compatibility of the TRIPS Agreement with the relevant provisions of the CBD. On the one hand, the CBD already set some elements for supporting adequate and effective protection of intellectual property rights (as established in Article 16.2 of that Convention). Another provision that allowed for mutual support with other international agreements was Article 16.5, which established that "[t]he Contracting Parties, recognizing that patents and other intellectual property rights may have an influence on the implementation of this Convention, shall cooperate in this regard subject to national legislation and international law in order to ensure that such rights are supportive of and do not run counter to its objectives". Brazil believed that that provision was closely connected to the exercise of reviewing Article 27.3(b) of the TRIPS Agreement, by ensuring that TRIPS provisions provided for benefit sharing by both providers and users of genetic resources. At the last meeting of the TRIPS Council, several Members had made statements under the review of Article 27.3(b), which should be considered as a meaningful starting point for discussions on the compatibility between the TRIPS Agreement and Article 8(j) of the CBD. Brazil had already expressed its appreciation for the proposal by Bolivia, Colombia, Ecuador, Nicaragua and Peru. The proposal by Cuba, Honduras, Paraguay and Venezuela, as well as the one by the African Group, demonstrated that this issue remained as a priority for developing country Members. At the same time, Brazil also wanted to highlight contributions made by some developed country Members. Norway, for instance, had presented a very balanced and open minded approach as regards the relationship between the TRIPS Agreement and the CBD. Switzerland had also presented interesting inputs and ideas to the debate, such as the creation of a database managed by WIPO in cooperation with organizations which collected traditional knowledge of communities, in order to facilitate the examination of the novelty of claimed inventions. To some extent, Brazil agreed that traditional communities would benefit from the use of existing intellectual property rights and such a task would certainly fall within WIPO's mandate. Nevertheless, Brazil would not necessarily share Switzerland's conclusions that the creation of new intellectual property rights might be unnecessary, as the discussions at the WTO and other fora seemed to have just begun. Finally, Brazil emphasized the importance of the debates undertaken in other international organizations. Brazil understood that the discussion at these fora by no means resulted in a duplication of work, but rather established a synergy between the WTO and these other organizations that could contribute with their expertise on specific issues related to the discussions in this Council. In this sense, he would like to single out the discussions on access to genetic resources and traditional knowledge at WIPO. One of the possible outcomes of the Meeting on Intellectual Property and Genetic Resources on 17 and 18 April 2000 might be a recommendation for the establishment of a Standing Committee on Biodiversity and Traditional Knowledge in WIPO, which would serve as a significant input for the Council's exercise of reviewing Article 27.3(b).
