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

Mr. Tony Miller (Hong Kong, China)
C; D; E 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 FOLKLORE1
82. The representative from Brazil recalled that his delegation, together with the Indian delegation, had tabled a document containing a commentary on the issues raised by the United States in document IP/C/W/434. He said that they were willing and open to consider any additional issues that the United States would like to raise on the responses contained in their submission. He said that his delegation was ready to engage on the issue of the role of patent offices and definitions. These were important technical matters that had to be addressed in the course of negotiations 83. He responded to the argument that had been made on the suggestion that disclosure of origin was not feasible and should not be included in the TRIPS Agreement because it would not solve all of the problems that developing countries were facing. He emphasized that the disclosure requirement was not intended as a stand alone mechanism but could make an important contribution in addressing the concerns that had been raised by developing countries. The international patent system and the TRIPS Agreement would be improved by such an obligation as it would provide for a more cost-effective system to pursue appropriate actions in response to cases of biopiracy and misappropriation. 84. In response to the point that there was no reference in the CBD to disclosure of origin, he pointed out that an article of the CBD did state that the parties to that convention should take measures to ensure that intellectual property rights were supportive of and did not run counter to its objectives. The TRIPS Agreement was an international intellectual property agreement administered by the WTO and that was the reason why the group of developing countries had come to this forum to present their proposals and it had a role to play to ensure that the objectives of the CBD were not undermined. 85. With respect to the issue of the absence of national regimes, he said that the submissions did state that, for cases where national access and benefit-sharing regimes were not available in the country of origin, patent applicants would merely have to make such a declaration. He pointed out that the CBD was an international agreement and that prior informed consent and benefit-sharing, as embodied in the CBD, were to be respected even in cases where specific ABS regimes might not have been set up in the countries of origin. Responding to the point made with respect to the burden on patent offices and patent applicants, he said that this argument was not relevant since the TRIPS Agreement had created a significant burden, particularly on developing countries and impoverished peoples and consumers of technology in general. 86. With respect to arguments on appropriate forum, he reiterated that there was a mandate from the Ministers to address this issue and encouraged all delegations to engage constructively in the discussion and refrain from engaging in "forum shopping". He said that the TRIPS Council had also been charged with taking into account the development dimension in its future work. It was up to WIPO Member States to ensure that their interests were properly taken care of in the work of that organization, not only in the context of the PCT and the PLT, but also the SPLT. He pointed out that the discussion in the TRIPS Council had, in fact, moved work forward on the disclosure issue and the relationship of the TRIPS Agreement and the CBD. These discussions had allowed the proponents to present the technical points that would have to be considered in the course of the negotiations for an amendment of the TRIPS Agreement.
IP/C/M/47