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

Ambassador Choi Hyuck (Korea)
154. The representative of Brazil said that the TRIPS Council had undertaken significant technical work on the issue of the relationship between the TRIPS Agreement and the CBD over the past two years. The work had gained considerable momentum when a group of developing countries had proposed a Checklist of Issues (IP/C/W/420) in the TRIPS Council in March 2004. The Checklist of Issues, which had widely been accepted as an appropriate basis for discussions on the issue, had helped Members focus on a set of important technical points regarding different aspects of an international legally binding requirement, which should be included in the TRIPS Agreement to require patent applicants to disclose the origin of genetic resources and associated traditional knowledge utilized in the claimed invention, as well as evidence of prior informed consent and fair and equitable benefit-sharing. 155. He noted that there was widespread recognition both among the WTO Members and the international community that an international mandatory disclosure of origin requirement in the patent system would constitute an effective and adequate solution to the problem of biopiracy and misappropriation of genetic resources and associated traditional knowledge. In this regard, in complying with the mandates established by Ministers under paragraphs 12 and 19 of the Doha Ministerial Declaration, the TRIPS Council had made significant progress in addressing technical aspects of the disclosure of origin proposal. In the course of the Council's substantive work, Switzerland, the European Communities, Australia, Canada, Malaysia, New Zealand, the Philippines, Chinese Taipei and other Members had raised several questions and points regarding the scope of the disclosure requirement, the extent of the obligation for patent applicants, the role of patent offices in processing and examining information presented by applicants, the relationship of the disclosure requirement with other instruments, such as the FAO ITPGRFA, and definitions of certain terms. All these questions had enriched the debate and had, in effect, further elaborated on the Checklist of Issues. The developing countries who supported the disclosure requirements had responded to those questions both orally and through a number of written submissions, in particular documents IP/C/W/429/Rev.1, IP/C/W/438 and IP/C/W/442. Meanwhile, responding to an interest expressed by Canada, Peru and India had made contributions on their national experiences, which had underscored the usefulness of disclosure of origin in the prevention of the granting of bad patents and misappropriation. 156. He said that the United States had tabled two submissions, IP/C/W/434 and IP/C/W/449, disagreeing with the disclosure proposal and defending what it considered to be an alternative framework for addressing concerns raised by the developing countries. In two documents, IP/C/W/443 and IP/C/W/459, Bolivia, Brazil, Cuba, India, and Pakistan had offered technical observations on the US submissions, demonstrating that the contract-based approach offered no solution to the grave problem of misappropriation which continued to victimize mega-diverse developing countries and to trouble the international community. Document IP/C/W/449 appeared to accept the need for an internationally recognized and legally effective disclosure system by proposing that the national contract-based system could be international in its outlook and might contain some international dispute settlement provisions. Though claiming to advance some purportedly "widely shared objectives" of WTO Members, the US submissions attempted to discredit the disclosure proposals tabled by developing countries by misrepresenting them and by denying the relevance and the nature of the problems raised in their submissions. 157. He said that biopiracy and misappropriation were real and painful problems. The overwhelming majority of the international community agreed that measures should be taken to address the concerns raised by developing countries. Moreover, it was clear that, to date, the only concrete solution on the table to address these problems, by filling in existing legal gaps and promoting a relationship of mutual supportiveness between the TRIPS Agreement and the CBD, remained the disclosure of origin proposal. The technical work in the TRIPS Council had shown that the disclosure requirement could be an effective, workable and balanced solution to the problem of biopiracy as it not only constituted a necessary measure for the mega-diverse developing countries, but would also embody significant advantages for patent applicants and the patent system as whole. As a simple non-burdensome requirement, the disclosure of origin requirement would build greater confidence in the patent system by improving its quality and increasing its certainty and predictability. The end result could only be a more credible and robust patent system as enshrined in the TRIPS Agreement, which would equitably reward all contributions to the innovation process, reduce transaction costs and facilitate the flow of information to the benefit of all parties, including researchers and the biotechnological industry. The disclosure of origin proposal, furthermore, fulfilled the development dimension criterion that Ministers had determined should constitute an integral element of Members' work. Biodiversity was found in abundance in the developing countries, while the technological capability for its exploitation was largely concentrated in the developed countries. The disclosure requirement would help to establish a level playing field, whereby all would benefit from the exploitation and sustainable use of the riches of biodiversity and associated traditional knowledge. Fully cognizant of the fundamental objectives of the intellectual property system, his delegation submitted that, as a basic matter of principle and fairness, the intellectual property system should neither encourage nor condone misappropriation and theft of genetic resources and associated traditional knowledge, which constituted genuine intellectual and economic contributions to innovation. 158. He said that the TRIPS Council had completed an important technical exercise. By maturing its understanding of the issue, the Council had now moved on to a stage where the advantages of disclosure of origin were widely recognized. Though some work remained to be done in clarifying issues relating to how a disclosure of origin mechanism could be introduced in the TRIPS Agreement, this was essentially a matter for the negotiating process. It was clear, therefore, that in complying with Members' mandates under paragraphs 12 and 19 of the Doha Ministerial Declaration, whilst taking into account the development dimension as instructed by Ministers, Members must now move on to a new stage in their work by negotiating how a provision could be introduced in the TRIPS Agreement to ensure that applicants for patents on inventions developed on the basis of the use of genetic resources and associated traditional knowledge should be required, as a condition to acquiring patent rights, to disclose the source and country of origin of those genetic resources and associated traditional knowledge, and to disclose evidence of compliance with prior informed consent and benefit sharing. This new stage should begin as soon as possible and a deadline should be set for its conclusion within the Doha Development Agenda. Not doing so now would leave an important gap in the fulfilment of the promise of development, which was supposed to be at the heart of the Doha Development Agenda. Therefore, he called upon the Chairman to report to the TNC and the General Council that this new level of maturity had been attained in discussions on this issue, and that negotiations should proceed in an accelerated manner, given the emerging consensus that disclosure of origin not only could but should be included in the TRIPS Agreement as a workable and effective measure to curb biopiracy.