74. The representative of Australia said that the TRIPS Agreement and the CBD were consistent and capable of being implemented in a mutually supportive manner. His delegation did not support commencing negotiations on an amendment of the TRIPS Agreement at this time. The issues surrounding access to biological resources and traditional knowledge were complex and international discussions were still progressing. He informed the Council that the WIPO IGC had requested its Secretariat to prepare a document for the 11th session in July 2007 that listed options for its further work, including work in the area of the disclosure requirement and alternative proposals for dealing with the relationship between intellectual property and genetic resources, the interface between the patent system and genetic resources, intellectual property aspects of access and benefit-sharing contracts, and a factual update of international developments relevant to genetic resources. Given the extent of work being undertaken in WIPO, he said that the TRIPS Council should consider the discussion and information in WIPO before commencing negotiations on these issues.
75. He said that Australia agreed that the equitable sharing of benefits from the use of genetic resources and/or traditional knowledge was important. However, Australia was still uncertain about the efficacy of a TRIPS amendment as a mechanism for ensuring compliance with national access and benefit-sharing and prior informed consent regimes. His delegation was concerned about the implications of the mandatory disclosure requirement for the integrity of the patent system, impact on users of the patent system and the administrative capacity of patent offices. He said that the potential impact of remedies for false disclosure or non-disclosure that involved discontinuance of patent applications or invalidation of patents, the administrative and technical capacity of patent offices to assess compliance with foreign access and benefit sharing and prior informed consent regimes - if this were an element of the disclosure requirement - and the introduction of additional costs to users during the patent application process, were particular concerns.
76. He then raised some questions about the disclosure proposals by the European Communities, Norway and Switzerland. In relation to Norway's proposal, he asked whether it would be enough to satisfy the proposed disclosure requirement for patent applicants to make a statement that prior informed consent and access and benefit sharing had been obtained; whether compliance with relevant national laws had to be confirmed by patent authorities; and how the disclosure requirements would ensure that novelty criteria were met. Regarding Switzerland's proposal, he questioned whether a refusal to process a patent application could be regarded as a de facto rejection of a patent application on the basis of non-compliance with a formal requirement; whether there had been adequate consideration of how the concept of traditional knowledge associated with genetic resources could be defined; and what level of contact with genetic resources might be sufficient to identify properties relevant for the invention in order to trigger a disclosure requirement. Regarding the EC proposal, he sought confirmation from the European Communities that it did not include a disclosure requirement in relation to prior informed consent and access and benefit sharing and raised the same question he had posed to Switzerland on trigger.
77. In conclusion, he said that there was a shared objective in the Council, and that it was important to build consensus on the nature and scope of the problems concerned before beginning to develop appropriate and effective solutions.
