59. The representative of Brazil thanked the delegation of Japan for its presentation of the Nagoya Protocol, although she wished that the CBD Secretariat had made such a presentation. She said that the approval of the Nagoya Protocol had increased the importance of the discussion in the TRIPS Council on how Members could establish a mutually supportive relationship between the TRIPS Agreement and the CBD. There were clear international parameters on prior informed consent and access and benefit sharing that would guide countries in designing their national legislation. The TRIPS Agreement had an essential role to play in ensuring prior informed access to genetic resources, achieving equitable sharing of benefits arising from the use of traditional knowledge and genetic resources, and preventing erroneous patents.
60. By linking patent processing with the observance of national laws on prior informed consent and access and benefit sharing, the patent system could be an important tool in helping compliance with such laws. If patent applicants knew that they would be asked to disclose the source or origin of genetic resources or associated traditional knowledge anywhere in the world and the processing and validity of patents depended on the veracity of that information, they would have a strong incentive to comply with national laws. Such objectives could not be achieved either by contractual arrangements or prior art procedures. Contractual arrangements on access to genetic resources and fair and equitable sharing of benefits were already in place in many national laws including in Brazil. Contracts might work well if they were respected. The problem would arise when there was a need to verify and ensure compliance, especially when genetic resources or associated traditional knowledge in question were taken out of the country. Another open question was how to prevent those who had not complied with prior informed consent and access and benefit sharing requirements from profiting from their illegal acts. Without a disclosure requirement in patent applications, there was no way to know that genetic resources were utilized in the patented invention and compliance would depend entirely on the good faith of collectors.
61. Turning to prior art requirements, she said that it was more a way of avoiding the grant of erroneous patents than of preventing misappropriation. Even as a means of preventing erroneous patents it was unrealistic for patent offices to have information on all genetic resources and associated traditional knowledge. Even if database systems were established, they could never account for the entire universe of genetic resources and associated traditional knowledge in all possible forms, especially because a great part of such resources were still unknown. It would also be difficult to justify the high cost involved in that endeavour, especially in comparison with the cost of a simple checkbox under the disclosure requirement. In conclusion, her delegation was in favour of amending the TRIPS Agreement to include a mandatory requirement. Patent applicants should inform the providing country and the country of origin of genetic resources and associated traditional knowledge utilized in inventions, and comply with prior informed consent and access and benefit-sharing legislation. The disclosure requirement was the most effective and least burdensome way for the TRIPS Agreement to support the compliance with the CBD and the Nagoya Protocol.
