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

Ambassador Dacio Castillo (Honduras)
D; E; F REVIEW OF THE PROVISIONS OF ARTICLE 27.3(B); RELATIONSHIP BETWEEN THE TRIPS AGREEMENT AND THE RELATIONSHIP BETWEEN THE TRIPS AGREEMENT AND THE CONVENTION ON BIOLOGICAL DIVERSITY; PROTECTION OF TRADITIONAL KNOWLEDGE AND FOLKLORE
77. The representative of South Africa said that there were three fundamental conflicts between the TRIPS Agreement and the CBD according to their respective spirit and the objectives. Firstly, Article 3 of the CBD provided that states had sovereign rights over their biological resources while the TRIPS Agreement overlooked states' sovereignty but recognized private IPRs over those resources. Secondly, the CBD provided states with an opportunity to demand sharing of the benefits arising from commercial use of biological resources while the TRIPS Agreement negated that legal authority. Thirdly, the CBD was aimed at reducing biopiracy by requiring prior informed consent whereas the TRIPS Agreement did not contain such a requirement, which meant that patent applications could be submitted over biological resources or knowledge of certain local communities in any other countries. The TRIPS Agreement recognized patent rights on the basis of novelty which did not take into account traditional knowledge and cultural practices. There was a need to avoid erroneous grant of patents for inventions that involved the use of genetic resources and related traditional knowledge. There was also a need to secure compliance with national access and benefit-sharing regimes in the relevant Member's jurisdiction. It was clear that the application of the TRIPS Agreement might threaten the preservation of biological resources and traditional knowledge. 78. The three conflicts were what Article 16.5 of the CBD advised against, which read that IPRs must not be in conflict with sustainable use of biodiversity. What could aid in reconciling the two agreements was a proper legal review of both agreements with the aim of making amendments where necessary to ensure mutually supportive application. Under the review of Article 27.3(b) of the TRIPS Agreement, amendments could be made to incorporate the CBD objectives into the TRIPS Agreements in order to preserve biodiversity, prevent biopiracy and include protection of local community rights in accordance with the spirits and purport of the CBD.
IP/C/M/69