240. Ecuador would like to thank the Members of this Council for dealing with this issue, which it requested to be included in the agenda for two essential reasons: firstly, because it is a very timely and important issue for all Members and, secondly, because no Member of this Council has spoken out against the idea that it is necessary to deal with the harmful effects of climate change, in other words, it is an issue that affects the international community as a whole. What we do not agree with is the way in which it is dealt with.
241. I should like to refer to various concerns raised by some delegations at the Council's meeting in October 2013. Concerning the questions posed by Switzerland, asking for Ecuador's views regarding paragraph 4 of the communication of March 2013 submitted to this Council, more specifically requesting Ecuador to elaborate on its concern about lack of information and to indicate specific cases in which the existing tools and procedures of the IP system, as also provided in the TRIPS Agreement, have actually posed a problem. It should be pointed out with regard to the paragraph mentioned by Switzerland in its question (paragraph 299 of document IP/C/M/73/Add.1 entitled "Minutes of Meeting" held in June 2013), that Ecuador gave further details in the "Justification" part of its proposal, based on the statements made in relevant forums, so this is the general view expressed in some discussions. The lack of information that might represent a barrier, however, cannot be explained in terms of the disclosure or non disclosure of the information in the patent, but rather the information summarized in the patent application does not permit effective transfer of technology. Put another way, it is clear that patent applications do not include the information needed to work the invention after its validity has expired and a licence been granted, making it difficult for developing countries to have access.
242. Switzerland also asked what Ecuador meant by excessive protection, a view also set out in paragraph 4 of Ecuador's proposal. In this regard, excessive protection means a mechanism for protection that approaches the limit of failure to comply with the objective contained in Article 7 of the Agreement, which indicates that the right protected is the contribution to the promotion of technological innovation and the transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare, and to a balance of rights and obligations. To give some examples, in the case of environmentally sound technological products, the more excessive the protection the higher the price and production costs for small, medium sized and large producers, generating incremental costs for the end products, meaning that they are no longer viable.
243. Another example of excessive protection is when each process for obtaining the end product using a particular type of technology is patented and necessitates large scale investment so it becomes a barrier when comparing the cost of the investment needed to develop the product.
244. This is why Ecuador stresses that mechanisms are required to facilitate the transfer of ecologically rational technology, including agreement on international cooperation for the transfer of know how to help to prevent the worst effects caused by climate change and to make the technology more accessible to developing countries.
245. Lastly, the Swiss delegation was not clear what was meant by "inappropriate enforcement". In Ecuador's view, inappropriate enforcement means the fact that the patent system is applied without respecting the objectives that promote IPRs set out in paragraph 7 of the TRIPS Agreement and in its Preamble, which states "Recognizing the underlying public policy objectives of national systems for the protection of intellectual property, including developmental and technological objectives."
246. The above represents Ecuador's reaction in response to the questions posed by the Swiss delegation referring, as we have seen, to the "Justification" section in paragraph 4 of Ecuador's document, a section whose objective was to explain the overall background so that, by means of serious studies, Members could have a clear picture of the situation of the transfer and use of green technologies, above all in developing countries.
247. At the Council's previous meeting, several countries such as the United States and the representative of the European Union referred to various studies which, in their view, showed that transfer of technology to developing countries had occurred in connection with the issue before us, based on the important role played by patents as a tool for generating innovation. We have, however, reviewed a large number of these studies and those by other authors such as Levin and Boldrine, who in Chapter 8 of the study "Against Intellectual Monopoly" assert that the patent system and monopolies are not the best way of promoting innovation.
248. Even though reference has been made to various studies, there has been no mention, for example, of the number of clean energy licences granted to developing countries or references to cases in which there has been transfer of technology, or to which Latin American or African producers this type of technology has been transferred. We therefore ask these delegations to furnish figures and statistical data backing up their statements.
249. Authors such as Joseph Stiglitz and Becker state that the incentives afforded by the patent system are not enough.
250. In the statements made by the delegates of the United States, Switzerland, the European Union and other countries, Ecuador was requested to submit studies or further documents in support of the proposal submitted for the Council's consideration. In this regard, I may point out that the proposal submitted by Ecuador on 1 March 2013 contains various textual references, many of them concerning authors supporting Ecuador's proposal.
251. Matthew Littleton, mentioned in the Ecuadorian proposal, considers "Despite numerous international commitments to promote transfer of climate change related technologies to developing countries, such transfers are not occurring at a sufficient rate to aid these nations in mitigating and adapting to the effects of climate change", a quotation from the article "The TRIPS Agreement and Transfer of Climate Change Related Technologies to Developing Countries", published in Volume 33 of the Review "A United Nations Sustainable Development". This article, which I invite you to read, also covers the options for improving the transfer of technology by making use of the existing flexibilities on TRIPS and by implementing government and private policies.
252. These are the responses to the concerns raised at the previous meeting. We are willing to respond as far as possible to new concerns that may be raised because we consider that further studies are needed and could be included in our proposals. We are therefore open to receiving further information on the basis of which Ecuador is ready to prepare a revised document. It is important to address the possibility for the Secretariat of this Council to provide new elements to be included in the document, which we offer to prepare for the Council's consideration at its next meeting.
