Ambassador Alfredo Suescum (Panama)

Bangladesh on behalf of Least-developed countries

4; 5; 6 REVIEW OF THE PROVISIONS OF ARTICLE 27.3(B); RELATIONSHIP BETWEEN THE TRIPS AGREEMENT AND THE CONVENTION ON BIOLOGICAL DIVERSITY; PROTECTION OF TRADITIONAL KNOWLEDGE AND FOLKLORE

53. The delegation of Bangladesh does not support the patenting of life forms comprising plants and animals and living beings for ethical reasons. We therefore call for the review of Article 27.3(b) in order to protect developing countries and LDCs from the negative effects of this provision on the key sectors that affect livelihoods in these countries such as agriculture, health, food and climate change. This would help, inter alia, food security and preserve the integrity of rural and local communities. Patenting of life forms at a multilateral level should be prohibited. 54. On the relationship between the TRIPS Agreement and the CBD, we hold that States have the right and duty to protect their traditional knowledge and genetic resources. There is therefore a need to amend the TRIPS Agreement to ensure this, with a view to require patent applicants relying on biological materials to provide information on the source and country of origin of biological resources and traditional knowledge used in the invention. Along the same lines, the applicants must show evidence of prior informed consent from and benefit sharing arrangements with the concerned authorities or holders under the relevant national regime. This requirement, which is consistent with the transparency principle established in the multilateral trading system, will help reduce the number of erroneous patents. We believe that while traditional knowledge should receive legal recognition, its protection and proper use would contribute significantly to achievement of development goals, especially SDGs. 55. For LDCs this is a core issue, and they are hardest hit by cases of biopiracy and misappropriation of the traditional knowledge and folklore, due to their lack of capacity to protect these resources. Action on this important issue has been unanimously recommended by our Ministers in Doha and Hong Kong, and they were right to consider this as a doable option. So we believe that these proposals and subsequent action in line with IP/C/W/59 would be a good way to start our next course of action. The LDC Group has also extended their support to IP/C/W/59. 56. In the same vein, we consider that the CBD Secretariat could brief the Council so that we can base our future deliberations on their briefing. These are long-standing issues, as has been mentioned, and we would like to see sincere political will from the Members to resolve the problem.

IP/C/W/59

The Council took note of the statements made and agreed to revert to the matters at its next meeting.

31. The Chairman recalled that, at the Council's meeting in November 2016, Members had exchanged views under these agenda items. The discussions had covered substantive issues, such as the suggested inclusion of a mandatory disclosure requirement in TRIPS, as well as the patentability of life forms. Discussions had also covered two pending procedural proposals – whether the CBD Secretariat should be invited to debrief the Council on the Nagoya Protocol, and whether the WTO Secretariat should update the three factual notes that had been prepared and last updated ten years ago.

32. Since Members had remained divided both on the substantive and procedural issues, no progress could, however, be made. There had also been no unanimous support for a proposal made by some delegations that the CBD Secretariat be asked to debrief the Council when it was meeting in informal mode.

33. He recalled that there had been no more responses or updates to the Illustrative List of Questions on Article 27.3(b), and no notifications or reports of domestic mechanisms to protect genetic resources and traditional knowledge. Despite the importance attached to the Article 27.3(b) review, which had been on the Council's agenda since 1998, the last response or update on the questions had been submitted in 2003, some 14 years ago, and material had been received from fewer than one in six Members. He therefore reminded delegations that the Article 27.3(b) review was an integral part of the TRIPS Agreement. The information provided to the Council clearly did not cover the important developments that many WTO Members had seen in this area over the last decade. Regarding the CBD Secretariat briefing and the updating of the Secretariat notes, there was no substantive signs of evolution towards an outcome.

34. The representatives of Brazil; the Plurinational State of Bolivia; Bangladesh on behalf of the LDC Group; India, Ecuador; Egypt; Indonesia; China; Nigeria on behalf of the African Group; Australia; the United States; Switzerland; the Republic of Korea; Japan; Canada and the European Union and the Chairman took the floor.

35. The Council took note of the statements made and agreed to revert to the matters at its next meeting.

IP/C/M/85, IP/C/M/85/Add.1