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

H.E. Ambassador Dr. Walter Werner
5   PROTECTION OF TRADITIONAL KNOWLEDGE AND FOLKLORE

52.   Brazil has a well-known position on the importance of promoting the neutral support between the TRIPS Agreement and the Convention on Biological Diversity (CBD), which is contained in document TN/C/W/59. 53.   The introduction into the TRIPS Agreement of a mandatory requirement for the disclosure of origin of these resources in patent applications is an important objective for Brazil. A multilateral and mandatory disclosure would be the most effective way to address the misappropriation of genetic resources and traditional knowledge. This would require patent applicants to disclose the country of origin of a biological resource and provide evidence of compliance with prior informed consent and benefit-sharing. It would also contribute to patent examinations by providing additional information to patent offices. These, however, would not be overloaded with extra work since they would be just checking points in the new system. 54.   A mandatory disclosure requirement in patent applications will also contribute to enhance transparency about the utilization of associated traditional knowledge. This will not only ensure compliance with the CBD, but also accomplish one of the primary purposes of any intellectual property regime, namely, providing appropriate incentives and rewards to knowledge holders in acknowledgment of a benefit to society as a whole. 55.   In the past, we have heard some Members stating at this Council that WIPO is conducting negotiations on genetic resources. However, those same delegations have consistently blocked any textual advances in WIPO and negotiations there have been ongoing for the last eighteen years, without any concrete result. This leads to a frustration on the part of countries hosting a rich biodiversity and there is a need of a concrete answer from the multilateral IP regime. 56.   There were great, recent developments at the CBD level, with the entering into force of the Nagoya Protocol, which already has 109 Parties, more than half of all UN Members. The majority of WTO Members are likewise parties to both the CBD and Nagoya Protocol. More recently, the UN Sustainable Development Goals have given us a clear mandate to safeguard biodiversity and to promote compliance with the Nagoya Protocol. 57.   Therefore, Members would greatly benefit from an update of the factual notes, as proposed and supported by Ecuador and South Africa, India and other countries. This update does not prejudge positions of delegations, as those documents are restricted to facts. We also support inviting the CBD Secretariat to provide us a briefing on recent developments at the CBD level.

The Council took note of the statements made and agreed to revert to the matters at its next meeting.
14.   The Chair proposed that, following past practice, the three agenda items would be addressed together. Members had seen important developments in these areas, over the last decade. However, information on those developments had not been shared with the TRIPS Council. For example, the Review of Article 27.3(b) was based on an Illustrative List of Questions agreed by the Council. To date, only 25 Members had submitted responses to that list and there had been no responses or updates since 2003. Similarly, there had been no notifications of domestic mechanisms to protect genetic resources and traditional knowledge under Article 63.2 TRIPS. He encouraged delegations to submit or update responses and to notify relevant laws and regulations to the TRIPS Council. This would definitively facilitate and enrich the discussions. He recalled that there had been no new developments on two long-standing procedural issues, namely:
a. The suggestion, first made in November 2012, that the Secretariat update the three factual notes on the Council's previous discussions on TRIPS/CBD and related items; and
b. The proposal, initially submitted in October 2010, that the CBD Secretariat be invited to brief the Council on the Nagoya Protocol to the CBD.
15.   The representatives of India, Egypt, China, Brazil, Bangladesh, the Plurinational State of Bolivia, Ecuador, Chinese Taipei, Chile, South Africa, Indonesia, Canada, Thailand, Australia, Japan, the United States of America, and Switzerland took the floor.
16.   The Council took note of the statements made and agreed to revert to the matters at its next meeting.
IP/C/M/90, IP/C/M/90/Add.1