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

H.E. Ambassador Dr. Walter Werner

80.   South Africa would like to recall its previous interventions on the substantive items that constitute the triplets. Specifically, on the issues of the relationship between the TRIPS Agreement and the CBD, we recall Paragraph 19 of the Doha Declaration. Document TN/C/W/59 constitutes an approach that a large number of developing countries have supported. This document requires access and benefit sharing, prior informed consent and disclosure of the source of material when a patent is applied for. South Africa is a Contracting Party to the CBD and has ratified the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization. 81.   The issue of unauthorised use of biological resources and traditional knowledge remains a serious problem internationally. The failure to ask permission or acknowledge the origin or source of the invention or creativity, failure to share benefits, culturally offensive use, and grant of patents or other forms of IP rights in error remain unaddressed. Given the international dimension of bioprospecting and patenting activities, national legislation is insufficient to address misappropriation and misuse of genetic resources and traditional knowledge. Strong multilateral disciplines are required in this area. Given the continued impasses in the WIPO IGC, the most appropriate forum to address these issues would be the WTO. 82.   In respect of procedural issues, this delegation once again calls on the Secretariat to update the three factual notes contained in documents IP/C/W/368/Rev.1, IP/C/W/369/Rev.1 and IP/C/W/370/Rev.1. We believe that an update of these documents will stimulate a debate that is characterized by persistent restatement of long held positions. We further support a briefing by the CBD Secretariat on the Nagoya Protocol and subsequent developments.

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