H.E. Ambassador Dr Walter Werner

China

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

113.   The relationship between TRIPS Agreement and CBD is an important issue in this Council. Over years, Members have conducted a lot of useful discussions on this issue. China attaches great importance to TRIPS and CBD and hopes that Members could constructively involve in this discussion presently. 114.   Regarding the substantial issues, China notes that the majority of Members support to amend the TRIPS Agreement so as to ensure the mutually support of TRIPS Agreement, the CBD and its Nagoya Protocol. China believes that the introduction of a mandatory disclosure requirement, prior informed consent and the benefit sharing, could prevent the misappropriation and erroneous patents. 115.   As to the issue of disclosure, China has provided the detailed suggestions on improving the transparency on genetic resources utilization, preventing the misappropriation of genetic resources and traditional knowledge, and preventing the grant of erroneous patent in two documents TN/C/W/52 and TN/C/W/59 co-sponsored by different Members. 116.   China also believes the prior informed consent and benefit sharing could make better protection for the genetic resources. While the benefits arrangement on contractual basis and the database solution could not serve the purpose of sufficient protection for genetic resources. 117.   As regard to procedure, China supports to invite the CBD Secretariat to brief on the Nagoya Protocol and hopes that the Secretariat could renew the three factual notes（IP/C/W/368/Rev.1, IP/C/W/369/Rev.1，IP/C/W/370/Rev.1). China believes that the discussion and negotiation in WIPO's IGC could not hinder the Members to find a solution in WTO as Ministers have given the Council the mandate to examine the relationship between TRIPS and CBD.

16.   The Chair said that, as had already been noted during previous meetings, WTO Members had seen important developments in this area over the last decade. However, they had not shared information on those developments with the TRIPS Council. He believed that such information would enrich discussions. The Council had agreed on an Illustrative List of Questions (IP/C/W/122), which served as the basis for the review of on Article 27.3(b). However, only a minority of Members had provided responses; and there had been no response or updates since 2003. Similar gaps were also apparent with regard to Members' obligations under Article 63.2, as important legislative developments had not been notified to the TRIPS Council. He encouraged delegations to submit or update responses and to notify relevant laws and regulations to the TRIPS Council.
17.   The Chair noted that there were also two long-standing procedural issues which have been discussed for many years:
a. The suggestion made in November 2012 that the Secretariat update the three factual notes on the Council's previous discussions on the TRIPS and CBD and related items; these notes had been initially prepared in 2002 and last updated in 2006; and

b. The request that the CBD Secretariat be invited to brief the Council on the Nagoya Protocol to the CBD, initially proposed in October 2010.
18.   The Chair reported that there had been no developments on these procedural issues, during the informal consultation that had taken place the previous week. He invited delegations to share their suggestions on how to make progress.
19.   The representatives of India; Ecuador; South Africa; Brazil; Benin, on behalf of the LDC Group; the United States; Bangladesh; Japan; Switzerland; Australia; the Republic of Korea; Canada; China; and Indonesia took the floor.
20.   The Chair encouraged Members to have further discussions to resolve the outstanding procedural issues, and said that he stood ready to assist in the consultations.
21.   The Council took note of the statements made and agreed to revert to the matters at its next meeting.

IP/C/M/89, IP/C/M/89/Add.1