377. I have the honour of introducing this item on behalf of the co-sponsors of document JOB/IP/33/Rev.2 which include the African Group, Cuba, India and Oman.
378. Transparency remains an important issue within the operation and monitoring function of the WTO. The issue of compliance with notification obligations has been contentious. Developing countries often struggle to comply with onerous obligations, while in many instances, developed country Members also do not comply with their notification requirements or do so selectively.
379. In general, it can be said that the capacity of developing countries to comply with notification obligations is inextricably linked with their level of economic development and access to resources. The capacity and resource constraints that developing countries face cannot be underestimated. Notifications require a deep understanding of the entire range of WTO Agreements, mature institutional mechanisms and human resource capacities that are often lacking in developing countries. Any work in this area should be on supporting and incentivizing developing countries to address these difficulties, especially as it relates to transparency obligations.
380. The capacity and resource constraints that developing countries face are well documented. Under these circumstances, it is natural for Members to reserve economic resources for the most urgent and pressing matters. In so far as obligations undertaken under the Marrakesh Agreement and its annexes are concerned, there is no doubt that treaty obligations must be performed in good faith. Having said this, it is clear that the obligation to comply is not blind to the situation that a particular Member or groups of Members may find themselves in.
381. There was already discussion on this issue in 1996 in the Working Group on Notification Obligations and Procedures. In those discussions, "some developing country participants pointed out that in view of the ever-increasing workload, combined with limited resources in the small delegations, they had great difficulty in advising their governments on all aspects of the notifications required. Many developing countries had difficulty understanding the frequently complex and highly technical information demanded, and therefore faced a prohibitive task in providing complete responses to the notification requirements and formats. While they recognized that these notifications were part of their Membership obligations and they were prepared to respond to the maximum of their abilities, there were serious constraints to what they could achieve due to their limited resources."
382. This proposal deals not only with general issues of transparency but also focuses on specific TRIPS related issues.
383. TRIPS Article 66.2 requires developed country Members to provide incentives to enterprises and institutions in their territories for the purpose of promoting and encouraging technology transfer to least developed country Members in order to enable the creation of a sound and viable technology base.
384. Developed country Members have a positive legal obligation to provide incentives to enterprises and institutions in their territories to promote and encourage technology transfer to least developed countries (LDCs). For the longest time, LDCs have demanded that this requirement be made more effective. Pursuant to the Doha Ministerial Conference, the TRIPS Council has put in place a monitoring mechanism, however this mechanism does not evaluate whether developed country Members are compliant with their obligations under Article 66.2.
385. The obligation articulated in TRIPS Article 66.2 is not only mandatory but also continuous since no time limit has been set for the termination of this obligation. The record of compliance by developed countries is abysmal since information submitted under TRIPS Article 66.2 is so wideranging that in most cases it is not possible to distinguish where the information applies to developing countries in general or only to LDCs.
386. Information provided in this context in no way targets LDCs. In order to enhance Members' understanding of Article 66.2 it may be necessary to agree on a definition of what constitutes 'technology transfer', whereas the lack of a common understanding of the type of incentive required for promoting and encouraging technology transfer to LDC Members may further clarify developed country Members' understanding of the TRIPS Article 66.2 obligation. More transparency in this area would be supportive of LDCs' efforts to build a viable technological base.
387. On disclosure of origin of biological resources and/or associated traditional knowledge in patent applications, paragraph 39 of the Ministerial Declaration of 18 December 2005 requires that WTO Members agree to amend the TRIPS Agreement to establish an obligation for Members to require patent applications to disclose the origin of biological resources and/or associated traditional knowledge, including prior informed consent (PIC) and access to benefit sharing (ABS).
388. Despite a long discussion in the TRIPS Council in Special Session, no outcome has been produced on an implementation issue. Non-disclosure of such resources severely effects developing countries' efforts at improving substantive examinations and in assuring the integrity of determinations under traditional intellectual property legal requirements, in providing greater certainty as to the validity of granted rights or privileges. Traditional communities are severely affected by unlawful appropriation of biological resources and/or associated traditional knowledge. It would be useful to require WTO Members to make annual notifications on the number of patent applications based on traditional knowledge.