H.E. Ambassador Xolelwa Mlumbi-Peter

Kenya

5; 6; 7 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

186.   The protection of biological resources, traditional knowledge and folklore is an important developmental issue and of particular interest to many Members. In this regard, Kenya fully supports the examination of the relationship between the TRIPS Agreement and the Convention on Biological Diversity (CBD), as the TRIPS Council was mandated by Paragraph 19 of the Doha Ministerial Declaration. 187.   Kenya believes that TRIPS Agreement and the CBD should be implemented in a manner that is mutually supportive and does not run counter to their respective objectives. We therefore consider that the TRIPS Agreement should be amended to incorporate a provision for Members to require that a patent application involving the utilization of genetic resources and/or associated traditional knowledge, should disclose the source and country of origin of the biological resources and the associated traditional knowledge, in accordance with the CBD. In addition, there should also be a requirement of evidence of prior consent and equitable benefit sharing under the relevant national law. 188.   We believe that to develop a sound and viable technological base in developing countries and LDCs, any utilization of local genetic resources must be in a sustainable manner in order to conserve biological diversity. 189.   Finally, Kenya continues to encourage the engagement of the Director-General in his mandated consultative process on the relationship between the TRIPS Agreement and the CBD. We look forward to the outcome of these consultations and encourage other Members to engage constructively in the process, considering that this issue is of high priority for developing countries, since they are often victims of bio-piracy. These dishonest practices must be combated effectively to facilitate the sharing of the benefits gained from the exploitation of such resources.

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

22.   The Chair proposed that, following past practice, agenda items 5, 6 and 7 be addressed together. She recalled that there had been important developments in this area in many WTO Members that have not been shared with this Council. So far, only 27 Members had responded to the List of Questions on Article 27.3(b), with Mexico and Ukraine being the most recent submissions. Two longstanding procedural issues under these items had been discussed extensively on the record, at every regular meeting of the Council for almost ten years now:
a. The suggestion for the Secretariat to update the three factual notes on the Council's 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 to invite the CBD Secretariat to brief the Council on the Nagoya Protocol to the CBD, initially proposed in October 2010.
23.   Delegations' positions on these issues were well known and already extensively recorded in the Council's minutes. Considering that the agenda was particularly full for the present one-day meeting, she strongly suggested that delegations focus their interventions on suggestions on how to resolve the differences and make progress on the substantive issues. Existing positions were very well known and were very clearly on the record, so there was no need to reiterate them.
24.   The representatives of Brazil; Tanzania, on behalf of the African Group; Bangladesh; South Africa; Zimbabwe; China; India; Nigeria; Kenya; Switzerland; Indonesia; Canada; the United States of America; the European Union; and Japan took the floor
25.   The Council took note of the statements made and agreed to revert to the matters at its next meeting.

IP/C/M/95, IP/C/M/95/Add.1