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

H.E. Ambassador Xolelwa Mlumbi-Peter
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
131.   As indicated in our intervention at the last TRIPS Council, South Africa is in favour of a more granular discussion of the three agenda item which informally have become known as the 'triplets'. I will deal with each of these agenda items in turn. Review of the Provisions of Article 27.3(b) 132.   Many developing countries advocate for the amendment of Article 27.3(b) of TRIPS to prohibit patents on life forms, this also includes diagnostic, surgical or therapeutic methods for the treatment of humans or animals. It also includes the policy flexibility not to grant patent exclusivity for the use of existing drugs for treatment of COVID-19. 133.   Countries may want to consider how to consider such exclusions from patentability based on current issues of diagnostics and treatment brought up in the context of COVID-19. Even in countries where a new use for an existing drug is in principle patentable, it will not always meet the conditions for patent protection, in particular the inventive step which is required. If these policies are not already in place, amendments to existing laws may take a long time to put into effect. South Africa is a non-examining jurisdiction which means that virtually every patent application that is filed, will be granted. Between January 2005 and July 2015, 40,131 patents originating from all over the world which were registered in South Africa, only 4064 of those patents had a South African origin. 134.   We are now attempting to fix this by introducing formal examination as envisaged in our IP Policy. The IP Policy sets out a range of proposals relating to key aspects of patent law that have an impact not only on public health but more broadly. In addition to substantive search and examination, IP Policy addresses the following issues (amongst others) - patent oppositions, patentability criteria, parallel importation, exceptions and compulsory licences. 135.   In the context of COVID-19, this ongoing legal reform will come too late to save even a single life where abuses of intellectual property rights lead to barriers to access. The South African patent landscape is characterized by the easy grant of patents of dubious quality and value, as well as the enforcement of a legal framework that appears to be heavily skewed in favour of patentees. What this means in practice is that in exchange for very little, market exclusivity is easily granted, and maintained, ordinarily at a high cost to society. Relationship between the TRIPS Agreement and the Convention on Biological Diversity 136.   As indicated in your introduction we would once again note our request for the update of the three factual notes and the request to invite the CBD Secretariat to brief the Council on the Nagoya Protocol to the CBD. Protection of Traditional Knowledge And Folklore 137.   South Africa would like to thank WIPO for the presentation, and would like to acknowledge the proposal by the delegation of Zimbabwe in the July 2020 TRIPS Council meeting to invite the organisation to brief the TRIPS Council. We note the outcome of the WIPO Assemblies of Members' decision to renew the mandate for the IGC for the 2020-2021 biennium, as well as the work plan for the IGC. 138.   Irrespective of the nature of the outcome and form of instrument envisaged under the IGC process in WIPO, it is our considered opinion that the best way to ensure the proper use of genetic resources and associated traditional knowledge is through an amendment to the TRIPS Agreement as set out in document TN/C/W/59 and subject to a legally binding two-tier dispute settlement processes as envisaged under the DSU.
19. The Chair recalled that the next three agenda items concerning the Review of the Provisions of Article 27.3(b), the Relationship between the TRIPS Agreement and the Convention on Biological Diversity and the Protection of Traditional Knowledge and Folklore had been traditionally addressed together. She had asked Members, at her consultations in September 2020, whether the Council should take these items individually; and no clear preference had been detected in this regard. She suggested that the Council maintain the traditional practice; and encouraged delegations to identify the specific agenda item to which they would associate their intervention.
20. At the July 2020 meeting, the delegation of Zimbabwe had expressed interest in inviting the World Intellectual Property Organization (WIPO) to brief the Council on its recently updated report "Intellectual Property and Genetic Resources, Traditional Knowledge and Traditional Cultural Expressions". After her consultations with delegations in September 2020, there seemed to be no objection. Since then, she had been in touch with WIPO and their representatives were willing to brief the Council.
21. She noted that, with respect to the sequence of discussion, the traditional practice had been that Members take the floor first, and observers afterwards. Considering that the Council had a full agenda and the need to be efficient with time, she proposed to offer the floor to WIPO first so that delegations could refer to the briefing in their subsequent interventions, where Members could also address the long-standing procedural issues. She invited WIPO to brief Members.
22. The representatives of WIPO took the floor.
23. The Chair thanked the WIPO Secretariat for the comprehensive briefing. She opened the floor for discussion, including long-standing procedural issues:
24. 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 were initially prepared in 2002 and last updated in 2006; and
25. The request to invite the CBD Secretariat to brief the Council on the Nagoya Protocol to the CBD, initially proposed in October 2010.
26. She recalled that Members' positions on these issues were well known and extensively recorded in the Council minutes. In addressing these procedural questions, she encouraged delegations to focus on suggestions how to resolve them.
27. The representatives of South Africa; Chile; Tanzania, on behalf of the African Group; Brazil; Bangladesh; Nigeria; Thailand; India; China; Indonesia; Chinese Taipei; the United States of America; Japan; Canada; Ecuador; and Australia took the floor.
28. The Chair recalled that one tool for the review under agenda item 4 was the information provided by Members in response to a list of questions on Article 27.3(b). In 2019, the Council had received two sets of responses; from Ukraine and Mexico. These had been the first responses in 15 years. There had been dynamic and significant developments in this area in many Members. Transparency was of considerable mutual benefit to all Members; both in terms of initial submissions and updates to earlier submissions, many of which were already two decades old. She encouraged delegations to submit responses to this Checklist or update their previous responses; as well as notify any relevant changes in legislation.
29. The Council took note of the statements made and agreed to revert to these issues at the next meeting.
IP/C/M/96, IP/C/M/96/Add.1