58. The representative of New Zealand said that her delegation thought it important to have discussions on the issues in a structured manner that would enable all suggestions or approaches to be considered. She said that one issue where there appeared to be scope for progress and on which work could be focused was disclosure. Her delegation considered that the contract-based approach suggested in document IP/C/W/434 and the possibility of disclosure in applications for patents or plant variety rights, as suggested by the group of developing countries, were not mutually exclusive. While the contractual approach could be useful there was certainly merit in considering additional mechanisms, such as disclosure, in support of CBD objectives.
59. In response to document IP/C/W/434, her delegation agreed that there was no direct conflict between the TRIPS Agreement and the CBD as it was possible to implement both instruments consistently. Her delegation however saw the potential for a conflict and recognized that it might be possible to implement the two Agreements inconsistently. This meant that there was need for a discussion on the relationship between the two Agreements and on the various ways that they could be implemented in a mutually-supportive and flexible way. Her delegation also agreed with document IP/C/W/434 that disclosure in patent or plant variety rights applications alone would not ensure that prior informed consent was obtained and national access and benefit-sharing systems should first and foremost be established to enforce prior informed consent criteria and sanction any abuses. She stated that her delegation did not find "bio-piracy" a useful term in relation to intellectual property and patenting of inventions based on genetic resources was not, in and of itself, misappropriation. For the most part "misappropriation" in the access and benefit-sharing context related to improper collection or use of genetic resources or traditional knowledge, not the act of patenting per se.
60. She said that her delegation also saw potential merits in some of the proposals included in documents IP/C/W/429/Rev.1 and IP/C/W/438 and was interested in considering whether and how disclosure through the intellectual property system could supplement or support access and benefit-sharing systems, including prior informed consent requirements, in addition to the contractual approach and other legal or administrative sanctions. It would be interesting to explore further how the existing flexibilities in the TRIPS Agreement could be used to support disclosure of origin in the patent system. Disclosure in patent or plant variety rights applications was not a solution in itself as intellectual property could only play a modest supporting role, perhaps in monitoring and transparency in relation to benefit-sharing and prior informed consent. In regard to the proposals on enforcement of prior informed consent and access and benefit-sharing, the view of her delegation was that this was not the role of the intellectual property system and such proposals would not necessarily achieve the intended objectives.
61. She said that WIPO's IGC had a very important role to play in the process and that, while her delegation was willing to explore the issue in the WTO context, Members should be careful and avoid unnecessary duplication and try and take full advantage of valuable work of WIPO's IGC. Her delegation supported the proposal by Canada of an in-depth diagnostic approach as a way to assist the development of the various proposals on the table.
