Actas - Consejo de los ADPIC - Ver detalles de la intervención/declaración

Mr. Tony Miller (Hong Kong, China)
62. The representative of Australia said that his delegation saw no conflict between the TRIPS Agreement and the CBD and said that the two Agreements could be implemented in a mutually supportive manner. He said that his delegation shared the three objectives outlined in document IP/C/W/434 and thought it was useful to approach the questions from the perspective of shared objectives. He noted that there were differences between delegations on the issues but that there were also points of agreement that needed to be recognized. He noted that there had been difficulties in coming to a common understanding on the nature of the problems to which certain amendments to the TRIPS Agreement had been proposed as solutions. He pointed out that one way of coming to a shared understanding of the problems would be by taking a closer look at real-life experiences of countries that had tried to implement disclosure systems. The practical focus would help in achieving progress on the issue by establishing where there were real problems and how best to address them. He said that his delegation was interested in knowing more about the experiences of countries that had implemented the disclosure system to find out how effective these systems were, whether or not there had been particular problems or successes and what users and owners of knowledge thought of the system. 63. He informed the Council that his country was still in the process of implementing an access and benefit-sharing regime, including an intergovernmental agreement on genetic resources management, for controlling access to and the use of genetic resources on commonwealth lands and waters. This system included measures to ensure that any benefits arising from the use of such resources would be equitably shared. He said that his delegation took seriously the need to prevent the issuance of erroneous patents and, to this end, Australia had recently amended its Patents Act to increase the information available to the Commissioner of Patents regarding the patentability of an invention. He said that the amendments required applicants to provide the results of searches carried out by or on behalf of foreign patent offices in relation to corresponding applications. That change was one of a number of amendments that had been made domestically to try to ensure as far as possible that the Australian Patent Office only granted patents for inventions that met the patentability requirements. 64. His delegation noted that some useful work had been done in WIPO on the recognition of traditional knowledge and genetic resources in the patent system. The WIPO Secretariat had received over 50 responses to a questionnaire it had issued on the matter which could provide useful information on existing measures for identifying relevant traditional knowledge and genetic resources, thereby helping to prevent patent offices from granting erroneous patents. He said that the work in the IGC continued to be central to the overall way in which work would be taken forward, particularly given its technical nature. 65. Regarding document IP/C/W/429/Rev.1, he said that it was not clear to his delegation how linking the introduction of a mandatory disclosure requirement with the possible effects of wrongful disclosure, as outlined in paragraph 13, would address the problem of bio-piracy. He said that, as Canada had suggested, it would be helpful if an illustration of how such a provision would work in a specific instance, for example in the case of the neem tree were provided. Referring to paragraph 5 of document IP/C/W/429/Rev.1, he questioned how the method of disclosure outlined in the paper would prevent the system from suffering from cost problems, particularly in the resolution of disputes arising under such a system. Further, referring to paragraphs 8 and 10 of the same document, he asked the co-sponsors to clarify whether the standard of proof would be a subjective one, that is what the patentee knew, or an objective test, that is what the patentee ought to have known. 66. He said that the national experiences so far indicated that there was no one-size-fits-all solution to the various problems associated with access and benefit-sharing of genetic resources. He said that his delegation was not closed to a discussion of the role that the patent system could play as part of a possible solution, but that there were also other approaches equally deserving of attention and all options needed to be taken into account.