78. The representative of Brazil said that the WTO remained the best-placed, neutral and appropriate forum to address the issues under the agenda item. His delegation associated itself with the statement delivered by India on behalf of a number of developing countries, including his own, introducing document IP/C/W/438. He said that the position of his delegation regarding the first and second issues listed in the checklist were set out both in submission IP/C/W/429/Rev.1 and IP/C/W/438. He said that the two submissions by the group of developing countries on the first two issues in the checklist provided responses to the points raised in the submissions of the United States and Switzerland.
79. With respect to IP/C/W/434, he said that his delegation was concerned that many of the comments contained on the proposed disclosure requirements seemed to be based on assumptions that betrayed a diagnosis of the situation that did not do full justice to the nature of the bio-piracy problem and, in some cases, were based on an apparent misunderstanding of the nature and the intentions behind the proposals made by his delegation and the group of developing countries. He contested the assertion made in paragraph 6 of the US submission that national measures alone would constitute the most effective means to address problems of bio-piracy and misappropriation of genetic resources and associated traditional knowledge. The suggestion was problematic because it was widely recognized that bio-piracy was an international problem which could not be resolved by way of national means alone. He said that international measures were needed to address the problem as pointed out in submissions, including IP/C/W/429/Rev.1.
80. With respect to references made to the issues of prior informed consent and benefit-sharing in document IP/C/W/434, he said that it should be borne in mind what role the TRIPS Council, and the WTO more generally, could be expected to perform in discussing the issue in light of its mandate. His delegation did not think it was up to the TRIPS Council or its Members to prescribe to parties to the CBD, who have sovereign rights over their genetic resources, how they should implement their national access and benefit-sharing regimes. He said that Members who were interested in and committed to discussions on access and benefit-sharing per se should join the CBD and engage constructively in discussions taking place in that forum on, for example, the establishment of an international regime on access and benefit-sharing. The role of the TRIPS Council was to consider how it could be ensured that the TRIPS Agreement made its contribution in promoting a harmonious and mutually supportive relationship between the patent system and the CBD. His delegation's view was that the proposed mandatory disclosure of origin would make a significant, positive contribution to filling a perceived normative gap that allowed for bio-piracy to continue unabated, thereby rectifying a glaring inequity of the international patent system that allowed patent applicants for inventions derived from genetic resources to be rewarded for violating national access laws in the countries of origin of those resources. He said that to argue that measures to effectively address bio piracy should be pursued separately from the patent system, as suggested by the United States, seemed to miss the point.
81. He said that IP/C/W/434 also contained misunderstandings as to how the proposed disclosure requirements would relate to arrangements for fair and equitable benefit-sharing. The proposed disclosure requirements were not intended to replace measures on access and benefit sharing per se but to offer an effective incentive for patent applicants to comply with prior informed consent and fair and equitable benefit-sharing. Applicants with good intentions committed to lawfully accessing genetic resources of mega-diverse countries would have nothing to fear from the proposed disclosure requirement. His delegation did not understand the continued resistance to the group's proposals. He recognized the importance of the establishment of national access and benefit-sharing regimes to implement the CBD and pointed out that his delegation and a number of other countries already had those regimes. However, for reasons pointed out in previous discussions and in the new submissions, his delegation believed that relying solely on such national regimes would not be enough to effectively prevent bio-piracy and that a mandatory disclosure of origin requirement would constitute a necessary complementary measure.
82. He pointed out that suggestions had been made on how disclosure of origin and prior informed consent requirements could operate in respect of countries that had not yet established national access and benefit-sharing regimes. He said that his delegation did not agree with the assertion that disclosure requirements would add uncertainty to the patent system and said that the proposal was intended to provide greater certainty and predictability in the patent system for all stakeholders in promoting the sustainable use of the components of biodiversity. The current patent system did not provide that level of certainty for all stakeholders, particularly those from the mega-diverse countries and indigenous and local communities in those countries who had been victimized by the misappropriation of their knowledge and resources. A mandatory disclosure requirement would constitute an important confidence building measure, that would help restore the trust of all stakeholders in the patent system. It would provide greater clarity and predictability and could even help the facilitated access to biological resources and associated traditional knowledge which bio prospectors and researchers were interested in. On the other hand, he said that a malfunctioning patent system that condoned misappropriation was deleterious to innovation.
83. On the issue of possible administrative burden, he pointed out that the disclosure proposal was entirely reasonable given the nature of the serious problems that were sought to be addressed as well as the need to ensure that the international intellectual property system, particularly the patent system, was balanced and equitable and took on board the concerns of all stakeholders. He said that the fact that the patent system was presently perceived by some as over-burdened was no testimony to its effectiveness or relevance to the objectives of promoting innovation. On the contrary, evidence suggested that the patent system today was not functioning well. There were incentives for applicants to file applications relating to "questionable inventions" and anecdotes on this had proliferated. His delegation's view was that a more rigorous patent system that did not allow for the grant of patents for inventions of questionable merit was important to ensure its robustness, sustainability and relevance to the pursuit of the actual objectives of the intellectual property system, which was, to a large degree, what the proposal by developing countries on disclosure of origin was meant to accomplish. He stated that the objectives and principles of the TRIPS Agreement were clearly stated in its Articles 7 and 8 and needed to be materialized through the proposals on a mandatory disclosure requirement of origin and prior informed consent requirements. His delegation therefore did not understand the suggestions contained in document IP/C/W/434 that characterized the proposals of the developing countries as an attempt to misuse the patent system for the pursuit of objectives not linked to the patent system.
84. He said that document IP/C/W/434 also referred to the possibility that the proposed disclosure mechanism could bring unintended consequences that would run contrary to the purported objectives. He pointed out that his delegation was sensitive to the issue and that the proposed system would put in place a mechanism that was carefully calibrated and would not bring unintended consequences. With respect to the issue of the legal effects, the group was ready to discuss and further elaborate on these in the future. He said that his delegation also disagreed that the options suggested by the United States would effectively address the issues before the TRIPS Council. With respect to the three basic points addressed by Switzerland, he said that answers had been provided in the submission by the group of developing countries.
85. He said that the assertions that the intellectual property system had been a power tool for economic growth and that the patent system put in place through the TRIPS Agreement was beneficial to developing countries could not stand in the face of serious empirical tests and that, at present, there was no known statistical empirical evidence that would support these assertions. On the contrary, the evidence pointed in the opposite direction that, in fact, the patent system and the TRIPS Agreement had been beneficial for the developed countries and had not brought any of the purported benefits to developing countries. He said that the TRIPS Agreement should be an agreement for all countries and that the developing country proponents of the disclosure proposal wanted to see the patent system work well for all stakeholders in an equitable manner.
