131. The representative of Australia underlined a need for a clear meaning of the term "biopiracy". She said that biopiracy was used to refer to different situations. The first category, as emphasized by Brazil, referred to cases where genetic resources and/or traditional knowledge had been obtained illegally, i.e. in contravention of laws governing access to those resources in those countries. A second one, as emphasized in Peru's paper, referred to cases where genetic resources or traditional knowledge had been obtained legally and were used in patents which arguably lacked novelty due to the existence of prior art in the form of traditional knowledge. In her view, it was important to distinguish between those two categories in order to properly deal with the underlying problem. The biopiracy cases documented by Peru appeared to fall within the second category, although one case was not entirely clear. Regarding the case concerning an application in Japan, she said that as the patent application had been rejected by the JPO, she wondered what was Peru's concern over it. Regarding the second case, which was the only one of the five cases given where a patent had been granted, no basis had been given for the claim of biopiracy. She wondered whether Peru argued that prior art existed or that genetic resources had improperly been removed from Peru in contravention of its national laws. She said that all these questions led her delegation to a fundamental question: how would the disclosure proposal have affected the outcome of the cases documented by Peru or how would the disclosure proposal have provided patent examiners information to better access prior art and to avoid bad patents or biopiracy. She said that the disclosure provisions would indicate at most that a further concentration on a search of documents from the origin country might be warranted. However, even then in practice this information was unlikely to be helpful in identifying relevant prior art for a number of reasons. Firstly, genetic resources were often available in many different countries at the same time. Secondly, much information about novelty and inventive properties was not recorded and thus not revealed in prior art searches, which was even more likely in the case of traditional knowledge.
132. She further said that there were a number of existing tools which could facilitate disclosure, such as the International Patent Classification System which included traditional medicine related subject matter and allowed for more targeted documentation searches, and the PCT minimum documentation which included traditional knowledge and non-patent literature, and could be consulted by international search authorities to have comprehensive prior art searches. She said that database-type solutions seemed to be more useful in addressing the problems facing Peru than the proposed amendment of the TRIPS Agreement. She would like to have Peru's views on Japan's proposal for databases. In conclusion, she said that her delegation agreed with India that the objectives of the disclosure group, namely to prevent bad patents and misappropriation and to ensure equitable benefit sharing, had been widely shared by Members. However, her delegation disagreed with India on the means of achieving these objectives.