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

Ambassador Carlos Pérez del Castillo (Uruguay)
1. The representative of Australia said that his delegation had found the process of collecting and analysing differing national experiences very productive and very useful. Article 27.3(b) was a negotiating compromise and contained some flexibility as a result of that. It was clear that Members had chosen to exercise that flexibility and his delegation fully respected that. At the same time, as expected, there was a certain convergence of practices, which was to the benefit of all Members. Australia was, at best, a middle-ranking economic player and in some areas of technology it was effectively a developing country. His country was and remained dependent on imported technology, especially biotechnology. At the same time, Australia was rich in biodiversity and it had been blessed with the heritage of a rich store of indigenous knowledge. Therefore, his delegation was confronted by many of the policy concerns that were often highlighted in discussions of this nature. There was an active process of review of biotechnology policy in a very general sense with a concern for the social and economic benefits and environmental consequences as well. This had involved a careful look at the intellectual property system and, as the Secretariat's compilation demonstrated, Australia had a reasonably broad scope of protection of biotechnology in its patent system. Furthermore, Australia had recently introduced a plant variety system in conformity with the latest UPOV version. The result of this review process, which was taking place at many levels, had been a conclusion that an intellectual property system was indispensable in deriving the expected benefits from the growth of biotechnology as a key enabling technology that would be applied in sectors as diverse as informatics, mining and agriculture. But there had been concerns raised about the capacity of Australia to use the system effectively as well as whether the system could be used to ensure equity. There were also concerns about the possible anti-competitive use of intellectual property rights. All these were policy concerns that needed to be addressed squarely. But they would not be addressed by adjusting the scope of patentable subject-matter. This was one very clear conclusion his delegation could draw. Those concerns would be addressed by a concerted domestic and international effort to upgrade the sort of practical skills and awareness that were necessary to derive the expected benefits from intellectual property rights in this area. Those skills extended to the practical skills required to enter into, for example, negotiations on licences or material transfer agreements. This was an important area where concerted international effort could only yield dividends for all parties concerned. However, that sort of activity, as important as it was, was not catered for by the subject-matter of the specific Article Members had under review. Concerns about the potential misuse of intellectual property rights to achieve monopolistic outcomes were of concern to Australia, but were already catered for in a different section of the TRIPS Agreement. There was a clear signal that countries were at liberty to take appropriate steps to address potential abuses of the intellectual property system. His delegation would also stress the limited impact of the patent system in the broader areas of concern that had been identified in this regard. Members would have to bear in mind, firstly, that patenting was generally only available for novel and non-obvious inventions. It did not give access to existing bio-genetic resources. It did not allow re-monopolization of material in the public domain. Moreover, the patent system had worked undeniably effectively also in the biotechnological area, in disseminating technology, in moving people away from confidentiality and trade secret arrangements, forcing the publication of the state-of-the-art research in this area on a global basis. Most inventions were only covered by patents in a handful of countries, a small minority of WTO Members, but the technology in question was available to researchers in all Members. If a patent application illegitimately claimed existing public domain material, then it could be successfully opposed. But more than that, the benefits of research, i.e. the benefits of technological development in this area reflected in a patent application, were available to all. If Members did not like some aspects of bioengineering, for example if they did not like human cloning, the appropriate approach was to control that directly. If an analogy could be drawn, no Member engaged in arms control by discussing whether the scope of patentability should include weapons or not; it was done by controlling armaments. Equally, if there were concerns about the environmental impact of certain technologies, then the direct approach was having the appropriate environmental controls. The most important aspect of the domestic considerations of these issues, in his country, had been skills promotion. His delegation was committed to working with WTO Members, and especially with Australia's partners in its region, to develop the sort of practical skills that were necessary to derive the expected benefits from the system. His delegation acknowledged that not all countries were able to take full advantage of the system, as Australia was not able to do so. In a recent regional training programme on biotechnology and intellectual property rights that his country had conducted, Australia had reassured its regional partners that Australia itself had a long way to go to make this system effective, but took the view that there was no reason for it not to make an energetic start in the process and not to pull out its resources as far as possible.