50. The representative of Peru said that the requirement of prior informed consent accepted by all Members would enable Members to ensure compliance with the requirements of Article 15 of the CBD and would also ensure transparency in the administrative procedures for the grant of a patent. Thus, it would ensure that patents were being obtained legally and ensure legitimate access to genetic resources and/or traditional knowledge being used in a new invention. He said that the submission by the United States, laying out specific common objectives to be pursued in the Council, demonstrated good progress in continuing the debate even though there were no new arguments in the paper. He said that his delegation did not understand why, as stated in paragraph 3 of the document, national laws were stated to be the best way of guaranteeing access and benefit-sharing. He pointed out that his country had one of the most progressive legislations dating back to 2002, but his country was suffering from cases of bio-piracy and that, in the absence of international obligations, it would be very difficult for the problem to be addressed. His delegation did not believe that contracts could solve the problems with respect to bio-piracy as these were between private individuals and if illegal acts of bio-piracy were carried out, he did not think that such individuals would sit down to negotiate and sign a contract with those who held traditional knowledge or genetic resources.
51. With respect to paragraph 11 of IP/C/W/434 that rules outside the patent system on commercial confidentiality and competition may help, he said that while marketing of a product could be monitored and controlled by these rules, it had nothing to do with the patent system per se. The disclosure requirement under the patent system was intended to ensure that if one knew of the origin of a given resource, failure to disclose would not meet the various requirements for the granting of a patent. Further, he noted that from Part V onwards, the United States had presented various options which would prevent the granting of erroneous patents, including the existence of organized databases, information on patentability and post-grant opposition or re-examination procedures. He pointed out that Peru had databases and carried out searches and shared all possible information before a patent was granted, but that did not solve the problem. Further, in various cases of misappropriation in Peru, they had used administrative measures such as post-grant opposition or re examination of certain patent applications but found such administrative measures were burdensome. It was also very difficult for the holders of genetic resources and traditional knowledge in developing countries to go to different jurisdictions and ask for opposition because the costs were high. He said that there could be a much lower burden if there was an obligation to declare the origin. Regarding the suggestion by the United States that disclosure would not prevent misappropriation, he noted that if all applicants respected their duties and obligations, this would be the case. He said that Members were trying to improve the current system and the requirement of disclosure would help in improving what was available and guarantee a better system which would make it more difficult for those involved in acts of misappropriation and benefit the victims of such acts.
