73. The representative of Switzerland said that the declaration of the source of genetic resources and traditional knowledge in patent applications as proposed by his delegation, in the context of the work of WIPO's PCT reform group, would allow States that were party to a contract on access and benefit-sharing to verify whether the other contracting party was complying with its obligations arising under that contract. This would not only facilitate and support the enforcement of contractual obligations but would also allow verification of whether prior informed consent of the country providing the genetic resources had been obtained, and whether provision had been made for fair and equitable benefit-sharing. The Swiss proposal was intended not only to increase transparency in the context of access and benefit-sharing but also to build trust among the various actors involved. He pointed out that, should patent applicants additionally be required to provide evidence of prior informed consent and fair and equitable benefit-sharing in patent applications, they would have to submit double and triple the amount of information that would bring little advantage to the contracting parties of the contract regulating access and benefit-sharing. Furthermore, a number of practical and legal problems would arise, which he said were addressed in greater detail in paragraphs 13-19 of his delegation's submission, IP/C/W/400/Rev.1
74. Commenting on IP/C/W/429/Rev.1, he said that it was the view of his delegation that it should be left up to the national legislator to decide whether such a requirement would be introduced in the national patent legislation or not. That optional nature of the disclosure requirement had been chosen because of the great divergence in the views on transparency measures, and because the discussions on disclosure requirements at the international level have not brought any final results. Such a requirement would allow the national governments and the international community to gain experience, without prejudice to further international efforts. He pointed out that his delegation was proposing a formal disclosure requirement and that the current provisions of the TRIPS Agreement were flexible enough to allow its introduction. He noted that paragraphs 12 and 13 of document IP/C/W/429/Rev.1 addressed the possible legal effects of failure to disclose or wrongful disclosure of the source in patent applications discovered either prior to or after the grant of a patent. In the view of his delegation, the sanctions currently allowed for under the PCT and the PLT could apply to such cases. With regard to the sanctions called for in paragraph 13 of document IP/C/W/429/Rev.1, his delegation held the view that those legal effects were already possible under current patent legislation. He referred Members to paragraphs 24 to 26 of document IP/C/W/423 for a more detailed analysis of the possible sanctions for failure to disclose or wrongful disclosure of the source advocated by his delegation.
75. Commenting on IP/C/W/434, he said that the issues of access and benefit-sharing could not be fully resolved through a contract-based approach alone. This applied in particular to cases where no contract on access and benefit-sharing was concluded and to cases of trans-boundary use of genetic resources and traditional knowledge. Accordingly, contracts alone could not deter those with intent to act in bad faith. He pointed out further that Article 15, in paragraphs 4 and 7, of the CBD required access and benefit-sharing to be on mutually agreed terms, which would generally be laid down in contracts. Thus his delegation did not challenge the contract-based approach. However, measures increasing transparency, in particular the disclosure of source as Switzerland proposed, could further facilitate the operation of the system. Requiring the disclosure of source in patent applications was only one measure among a large number of other mostly non-intellectual property measures which could assist access and benefit-sharing. While disclosing the source in patent applications would not be sufficient to resolve all issues, in combination with those other measures it presented a simple and effective measure to help access and benefit-sharing. His delegation shared the view of the United States that post-grant opposition or re-examination of granted patents had been used in cases such as the neem tree and clearly showed that the patent system worked well. In such cases, disclosing the source of genetic resources or traditional knowledge would, however, have simplified the task of those intending to oppose such patents or to request their re-examination.
76. In order to further improve the effectiveness and facilitate the operation of the disclosure requirement, his delegation proposed that patent offices transmit the information disclosed to the national authority of the country competent to receive such information. The list of competent national authorities could be maintained by WIPO, in close cooperation with the CBD. By making the list available on the internet, patent offices would have easy access to it and could, without much administrative burden or cost, provide the competent national authority with the information. He said that, contrary to what was stated in IP/C/W/434, the proposal was not made because his delegation recognized the shortcomings of the disclosure of the source requirement. He said that his delegation agreed with the United States that it would be beneficial to the Council's discussion on the issues mentioned in paragraph 19 of the Doha Declaration, if, by examining national experiences with respect to access and benefit-sharing systems currently in place, the Council could gain thorough understanding of the problems and shortcomings that proponents faced in practice.
