16. The representative of Peru, introducing document IP/C/W/441, said that his delegation was committed to the discussion of the disclosure issue in the WTO, which, in its view, was the appropriate forum for this. He said that it was time for Members to stop "forum shopping" and commit themselves to finding concrete solutions to the problems of misappropriation of genetic resources and biopiracy. He reiterated that due priority should be given to the disclosure issue within the rubric of outstanding implementation issues as it had reached sufficient maturity to enable concrete negotiations to begin in order to arrive at a favourable solution for developing countries by the end of the current round. His delegation wished this issue to be included in the negotiations for the Ministerial Conference in Hong Kong, China, as the current round could not otherwise be called a development round.
17. The objective of the Peruvian submission was to present the problems faced by a developing country in the fight against biopiracy and to illustrate the efforts necessary to be made in the absence of a universal and legally-binding obligation to disclose origin of genetic resources related to a patent. As the Council was already aware, Law 28216 of 1 May 2004 had established the National Commission for the Protection of Access to Peruvian Biological Diversity and to the Collective Knowledge of the Indigenous Peoples (hereinafter the National Anti-biopiracy Commission). This Commission was chaired and coordinated by the National Institute for the Defence of Competition and Intellectual Property Protection (INDECOPI) and was made up of the representatives of the Ministry of Foreign Relations, Ministry of Foreign Trade and Tourism (MINCETUR), National Environmental Council (CONAM), Commission for the Promotion of Exports (PROMPEX), National Institute for Natural Resources (INRENA), National Institute for Agricultural Research and Extension (INIEA), International Potato Centre (CIP), National Centre for Intercultural Health (CENSI), National Commission of Andean, Amazonian and Afro-Peruvian Peoples (CONAPA), National Assembly of Governors (ANR), Peruvian Environmental Law Society (SPDA) (representing the NGOs), and the Peruvian Institute for Natural Products (IPPN) (representing business associations).
18. The National Anti-Biopiracy Commission had the task of developing actions to identify, prevent and avoid acts of biopiracy with an aim to protect the interests of the Peruvian State. Its main functions were to establish and maintain a register of biological resources and traditional knowledge; provide protection against acts of biopiracy; identify and follow up patent applications made or patents granted abroad that relate to Peruvian biological resources or collective knowledge of the indigenous peoples of Peru; make technical evaluations of the above-mentioned applications and patent grants; issue reports on the cases studied; lodge objections or institute actions for annulment concerning the above-mentioned patent applications or patent grants; establish information channels with the main intellectual property offices around the world; and draw up proposals for the defence of Peru's interests in different forums.
19. The National Anti-Biopiracy Commission had considered it desirable to share the experience acquired in this first stage of the search for potential cases of biopiracy, in as much as this may contribute to an understanding of the problems faced by a country like Peru in the fight against biopiracy. To that end, and in order to enrich the ongoing debate within the TRIPS Council concerning the disclosure requirement, the results of a search effected on the websites of the main patent offices in the world, namely, the United States, Europe and Japan, were presented in respect of six priority resources of Peruvian origin, together with a summary of the patent documents found wherein the inventions claimed related to those resources, and which might involve the use of traditional knowledge of the indigenous peoples of Peru. The products presented in the submission were: hercampuri, camu-camu, yacón, caigua, sacha inchi and chancapiedra. However, these six products were just a sample of more than fifty products of vegetal and animal origin, which the National Anti-Biopiracy Commission had already started to investigate since their medicinal properties were being analysed and tested in several countries.
20. This document was the fruit of the efforts carried out by the National Anti-Biopiracy Commission to identify possible cases of biopiracy as the subject-matter of a more rigorous and detailed analysis and of possible administrative or judicial proceedings. It was no more than the first step in the long and complex process starting with the search for potential cases of biopiracy and ending with the institution of actions against pending patent applications or patents obtained or developed from the use of a biological resource or traditional knowledge without the prior informed consent of the country of origin of the resource or of the indigenous people owning rights in the knowledge, and without providing for any type of compensation to that country or indigenous people.
21. He hoped that this document would help serve the purpose of: (a) ascertaining how a mega-diverse country makes a serious attempt to address this phenomenon through its institutions; (b) understanding to some extent the methodology and standards used in the search for such patents, thereby helping other countries or regions which might wish to initiate similar efforts; (c) gaining knowledge of the large number of inventions referring to resources of Peruvian origin that might reflect cases of biopiracy (either because such resources have been obtained illegally, or because they involve the unauthorized use, without compensation, of traditional knowledge); and (d) demonstrating that a systematic and methodical search and analysis of "problem" patents can be undertaken.
22. He stressed that no assertion was being made that all the pending patent applications or patent grants mentioned in the attached report did not deserve protection. What was presented was merely a set of pending patent applications or patent grants which had as their subject matter inventions apparently obtained or developed using biological resources of Peruvian origin and/or traditional knowledge of the indigenous peoples of Peru, for which it was necessary to check whether the rights of Peru as the country of origin of the resources and of the indigenous peoples of Peru as the owners of rights in the knowledge had been respected.
23. He said that Peru had had to make significant efforts, both in terms of human and material resources, in order to fight against biopiracy. This was why it was necessary to require the disclosure of origin in patent applications to fight biopiracy. Upon the conclusion of the Uruguay Round, countries had made a commitment to implement new standards for the promotion and protection of intellectual property rights. Since then, Peru, like many other developing countries, had made enormous efforts to fight against piracy and enforce intellectual property rights in its territory. He said that the time had come to take a concrete decision to include the disclosure issue in the negotiations on implementation issues in order to present results by July 2005 and the next Ministerial Conference in order to find a solution by the end of the Development Round. He said that Peru considered the TRIPS Council, and the WTO in general, to be the appropriate forum to discuss this issue, because of the legally-binding nature of its agreements. He shared India's view with respect to the necessity to hold dedicated consultations on the issues related to disclosure of origin.
