52. The representative of New Zealand welcomed the deepening of the debate on this aspect of the work of the TRIPS Council. Her delegation had not yet made definitive decisions about disclosure in the national context, but had previously stated that disclosure in some form might assist or support CBD objectives. She agreed that there might be potential for measures such as disclosure of the source of genetic resources and associated traditional knowledge to further the objectives in the TRIPS Agreement as enunciated in Articles 7, 8 and 27. Additionally, such disclosure might bolster the TRIPS Agreement by providing more information to enable better decisions on the existing criteria for patentability.
53. She said that the two recently submitted papers acknowledged the primary role of national systems in ensuring prior informed consent in relation to access and benefit-sharing. The answers to problems of non-compliance with prior informed consent and benefit sharing were not to be found in the intellectual property system, but should be addressed primarily through national ABS systems, which had been comprehensively implemented only in a few countries. Without national systems being in place, the intellectual property system could not even play a supportive role. Any suggestion that an applicant should provide evidence of benefit-sharing through the intellectual property system where there had been no such requirement in the country of origin of the genetic resources, as suggested in paragraph 11 of document IP/C/W/442, went too far.
54. There was also a need to be realistic about the likely compensatory outcomes from this kind of disclosure that had been proposed, given that the majority of genetic-resource based research was non-commercial and even where bio-discovery was undertaken with commercial objectives in mind, the hit rate was very low. Her delegation was a little concerned that both sides seem to over-estimate the likely "green gold" at the end of the rainbow, and the potential benefits from patenting of inventions based on genetic resources. She was interested in following up on a Canadian proposal made at the last meeting and hearing further from proponents about how the disclosure system would work in practice, and how it might have been applied in some frequently cited examples of misappropriation.
