70. The representative of Peru said that his country faced similar problems as described by Brazil with respect to genetic resources from the Amazon region, with regard to some products on which the National Anti-Biopiracy Commission was currently carrying out research. He said that document IP/C/W/442 closed the circle that had started with the presentation of the checklist and the development of each of the issues. He believed that IP/C/W/443 contained the majority of the concerns that Peru and other developing countries had with regard to the contract-based approach. He was concerned that the contractual approach was still being considered as a possible solution to the problems faced by developing countries. He thanked all those who had made comments on the Peruvian paper, especially the delegations of Canada, New Zealand and Australia, who had promoted the presentation of real life cases.
71. Responding to some of the comments made by the delegation of the United States, he said that it had not been said that the presentation of a patent application constituted proof of misappropriation or biopiracy. He clarified that the six examples that had been included in the paper were illustrative. The National Anti-Biopiracy Commission had identified approximately fifty products but this did not mean that misappropriation or biopiracy had in fact taken place in all these patent applications. This was the first part of the work to be carried out by the Commission where all the possible applications containing Peruvian genetic resources would be identified. In a second phase, they would identify the applications where the Peruvian National Authorities considered that there could have been misappropriation in order to present the case to revoke such patent applications. The United States delegation had mentioned the case of Maca and Peru had avoided presenting it, since some patents granted were already in the phase of revocation. A similar process might be carried out with a product known as Chancapiedra, which had cosmetic uses.
72. He said that the delegations of the United States and Japan had stated that the disclosure issue should be discussed at the WIPO. The WIPO had addressed this issue in the Committees dealing with patents and in the IGC. The IGC's mandate concluded this year with the last meeting to be held in July 2005 and there was no clarity on the continuation of its work. The IGC had no negotiating mandate and could not address the problems faced by the TRIPS Council on the need to include a universal, legally binding requirement to disclose origin. While the patent committees dealt with this issue, they had a limited scope. For example, Peru was not a party to any of the patent treaties of the WIPO. Therefore, the TRIPS Council was the appropriate forum to deal with the disclosure issue. He hoped that the decision to carry out dedicated informal consultations would allow the work with to be continued the objective of reaching a consensus, either in July or by the Ministerial Conference in Hong Kong, China on a work plan which would allow a satisfactory solution by the end of the round.
73. He said that even though Peru had an obligation to disclose origin in its national legislation, it was very difficult to implement since the Peruvian patent system granted only five or ten patents per year and could not be compared to those of the United States, Europe or Japan. Consequently, a country like Peru had to search, not in its own patent system, where there was an obligation to disclose origin, but in those countries where the majority of patent applications were presented and where the large corporations could carry out research and development using foreign genetic resources. He repeated that this did not mean that all the genetic resources originating in Peru were misappropriated, or that all the patent applications involved biopiracy. He explained that if the obligation to disclose origin in the patent application was properly implemented with an universal, legally binding requirement, it would be much easier for countries like Peru to search for specific cases, without having to go through expensive legal procedures, unlike the current situation with respect to patents involving the use of Maca where, were it not for international support and NGOs, the Peruvian government would have found it impossible to present the cases on revocation of patents in foreign countries. He concluded by saying that the development round had to take into account the fact that developing countries were burdened with all these costs. While the obligation to disclose origin would probably imply a cost, it was smaller than the costs that countries like Peru had had to face in creating the National Anti-Biopiracy Commission, carrying out searches, etc. He said that the questions posed had allowed him to further clarify how the National Anti-Biopiracy worked, the problems it faced and the difficulties that might be avoided with the inclusion of a mandatory requirement of the disclosure of origin through an amendment of the TRIPS Agreement.
