74. The representative of Switzerland recalled several oral interventions of his delegation, and the three communications to the TRIPS Council contained in documents IP/C/W/400, IP/C/W/423 and IP/C/W/433 on the proposal that had been submitted to the Working Group on the reform of the Patent Cooperation Treaty of the WIPO. These proposals would enable the contracting parties of the PCT to require patent applicants to disclose the source of genetic resources and traditional knowledge in patent applications.
75. He supported the proposal of Canada that the discussion under paragraph 19 should be aimed at a more fact-based approach and that the discussions could benefit from national experiences with respect to access and benefit-sharing systems. The Council had gained a better understanding of the challenges and shortcomings that might occur in practice from the paper and the explanations submitted by the Peruvian delegation. His delegation was of the view that the process should be Member-driven and encouraged other Members to come up with such information.
76. With regard to the communications IP/C/W/429/Rev.1 and IP/C/W/438, which had been submitted by Brazil, India and various other delegations, his delegation had four questions. First, how did these delegations define the term "country of origin"? Second, what was the reason that these communications only referred to the country of origin? He highlighted that Article 15 of the CBD in the context of access and benefit-sharing did not refer to the country of origin, but referred to the contracting party providing genetic resources. In the view of his delegation the wording "country of origin" excluded the International Treaty of FAO, since it was not based on a bilateral, country-by-country approach but established a multilateral system of access and benefit-sharing. The same problem applied to the proposals that had been submitted by the EC and the US. The third question was how did these delegations define the terms "biopiracy" and "misappropriation"? He said that having a clear understanding of these terms and the underlying concepts was a crucial prerequisite for the discussions in the TRIPS Council. The fourth question was how would the proposals of these delegations be reflected in WIPO's PCT and PLT?
77. Responding to the United States' submission (IP/C/W/434), he said that with respect to prior informed consent and benefit-sharing, his delegation had stated in its communication of June 2003 (IP/C/W/400/Rev.1), that the task of verifying whether the national system of prior informed consent had been adhered to and if the benefits had been shared could best be carried out by the parties to the contracts on access and benefit-sharing. He proposed to explicitly enable the national patent legislation to require the declaration of the source of genetic resources and genetic knowledge and to establish a list of government agencies which could be informed by the office receiving a patent application containing such a declaration. These two measures would allow the parties to the contract on access and benefit-sharing to verify whether the other contracting party had complied with its obligations arising under that contract and would simplify the enforcement of these contractual obligations.
78. He asked how a purely national approach would address problems arising from transboundary access and benefit-sharing in cases where genetic resources and traditional knowledge were being used outside the scope of national solutions. Further it was not clear how a purely contractual approach would address cases where no contract on access and benefit-sharing had been concluded between the provider and the user of genetic resources and traditional knowledge. He was also interested in receiving further information from the European Communities and its member States on the specific PCT and PLT provisions which would need to be changed in implementing their proposal.
