26. Introducing document IP/C/W/473, the representative of Norway said that he believed there was a consensus between WTO Members that the TRIPS Agreement and the CBD could and should be implemented in a mutually supportive manner. His delegation had identified no inconsistency between the two treaties, but believed that interaction between the two would be enhanced by introducing an obligation in the TRIPS Agreement to disclose the origin of genetic resources and traditional knowledge. Such a disclosure obligation would facilitate the enforcement of Members' rights over their genetic resources that were the subject of a patent application, and would make the CBD provisions on prior informed consent and benefit sharing more effective. Furthermore, he said that the disclosure obligation should go beyond the scope of the CBD; that is, it should also apply to traditional knowledge which was not directly linked to genetic resources. Such a requirement could also help the examination of the novelty and inventive step of the invention, thus helping to prevent the issuance of erroneous patents.
27. The disclosure obligation should be based on certain key principles. First, patent applicants should be obliged to disclose information on the supplier country of genetic resources and traditional knowledge - and the country of origin, if known and different from the supplier country - in their applications. If the national law of the supplier country or country of origin required consent for access to genetic resources or traditional knowledge, the disclosure obligation should also encompass a duty to state whether such consent had been given. If the country of origin was unknown, that fact should be disclosed. Second, the disclosure obligation should apply to all patent applications at the international, regional, and national levels. An identical disclosure requirement should thus be reflected in other international instruments, such as WIPO treaties or regional or bilateral agreements. Third, if the applicant was unable or refused to give information, the application should not be allowed to proceed. At the application stage, non-compliance with this obligation should be treated as a breach of a formal requirement so that the application should not be processed until the required information had been submitted.
28. Fourth, if a breach of the disclosure obligation was discovered only after the patent had been granted, it should not in itself affect the validity of the patent. Such a breach should be subject to appropriate and effective sanctions outside the patent system, for example criminal or administrative penalties. Upholding post-grant patent protection despite non-compliance with the disclosure obligation was important to avoid creating unnecessary uncertainty in the patent system. Revoking a patent as a consequence of non-compliance with the disclosure obligation would not benefit those who considered themselves to be entitled to share the benefits arising from the invention because patent revocation would negate the exclusive rights from which benefits could be derived. Yet, a patent could be revoked if the substantive patentability criteria had not been met. Fifth, in order to increase transparency, a simple notification system should be introduced under which patent offices would send all declarations of origin that they received to the CBD Clearing-House Mechanism. Furthermore, he said that such a disclosure obligation would be most appropriate in a new provision following Article 29 of the TRIPS Agreement.
29. In conclusion, he said that his delegation supported the amendment of the TRIPS Agreement to introduce an obligation to disclose the source and origin of genetic resources and traditional knowledge in patent applications. His delegation was ready to engage in text-based negotiations with a view to adopting such an amendment as soon as possible.
