74. The representative of Switzerland said that, while his delegation was not a demandeur in the CBD issue, it saw a legitimate concern for the disclosure of source to be addressed in the patent regime, and accordingly had put forward a proposal on how this could be done at the international level in an effective and timely manner.
75. He then posed the following follow-up questions to the responses the co-sponsors had provided in document IP/C/W/470. He noted that paragraph 2 of the document stated that the fundamental conflict between the TRIPS Agreement and the CBD was the failure of the former to recognize the private intellectual property rights involved in traditional knowledge, which was owned collectively. As the TRIPS Agreement did not exclude traditional knowledge from the scope of intellectual property rights, he asked for a detailed explanation on the perceived conflict between the CBD and the TRIPS Agreement.
76. According to the definitions of "country of origin" and "source" in paragraphs 3 and 4 of the document, he asked that, for example, if a patent applicant had accessed a rubber tree in Thailand, which originated in Brazil, which country would the applicant have to declare as the country of origin: the country where the genetic resource originated immediately or the country where the genetic resource originated historically? If the historic country of origin should be declared, he said that this might result in uncertainty when it was unknown.
77. As the definition of biological resources in paragraph 5 of document IP/C/W470 encompassed not only genetic resources of plants and animals but those of human beings, he asked whether the disclosure requirements would apply to human beings as well, and if so, what the reasoning behind that would be and whether such application would create a new conflict with the provisions of the CBD, since Decision II/11 of the CBD's Conference of Parties explicitly excluded human genetic resources from the scope of application of the CBD.
78. As paragraph 6 of document IP/C/W/470 foresaw that the veracity of the document concerning prior informed consent could be challenged during opposition or revocation proceedings due to fraud or the obtaining of information from the wrong person, that the parties should seek recourse under the domestic law, and that the findings of the domestic authorities would be binding on patent offices, he sought clarification on the meanings of "parties", "domestic law" and "domestic authorities" referred to. If the "domestic authorities" meant the authority in the providing country, he asked how it could rule on the validity of a patent granted in other countries, and how this extra territorial application of the law of the country of origin in the patent-granting country could be justified. He further asked how the authorities in the providing country would find out about the patent granted in other countries.
79. Regarding the sanctions suggested in paragraph 13 of the document, he asked whether these sanctions would be imposed in combination or alternatively, and, if alternatively, who would decide which sanction would apply in a certain case and based on what grounds. He also asked whether the applicability of the sanctions would require fraudulent intention or negligence.
80. With regard to paragraph 16 on the implications for the WIPO PCT and PLT, he asked what these implications would be; how these implications would be introduced into the PCT and PLT, whether there was a need for amendment of the two treaties, and if so, what provisions would be affected. Regarding the integration of the disclosure requirements into the FAO International Treaty on Plant Genetic Resources for Food and Agriculture wherever applicable, he noted that the FAO Treaty neither applied the concept of prior informed consent nor the concept of the country of origin.
