11. The representative of the Plurinational State of Bolivia said that, at the TRIPS Council's meeting of 27 June 2010, a number of Members had asked questions about the Bolivian communication (document IP/C/W/545), which proposed to examine Article 27.3(b) with a view to prohibiting the patentability of all life forms. Responding to some Members' concerns about the scope of the Council's mandate to review Article 27.3(b), he said that the mandate arose out of Article 27.3(b) itself, which provided that its provisions shall be reviewed four years after the date of entry into force of the WTO Agreement. To date, the review had not been conducted. He noted that the mandate did not prejudge the outcome, and that it was appropriate for the Council to review trends in patenting in the light of Article 27.3(b), new developments, their economic, social and cultural implications and impact, and to take the necessary action to resolve problems. The possibility of an amendment could not be ruled out, if the Council deemed it appropriate as a result of this process.
12. He said that, in accordance with paragraph 19 of the Doha Ministerial Declaration, in carrying out such a review, the Council should examine, inter alia, the relationship between the TRIPS Agreement and CBD, the protection of traditional knowledge and folklore, and other relevant new developments raised by Members. These elements were the subject of preliminary analysis contained in document IP/C/W/545 and in other earlier documents and statements. At the Council's meeting of June 2010, some Members had affirmed that it was not life forms that were being patented but biotechnological inventions which met the requirements for patentability. However, in many countries, discoveries of elements that already existed in nature were being patented. In particular, in considering an element isolated from its natural environment as "novel" and therefore patentable, various legal systems authorized the patenting of life forms or components thereof which, in reality, had been discovered in nature or the human body, for example genes that were simply isolated and for which a function had been discovered, and not invented. He said that an element found in nature, even when it had been isolated or separated from its habitat, could not be considered an invention and was therefore not patentable. From a conceptual standpoint, the relevant criteria for defining exclusion were social values, public ethics and morality, development criteria and public policies, rather than technical criteria. He therefore stressed that, in undertaking this review of Article 27.3(b), these criteria, together with the world vision of indigenous peoples and other peoples and communities, should be the most important consideration. Nevertheless, this did not at all mean sidestepping the technical debate on the quality of patents granted in the field of biotechnology, which raised serious questions about the fulfilment of patentability criteria.
13. Responding to the concern about the negative impact that the Bolivian proposal might have on innovation, i.e. there could be no innovation without patents and the major challenges facing humankind, including those in the areas of agriculture and health, could not be resolved without innovation, he said that the global crises facing humankind and the planet were a source of great concern to Bolivia. A system that considered life as a mere commodity and promoted the privatization of nature was part of the problem, not the solution to the major challenges facing humankind. The concern being expressed these days by various communities, including the scientific community in developing and developed countries, was that the patenting of life limited scientific research and reduced innovation, because the multiple and extensive demands made it possible to control entire areas of technological research and block continued innovation. The biodiversity which was being appropriated by transnational corporations as "inventions" had been developed by nature for centuries and preserved and developed by indigenous peoples, peasant farmers and communities in many Member states without the incentive of intellectual property. This model had worked and there were other models which could also work without the monopolistic effects of the patent system. If patenting of life was permitted, the major decisions of fundamental importance to the future of humankind would be taken by a small group of actors who had control over life forms, such as transnational corporations and certain institutions, so that only those innovations and technologies would be promoted that strengthened their monopolies and boosted their profits. Members could not hope to save humanity and the planet with solutions that had profit as their sole objective. What was required was to protect life from commercialization and privatization and to create spaces for collective deliberation, exchange and cooperation for the common good.
14. He then referred to a possible case of biopiracy, another possible case of commercialization and privatization of life involving a sorghum gene collected in Bolivia, as a concrete illustration of his delegation's concern. He said that Kansas State University in the United States had submitted an international patent application for a gene tolerant of certain herbicides taken from a variety of sorghum collected in Bolivia in 2006, the valuable characteristic of which had been discovered by a Bolivian public research centre in 2000, and not by the university in question. The international patent application had been published under the Patent Cooperation Treaty on 24 July 2008 and the US application had been made public on 6 May 2010. In the international application, the university concerned indicated that it would seek to obtain patents worldwide. A press release of 6 February 2008 from the university stated that the transnational corporation DuPont had already acquired an exclusive licence and was planning to sell varieties of sorghum containing the valuable gene. This would mean that the characteristic discovered in the variety of sorghum collected in Bolivia was about to be made the subject of private appropriation by a university and a transnational corporation, in clear contravention of the Bolivian Constitution and laws which expressly prohibited the private appropriation of any living material and parts thereof. This apparent new case of biopiracy was of great illustrative value for the work of the Council. He said that given the negligible effect that national laws had at the international level in resolving the problem of biopiracy, the solution lay in the international prohibition of the patenting of life forms. Also clearly exposed were the poor standards of patentability applied in developed countries which claimed that they were only patenting life forms that were "biotechnological inventions". In many cases, these were in fact patents on existing elements discovered in nature.
15. He said that transnational corporations offered patented seeds which were tolerant to the massive application of the herbicides they were selling, or other solutions the sole objective of which was to make profits for a few and not to serve the common good. The United Nations Special Rapporteur on the Right to Food, in his 2009 report to the General Assembly, warned that "the expansion of intellectual property rights can constitute an obstacle to the adoption of policies that encourage the maintenance of agrobiodiversity and reliance on farmers' varieties" because "intellectual property rights reward and encourage standardization and homogeneity, when what should be rewarded is agrobiodiversity" and "in addition ... can constitute a direct impediment to innovation by farmers". The Government of Bolivia was currently analysing the information available in the sorghum case with a view to taking the necessary measures. He reiterated Bolivia's commitment to the rights of indigenous peoples, as set out in the United Nations Declaration of September 2007, its defence of life against private appropriation and its defence of its genetic resources and traditional knowledge. He said that Bolivia's ancestral cultures were closely associated with harmony, reciprocity and complementarity with nature and respect for life. Some elements of Article 27.3(b) were offensive and contrary to this culture of life, particularly those that promoted the commercialization and privatization of life. Therefore, the best contribution that the Council could make to serve this purpose was to prohibit all kinds of patenting of life forms, which would be an outstanding outcome for this Doha Development Round. In conclusion, he reinforced the importance of continuing to deepen the discussion on the non-patentability of life forms so that further progress could be made towards the necessary amendments to Article 27.3(b) of the TRIPS Agreement which had created a series of problems for Members, particularly developing country Members.
