Ambassador Alfredo Suescum (Panama)

Brésil

4; 5; 6 REVIEW OF THE PROVISIONS OF ARTICLE 27.3(B); RELATIONSHIP BETWEEN THE TRIPS AGREEMENT AND THE CONVENTION ON BIOLOGICAL DIVERSITY; PROTECTION OF TRADITIONAL KNOWLEDGE AND FOLKLORE

43. Brazil has a well-known position regarding the promotion of mutual support between TRIPS and the CBD. In our view, the best way to ensure the proper use of genetic resources and associated traditional knowledge is through an amendment to the TRIPS Agreement as set out in document TN/C/W/59. The amendment will introduce a mandatory requirement for the disclosure of the origin of these resources in patent applications. This would create a multilateral and efficient mechanism to combat misappropriation, a concern that remains, especially in developing countries. 44. The issue this amendment intends to address remains very much alive. A recent academic study shows that patent applications related to "bauhinia." were filed in several countries. Bauhinia is a plant found in Brazil and other countries in the Amazon region. Its tea is used by indigenous and local communities to treat diabetes. This example with other, older cases, such as that of turmeric in India and the Phyllomedusa bicolor toad, whose venom has analgesic effects. 45. A mandatory multilateral disclosure requirement would enable a clear assessment of whether those patents related to the bauhinia complied with the legal requirements in the country of origin. It would also contribute to enhancing transparency about the utilization of genetic resources and associated traditional knowledge, dispelling questions regarding the misappropriation of valuable national resources. 46. The disclosure requirement as provided in document TN/C/W/59 will not be burdensome for industrial property offices, since they will be simple "check points" in the new system. To illustrate it, the Brazilian Biodiversity Law, which entered into force in 2016, attributes to the Council for Management of Genetic Heritage the task of authorizing access to genetic resources and associated traditional knowledge. The Council is composed of representatives from the government, industry, academia, indigenous peoples and local communities. 47. The National Institute of Industrial Property merely requires from patent applicants, when applicable, the document from the Council that authorized access to genetic resources and associated traditional knowledge. This allows INPI to focus on its core activities of substantive examination of patent applications. It creates no obligation for the patent examiner to conduct a thorough review of the document provided by the applicant. 48. A mandatory disclosure requirement will meet the objectives of the CBD and the intellectual property system by providing appropriate incentives and rewards for traditional knowledge holders, in recognition of their contribution to society. For these reasons, Brazil joined China, Colombia, Ecuador, India, Indonesia, Peru, Thailand, the ACP Group, and the African Group in supporting the amendment of the TRIPS Agreement with the introduction of a mandatory requirement for the disclosure of origin of genetic resources and traditional knowledge in patent applications.

TN/C/W/59

The Council took note of the statements made and agreed to revert to the matters at its next meeting.

31. The Chairman recalled that, at the Council's meeting in November 2016, Members had exchanged views under these agenda items. The discussions had covered substantive issues, such as the suggested inclusion of a mandatory disclosure requirement in TRIPS, as well as the patentability of life forms. Discussions had also covered two pending procedural proposals – whether the CBD Secretariat should be invited to debrief the Council on the Nagoya Protocol, and whether the WTO Secretariat should update the three factual notes that had been prepared and last updated ten years ago.

32. Since Members had remained divided both on the substantive and procedural issues, no progress could, however, be made. There had also been no unanimous support for a proposal made by some delegations that the CBD Secretariat be asked to debrief the Council when it was meeting in informal mode.

33. He recalled that there had been no more responses or updates to the Illustrative List of Questions on Article 27.3(b), and no notifications or reports of domestic mechanisms to protect genetic resources and traditional knowledge. Despite the importance attached to the Article 27.3(b) review, which had been on the Council's agenda since 1998, the last response or update on the questions had been submitted in 2003, some 14 years ago, and material had been received from fewer than one in six Members. He therefore reminded delegations that the Article 27.3(b) review was an integral part of the TRIPS Agreement. The information provided to the Council clearly did not cover the important developments that many WTO Members had seen in this area over the last decade. Regarding the CBD Secretariat briefing and the updating of the Secretariat notes, there was no substantive signs of evolution towards an outcome.

34. The representatives of Brazil; the Plurinational State of Bolivia; Bangladesh on behalf of the LDC Group; India, Ecuador; Egypt; Indonesia; China; Nigeria on behalf of the African Group; Australia; the United States; Switzerland; the Republic of Korea; Japan; Canada and the European Union and the Chairman took the floor.

35. The Council took note of the statements made and agreed to revert to the matters at its next meeting.

IP/C/M/85, IP/C/M/85/Add.1