The Relationship between TRIPS and the Convention on Biological Diversity (CBD) - State of play in the TRIPS Council -

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The Relationship between TRIPS and the Convention
on Biological Diversity (CBD)- State of play in
the TRIPS Council -

• WTO Symposium on Trade and Sustainable
  Development Geneva, 11 October 2005
• Wolf MEIER-EWERT
• Legal Affairs Officer
• Intellectual Property Division
• World Trade Organization

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Doha Work Programme

• Doha Ministerial Declaration WT/MIN(01)/DEC/1
• Para. 19 We instruct the TRIPS Council, in
  pursuing its work programme including under the
  review of Article 27.3(b), the review of the
  implementation of the TRIPS Agreement under
  Article 71.1 and the work foreseen pursuant to
  paragraph 12 of this Declaration, to examine,
  inter alia, the relationship between the TRIPS
  Agreement and the Convention on Biological
  Diversity, the protection of traditional
  knowledge and folklore...
• Para. 12 Outstanding implementation issues

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The Relationship between TRIPS and the CBD (1)

• Main issues under discussion
• Compatibility between TRIPS CBD
• How to implement TRIPS and CBD in a mutually
  supportive way so as to achieve shared objectives
  on access and benefit-sharing
• The Secretariats summary note IP/C/W/368 (being
  revised)

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Convention on Biological Diversity

• Article 1. Objectives
• The objectives of this Convention are the
  conservation of biological diversity, the
  sustainable use and the fair and equitable
  sharing of the benefits arising out of the
  utilization of genetic resources, including by
  appropriate access to genetic resources and by
  appropriate transfer of relevant technologies,
  taking into account
• Article 3. Principle
• States have, in accordance with the Charter of
  the United Nations and the principles of
  international law, the sovereign right to exploit
  their own resources

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The Relationship between TRIPS and the CBD (2)

• Compatibility between TRIPS CBD
• Inherent conflict
• TRIPS needs to be amended to remove such
  conflict.
• No conflict
• The two agreements can be implemented in a
  mutually supportive way through national
  measures.
• No inherent conflict, but case for international
  action
• Both can and should be implemented in a mutually
  supportive way but action required at the
  international level three distinct proposals for
  a disclosure requirement

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The Relationship between TRIPS and the CBD (3)

• National solutions, including legislation on
  access and benefit-sharing, and contracts
• Claimed advantages of a contract-based system
• Ensuring the achievement of prior informed
  consent and benefit sharing
• Providing flexibility in determining terms,
  including monetary and non-monetary benefit
  sharing
• Effective enforcement of the contract through
  criminal provisions and/or civil liability,
  choice of law and jurisdiction
• Examples of national practice given
• US National Cancer Institutes Departmental
  Therapeutics Programme
• US National Park Services

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The Relationship between TRIPS and the CBD (4)

• Three distinct proposals for a disclosure
  requirement
• Brazil, India and others
• TRIPS should be amended so that Members shall
  require patent applicants to disclose
• the source and country of origin of any
  biological resources or traditional knowledge
  used in inventions
• Evidence of prior informed consent from the
  competent authority in the country of origin
• Evidence of fair and equitable appropriate
  benefit-sharing arrangements or have followed
  national law.
• Switzerland
• the Patent Cooperation Treaty of WIPO (PCT)
  should be amended so as to allow countries the
  option of asking patent applications to disclose
  the source of genetic resources or traditional
  knowledge used in inventions.
• EC
• Having a mandatory disclosure requirement on
  national, regional and international patent
  applicants to disclose information on the country
  of origin or source of genetic resources or
  traditional knowledge used in the invention.

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The Relationship between TRIPS and the CBD (5)
Brazil, India Switzerland EC
Proposals to amend the TRIPS to require disclosure (Article 27.3.(b) or Article 29 or new article) to amend the Patent Co-operation Treaty (PCT) of WIPO to permit disclosure
Elements of disclosure the source and country of origin of GR related TK evidence of prior informed consent evidence of fair equitable benefit sharing source of GR and associated TK country of origin, but if unknown, source of GR/TK associated with GR
Optional vs. mandatory International vs. national mandatory both at the international and national level optional at the international level but can be mandatory at national level mandatory at international, regional and national level
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The Relationship between TRIPS and the CBD (6)
Brazil, India Switzerland EC
The trigger for the disclosure Any use, including incidental use GR immediate use physical access TK direct basis for invention GR direct basis Source physical access awareness TK direct basis awareness
Nature of requirement Substantive Formal Formal
Legal effects of non-compliance Delay in processing of application revocation of the patent criminal/ administrative sanctions full or partial transfer of the rights Delay in processing application any legal effects of wrongful or non disclosure allowed for under the PCT PLT, including invalidation of granted patents if the wrongful or non disclosure due to fraudulent intention Legal effects should be outside the ambit of patent law, (civil and/or administrative law)
Burden of proof Patent applicants Alleging party
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The Relationship between TRIPS and the CBD (7)

• Continuing Discussion in the TRIPS Council
• Merits of contractual approach vs. disclosure
  approach
• Recent submissions
• Amendments to Articles 27.3 and 29 of TRIPS
  proposed (Peru IP/C/W/447)
• Questions regarding the legal and technical
  implications of the different proposals
  (Switzerland IP/C/W/446)
• Further discussion of the national approach
  (United States IP/C/W/449)
• Next TRIPS Council meeting on 25-26 October 2005
• Consultations on the matter as an outstanding
  implementation issue

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www.wto.org For more information wolf.meier-ew
ert_at_wto.org Tel. [phone]