the relationship between trips and the convention on biological diversity (cbd) - state of play in...
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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-EWERTLegal Affairs OfficerIntellectual Property DivisionWorld 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 discussionCompatibility between TRIPS & CBDHow to implement TRIPS and CBD in a
mutually supportive way so as to achieve shared objectives on access and benefit-sharing
The Secretariat’s 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 Institute’s 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