WTO Releases report on consultations on patents and biodiversity
WTO News – 9 June 2008

GENEVA, SWITZERLAND: Director-General Pascal Lamy has issued a report on his consultations on patents, biodiversity and disclosure. This debate was originally wide-ranging. It now focuses on how the TRIPS Agreement relates to the Convention on Biological Diversity (CBD), and particularly whether the agreement should be amended to require “disclosure” (an important issue for holders of TK). The ideas put forward include:

  • Disclosure as a TRIPS obligation: A group represented by Brazil and India and including Bolivia, Colombia, Cuba, Dominican Republic, Ecuador, Peru, Thailand, and supported by the African group and some other developing countries, wants to amend the TRIPS Agreement so that patent applicants are required to disclose the country of origin of genetic resources and traditional knowledge used in the inventions, evidence that they received “prior informed consent” (a term used in the CBD), and evidence of “fair and equitable” benefit sharing.
  • Disclosure through the World Intellectual Property Organization (WIPO): Switzerland has proposed an amendment to the regulations of the WIPO’s Patent Cooperation Treaty (and, by reference, WIPO’s Patent Law Treaty) so that domestic laws may ask inventors to disclose the source of genetic resources and traditional knowledge when they apply for patents. Failure to meet the requirement could hold up a patent being granted or, when done with fraudulent intent, could entail a granted patent being invalidated.
  • Disclosure, but outside patent law: The EU’s position includes a proposal to examine a requirement that all patent applicants disclose the source or origin of genetic material, with legal consequences of not meeting this requirement lying outside the scope of patent law.
  • Use of national legislation, including contracts rather than a disclosure obligation: The United States has argued that the CBD’s objectives on access to genetic resources, and on benefit sharing, could best be achieved through national legislation and contractual arrangements based on the legislation, which could include commitments on disclosing of any commercial application of genetic resources or traditional knowledge.

This is an “implementation” issue in the Doha Development Agenda (the Doha Declaration’s paragraphs 12 and 18). The latest mandate is paragraph 39 of the 2005 Hong Kong Ministerial Declaration. Consultations are chaired by Deputy Director-General Rufus Yerxa on behalf of Director-General Pascal Lamy.

Read the WTO News Release…
Download the DG’s report on the consultations…