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NON GOVERNMENTAL ORGANIZATIONS (NGOS): SYMPOSIUM
Symposium on issues confronting the world trading system
summary reports by the moderators

6 and 7 July, World Trade Organization, Geneva, Switzerland  

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Saturday, 7 July

Session II: TRIPS — Bio-technology/Bio-diversity

Moderator: Professor Thomas Cottier

 
I believe that at this work session we had a constructive and useful exchange of views with the active participation of participants from a wide spectrum of civil society, including non-governmental organizations, industry, professional associations and academics. Clearly, participants come to issues such as these from quite different perspectives and there were marked differences of view. But what I found encouraging was that, as the discussion moved towards greater specificity, ways of meeting these different concerns seemed to become more detectable.

After a general exchange of views on the issues before the work session, participants took up, in turn, the criteria for patentability in the field of biotechnology, traditional knowledge, and the relationship between the TRIPS Agreement and the Convention on Biological Diversity.

The discussion was wide-ranging and rich and these remarks will only be able to capture a few of the points made. For example there was debate about the extent to which genetic material and innovations based on it should be ideally kept in the public domain, and, if not, what were the most suitable ways in which property rights might be provided for, whether through the patent system or different types of sui generis system, existing or that might be developed. Another theme throughout our discussion was whether it would be desirable to move in the direction of additional international obligations or giving greater precision to existing ones or, on the other hand, maintaining or even enhancing the flexibility presently available.

In regard to the basic criteria for patentability, the point was made that novelty, inventive step, industrial applicability and disclosure are essential components for ensuring that the patent system serves its purpose of providing incentives for research and development without unduly stifling competition. It was also observed that the proper application of these criteria was essential for avoiding what was diversely described as either biopiracy or the grant of invalid patents. Differences in the conception of the prior art base used for examining patent applications were discussed. There was some discussion about where the threshold of patentability should most appropriately be set in the area of biotechnological inventions, for example whether isolation of genetic material found in nature and establishment of a function for that material was sufficient or whether modifications to the genetic material should be called for. It was noted that, in the World Intellectual Property Organization, work is under way aimed at giving greater precision to the basic criteria for patentability and there was some discussion as to whether such clarification was desirable at the multilateral level including whether it should be incorporated into the TRIPS Agreement. There was also a discussion on the scope of the obligation under Article 27.3(b) of the TRIPS Agreement to make microorganisms patentable, with different views expressed on the definition of the term.

In regard to sui generis protection of plant varieties as called for by the TRIPS Agreement, there appeared to be a wide view that the UPOV system was not the only way in which this obligation could be implemented. It also seemed generally accepted that WTO Members should be free to enable their farmers to save seed from their harvests for replanting. Different views were expressed on whether farmers could sell protected seed from their harvest without authorization and on the likelihood that rights in this area could be effectively enforced.

Views were expressed on the way in which the TRIPS Council's review of Article 27.3(b) should be handled and how this should relate to other issues on the TRIPS Council's agenda and possible future negotiations.

On the subject of traditional knowledge, which was also referred to as indigenous and community knowledge, some participants expressed concern that there was an imbalance in existing forms of international protection, in that modern technology was protected more effectively than traditional innovation. A range of issues were discussed in connection with traditional knowledge, including its definition, the role of prior informed consent, material transfer arrangements, benefit-sharing, customary law and other forms of sui generis systems, the relevance of existing intellectual property rights including geographical indications, and the impact of the difference between collective and individual rights.

A good deal of the discussion concerned the issue of the sharing of benefits between parties who, on the one hand, had supplied underlying genetic material or traditional knowledge and, on the other hand, parties who have used that to produce patented or commercialized innovations. I did not detect any disagreement that there should be means for benefit-sharing and that, if these were not sufficiently effectively applied, stronger ways of enforcing them should be explored. As regards the proposals that have been made for requiring patent applicants to disclose the origin of genetic material and traditional knowledge used and evidence of prior informed consent, there was an interesting discussion of the feasibility and desirability of such a requirement.

With regard to the relationship between the TRIPS Agreement and the Convention on Biological Diversity (CBD), I believe that many participants would consider that much of what I have already attempted to describe is relevant. Some comments were made on the overall relationship, with some expressing concern about actual or potential conflict, with some others expressing the view that the two conventions dealt with essentially different matters and did not overlap. The point was made that the TRIPS Agreement should be interpreted taking into account the CBD and the underlying common goals of the WTO and the CBD. Some participants urged WTO Members to agree to observer status for the CBD secretariat in the TRIPS Council.

There were a number of other points made that I would like to particularly mention. First, WTO Members, in particular developing country Members, were requested by some participants to be more open towards the submission of amicus briefs to panels and the Appellate Body. There was also some discussion about the underlying purpose of the economic system, including the WTO and the TRIPS Agreement, in promoting sustainable consumer welfare and the importance of a functioning competition law in each Member for ensuring a proper balance under the intellectual property system. Reference was made, in particular, to export cartels. There was also a reference made to concerns that have been expressed about the extent to which basic research tools in the area of biotechnology are patent protected.

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