Click here to return to ‘trade topics’

INTELLECTUAL PROPERTY:TECHNICAL COOPERATION — KEY DOCUMENTS

IV. Review of TRIPS Article 27.3(b); Relationship Between the TRIPS Agreement and the Convention on Biological Diversity; Protection of Traditional Knowledge and Folklore

Article 27.3(b) of the TRIPS Agreement deals with patentability or non-patentability of plant and animal inventions, and the protection of plant varieties. Broadly speaking, the TRIPS Agreement states that any invention can be patented, whether a product or process, in all fields of technology, provided that they are new, involve and inventive step and are capable of industrial application. According to Article 27.3(b), however, Members, may exclude from patentability (b) plants and animals other than micro-organisms, and essentially biological processes for the production of plants or animals other than non-biological and microbiological processes. It adds that Members, however, shall provide for the protection of plant varieties either by patents or by an effective sui generis system or by any combination thereof.

The TRIPS Agreement provides for Article 27.3(b) to be reviewed four years after the entry into force of the WTO Agreement.

The 2001 Doha Declaration, in paragraph 19, mandates the TRIPS Council to work on the issue of the relationship between the TRIPS Agreement and the UN Convention on Biological Diversity, and at the protection of traditional knowledge and folklore. However, Members continue to diverge on interpreting the 2001 mandate and whether the discussions on these topics are negotiations.

Current work

From 1999 to 2002, the issue of the relationship between the TRIPS Agreement and the Convention on Biological Diversity was raised in the TRIPS Council under the built-in agenda item of the review of Article 27.3(b). This issue was included in the mandate given in the Doha Ministerial Declaration, paragraphs 19 and 12(b). Thereafter, work began on two separate tracks. On the first track a specific agenda item on the relationship between the TRIPS Agreement and the Convention on Biological Diversity was included on the agenda of the regular TRIPS Council in 2002 and work is ongoing. The second track has been, since 2003, pursuant to paragraph 12(b) on outstanding implementation issues, a consultative process initiated by the WTO Director-General. This mandate was most recently reiterated at the ministerial level in the Hong Kong Ministerial Declaration and work here is also ongoing.

Key documents

Review of the Provisions of Article 27.3(b) — Illustrative List of Questions  - Prepared by the Secretariat (IP/C/W/273/Rev.1). This contains information relating to the review under Article 27.3(b) on how matters falling under this provision were being addressed under Members' national law.

Relationship between the TRIPS Agreement and the Convention on Biological Diversity — Summary of Issues Raised and Points Made (IP/C/W/368/Rev.1 and Corr.1). This reviews the relevant material presented to the TRIPS Council concerning three items of its agenda: namely the review of the provisions of Article 27.3(b); the relationship between the TRIPS Agreement and the Convention on Biological Diversity; and the protection of traditional knowledge and folklore. It lists all the relevant documentation tabled in the Council since 1999 until 1996. In addition, it discusses the issue of the patentability of genetic materials and the Convention on Biological Diversity.

Furthermore, the note addresses the issue of prior informed consent/benefit sharing, reflecting the concern that the TRIPS Agreement allows the granting of patents for inventions that use genetic material without requiring that the provisions of the Convention on Biological Diversity in relation to prior informed consent and benefit sharing are respected. It contains an overview of the two approaches, not necessarily mutually exclusive, by Members in addressing this and other concerns regarding the mutual supportiveness of the two Agreements: namely, a national-based approach with a focus on national solutions, including legislation on access and benefit sharing and contracts; and a disclosure approach advocating a "disclosure" requirement on patent applicants as a supplementary measure to national legislation and contracts, including in international forums other than the WTO.

The Protection of Traditional Knowledge and Folklore — Summary of Issues Raised and Points Made — Note by the Secretariat (IP/C/W/370/Rev.1). This concerns general issues relating to the protection of traditional knowledge; the granting of patents in respect of traditional knowledge; and consent and benefit sharing. It updates information on issues relating to the Council's work on three items of its agenda, namely, the review of the provisions of Article 27.3 (b) in the Review of the Provisions of Article 27.3(b) — Summary of Issues Raised and Points Made — Prepared by the Secretariat IP/C/W/369/Rev.1; the relationship between the TRIPS Agreement and the Convention on Biological Diversity (IP/C/W/368); and the protection of traditional knowledge and folklore (IP/C/W/370).

Issues Related to the Extension of the Protection of Geographical Indications Provided for in Article 23 of the TRIPS Agreement to Products Other than Wines and Spirits and Those Related to the Relationship between the TRIPS Agreement and the Convention on Biological Diversity (WT/GC/W/591 — TN/C/W/50 and WT/GC/W/633 — TN/C/W/61). These are reports by the Director-General on discussions concerning the relationship between the TRIPS Agreement and the Convention on Biological Diversity, pursuant to the mandate relating to outstanding implementation issues in paragraph 39 of the Hong Kong Ministerial Declaration.