Documents

Disclosure Requirements: Ensuring mutual supportiveness between the WTO TRIPS Agreement and the CBD, November 2005
By IUCN, ICTSD, CIEL, IDDRI, QUNO

The TRIPS Agreement and Convention on Biological Diversity, February 2006.
By the World Trade Organization Secretariat.

Disclosure of Origin- towards equity or another exercise in futility? March 2006.
Presentation by Mr. Brendan Tobin, UNU-IAS

Summary

Henrique Choer Moraes of the Ministry of External Relations, Brazil, outlined the proposal jointly submitted by a group of developing countries, including India, Peru and others, to the WTO Council for Trade-related Aspects of Intellectual Property Rights (TRIPS). The proposal would amend the TRIPS Agreement to require patent applicants to disclose the origin of the genetic resources and associated traditional knowledge (TK) used in the invention, and provide evidence of prior informed consent (PIC) and benefit-sharing in their application. Such a disclosure requirement would serve to make the TRIPS Agreement compatible with the CBD by ensuring that the patent system supports the Convention's objectives. It would allow provider countries to keep track of their resources used in inventions in other countries and address the international dimension of the problem of illegal access to and use of genetic resources.

Jeff Fritz from Dupont speaking on behalf of the International Chamber of Commerce (ICC) suggested that discussions in many forums had already led to significant obstacles in accessing genetic resources and stimulating innovation. He cited the pharmaceutical industry as an example which has been moving increasingly away from genetic resources towards synthetic molecules, while the agricultural seed sector tends to derive its resources from privately held germplasm banks and other international collections. Also, lack of national implementation of the CBD and the Bonn Guidelines has made it difficult for companies to comply with international norms. Additional disclosure requirements could provide further opportunities for patents to be challenged by governments, NGOs and particularly commercial competitors, thereby introducing uncertainty into the current IP system. He warned that this uncertainty would further dampen the willingness of companies to access genetic resources.

Martin Girsberger of the Swiss Federal Institute for Intellectual Property introduced the Swiss proposal on disclosure submitted to the World Intellectual Property Organisation (WIPO). Switzerland has proposed an amendment to WIPO's Patent Cooperation Treaty that would enable countries to require patent applicants to declare the source of the genetic resources and TK in patent applications. Since such an approach would be voluntary and only include the disclosure of source (and not PIC and benefit-sharing), the proposal would allow for agreement to be reached more quickly at the international level. At the same time, some countries are already implementing related provisions in their legislation which could serve to gain experiences without prejudice to further international efforts to strengthen disclosure requirements.

Assessing the advantages of a disclosure requirement, Brendan Tobin from the United Nations University – Institute for Advanced Studies suggested that policing the use of genetic resources and TK was beyond the capacity of developing countries and communities. Disclosure would help to ensure transparency while shifting the burden of proof regarding rights to use genetic resources and TK from the provider to the user. To facilitate disclosure, a certificate could be used at various stages, including patents applications, products approvals and for publications. It could provide a simplified mechanism to demonstrate the origin of and tracking resources. In the absence of movement on this issue at the WTO or WIPO, Parties might want to consider using the CBD to strengthen multilateral backing of the proposal.

Most participants felt that political momentum was building in support of disclosure requirements – both in user and provider countries – although difference still remain on the scope that such a requirement should have (e.g. whether it should be voluntary or mandatory, or whether it should cover disclosure of origin, PIC and/or benefit-sharing). While some stressed that WTO Members are already free to implement disclosure requirements at the national level (and are already doing so), a few felt that the compatibility of these requirements with TRIPS provisions remains uncertain. Asked what advice they would give to the CBD expert group that will be appointed to explore and elaborate on the use of certificates of origin/source/legal provenance in the context of the international ABS regime, the speakers called for extensive involvement of all relevant stakeholder groups to provide their input into the discussions; an examination of commercial documents other than patents that could be used to facilitate disclosure; an assessment on how to most effectively integrate the CBD provisions in the IP system while ensuring that the resulting system was practical and workable.