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Samedi
7 juillet
II:
ADPIC — Biotechnologie/Biodiversité
Modérateur:
Professor Thomas Cottier — Institut de droit économique européen
et international, Université de Berne
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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