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Sábado,
7 de julio
II.
ADPIC — Biotecnología/biodiversidad
Moderador:
Profesor Thomas Cottier — Instituto de Derecho Económico
Europeo e Internacional de la Universidad de Berna
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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