TRIPS Council Considering Genetic Resource Disclosure
During discussions on the relationship between the TRIPS Agreement and the Convention on Biological Diversity (CBD) mandated by paragraph 19 of the Doha Declaration, India introduced a paper arguing that genetic resources and associated traditional knowledge are often erroneously dealt under the current intellectual property regime as if they formed part of the public domain, open to appropriation by anybody without any obligation to ask for permission and pay back the provider. Three types of disclosure requirements have been suggested, namely
- disclosure of source and country of origin of the genetic materials and associated traditional knowledge used in developing the invention claimed in the patent application;
- disclosure of the evidence of prior informed consent and
- disclosure of the evidence of benefit sharing agreement.
The Indian paper was reportedly supported by Brazil, Peru, Ecuador, Pakistan, Sri Lanka, China, Cuba, Bolivia, Colombia, Thailand, Turkey and Indonesia. The US, on the otherhand, "continued to resist discussions on a disclosure requirement and expressed similar reservations as Japan and Korea, arguing that a disclosure requirement would not solve the problems of ensuring benefit sharing and avoiding erroneous patenting. "
In response to requests from developed countries for examples of specific cases of biopiracy, Peru presented a short paper documenting the story of Camu Camu (Myrciaria dubia), a Peruvian fruit which has been patented in Japan. The document, which is similar to a paper presented by them in June (IP/C/W/447), pointed out that national rules were unhelpful if the company that used the genetic resources made a patent application in another country. If such an application failed to disclose the origin of the genetic resource, mention the fact that the resource had already been in use in another part of the world, or provide evidence of an access and benefit-sharing agreement with the community of origin of the resource, then a bad patent could be issued.