Congress Melbourne. Fourth Plenary Session March 29, Chairman: Mr. Christopher TOOTAL Reporter General: Mr. Bruno PHELIP

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1 Congress Melbourne Fourth Plenary Session March 29, 2001 Chairman: Mr. Christopher TOOTAL Reporter General: Mr. Bruno PHELIP Question Q159: The Need and possible Means of Implementing the Convention on Biodiversity into Patent Laws Mr. Christopher TOOTAL (United Kingdom), Deputy Secretary General, opens the Session as its Chairman. Mr. Bruno PHELIP (France), Reporter General, introduces the subject of the Question Q159. He gives a historic overview over the development of the question going back to the ratification of the Convention on biological diversity (Rio Convention) in 1992 which came into force on December 29, Mr. PHELIP refers to the Summary Report which contains the key issues of the question and reflects the views of the Groups. Mr. James SLATTERY (USA), Chairman of the Committee Q159, introduces the Resolution. It is in particular appropriate to talk about this topic in Australia, since Australia can serve as a remarkable example. There are no less than different species of plants in Australia. The Rio Convention is not an IP Convention as such but touches on various objects of IPR and IP law. Article 16 of the Convention deals with the access to biological sources. One key issue is Article 16 (5). This is one of the reasons why the United States have not ratified the Convention yet. Mr. SLATTERY (USA) also refers to Article 27 TRIPS which allows patents in every technical field. At the same time Article 27 (3) TRIPS permits certain exclusions from patentability. It can be stated that in the Working Committee there was not an enormous disagreement on the position. One of the most contentious subjects was whether the description in patents should list the geographical source. This has been opposed in the Working Committee and thus was not implemented in the Resolution. The Committee did not support such a position. Mr. TOOTAL (United Kingdom) begins with the discussion of the draft Resolution. Mr. SLATTERY (USA) reads out paragraph 1. The Secretary of the Working Committee suggests to delete the words the other which is, according to Mr. TOOTAL (UK), a drafting point. Mr. Florent GROS (France) suggests to make reference to all IP rights and not only to patents and therefore to insert the words system of intellectual property rights, especially behind the words call into question the. Mr. Carl E. EDER (Switzerland) expresses the opinion that the first sentence of paragraph 2 should to be added to paragraph 1. Mr. SLATTERY (USA) disagrees with this proposal. 1

2 Mr. PHELIP agrees with the French Group but observes that the title of the question was expressly limited to patents. Mr. David MERRYLEES (Brazil) does not support Mr. EDER s (Switzerland) suggestion but supports the French proposal. Mr. TOOTAL (UK) puts the French proposal to a vote. This proposal is carried by a large majority. It is approved to insert the words system of intellectual property rights after the words call into question the in paragraph 1. Mr. TOOTAL (UK) then asks the plenary to vote on Mr. EDER s (Switzerland) proposal. This proposal is rejected by a large majority. Mr. SLATTERY (USA) introduces paragraph 2. He points out that the second sentence refers to the terms sustainable use and sharing of benefits of the Rio Convention. Mr. Hans HAHN (South Africa) suggests to use a positive wording such as is not in conflict with as opposed to does not exclude. Mr. Lambertus VAN WEZENBEEK (The Netherlands) disagrees with this proposal. Mr. TOOTAL (UK) suggests the wording not necessarily in conflict. Mr. HAHN (South Africa) states that the existence of patent rights is never in conflict with the sustainable use of genetic resources. Mr. Knut MAGER (Germany) requests an example. Mr. TOOTAL (UK) observes that the exercise of a patent right could be in conflict with the sustainable use. Mr. Anthony FIGG (USA) supports the wording not necessarily. Otherwise the Resolution would be too subtle for the interested circles to whom this Resolution is directed. Mr. HAHN (South Africa) asks what is meant by equitable sharing. A traditional use of resources is always possible and cannot be excluded by patents. Mr. TOOTAL (UK) puts to a vote the insertion of the word necessarily. This is rejected by majority. Mr. TOOTAL (UK) then votes on the replacement of the wording does not necessarily exclude by is not in conflict with. This amendment is carried by a large majority. Finally, Mr. TOOTAL (UK) puts the whole paragraph 2 to a vote. This is carried by a large majority. Paragraph 2 is carried with the replacement of the words does not necessarily exclude by the words is not in conflict with. Mr. James SLATTERY (USA) introduces paragraph 3. The emphasis of this paragraph is the relationship between TRIPS and the Rio Convention. Since there are no comments from the audience, Mr. TOOTAL (UK) puts paragraph 3 to a vote. 2

3 This paragraph is carried by majority. Mr. SLATTERY (USA) explains paragraph 4. This paragraph addresses the implementation of the Rio Convention with regard to the TRIPS agreement. He suggests to delete the word because in the last sentence and start a new sentence with the words Patent rights cannot. Mr. TOOTAL (UK) states that this is a drafting point. Mr. MERRYLEES (Brazil) expresses the view that the last sentence of paragraph 4 is wrong because it only refers to naturally occurring biological material. In the end the words or known processes or methods used in farming should be added. Mr. David CRISP (United Kingdom) states that not only farming methods but also other methods such as pharmaceutical methods can be affected. Mr. HAHN (South Africa) states that also other methods are possible so that the words used in farming should be deleted. Mr. Alain GALLOCHAT (France) supports this proposal. Mr. TOOTAL (UK) suggests a reference to the previous sentence and to simply insert all such well-established processes after the words validly cover and to delete the rest of the sentence. Mr. MERRYLEES (Brazil) observes that one should not talk about well-established processes but rather about known processes. Mr. GALLOCHAT (France) expresses concerns about the previous sentence. One should not list examples. After a short break a new draft of the second and the third sentence is presented which reads: The concern that patent rights could restrict pre-existing practices is ill-founded. Patent rights cannot validly cover such practices or naturally occurring biological material as such in its natural state. Mr. TOOTAL (UK) puts this proposal to a vote. Paragraph 4 as a whole is also carried by majority. Mr. SLATTERY (USA) introduces paragraph 5. It deals with consequences of the absence of patent protection. There are no comments to paragraph 5. Mr. TOOTAL (UK) puts the paragraph to a vote. Mr. SLATTERY (USA) explains paragraph 6 which deals with the confirmation of formal Resolutions. This paragraph is voted on without discussion. Mr. SLATTERY (USA) turns to paragraph 7. It focuses on claiming the ownership of resources. Having received no comments from the audience Mr. TOOTAL (UK) puts the paragraph to a vote. 3

4 Mr. SLATTERY (USA) introduces paragraph 8. He explains that the Working Committee supports the approach taken by the Rio Convention. He also mentions that a proposed amendment of the French Group was to insert the words as well as their preservation in the second sentence after the words access to the genetic resources and to delete the words determining the ownership of the inventions arising from said resources. Mr. GROS (France) explains that this is a major question. In his opinion the words which are proposed to be deleted are not necessary. Mr. SLATTERY (USA) does not agree. In his opinion the words regulating access do include the preservation. He is not in favour of the proposed deletion. Mr. Jean-Pierre STENGER (France) expresses the view that questions of ownership go beyond the Rio Convention text and are therefore not necessary in the Resolution. Mr. PHELIP (France) states that an amendment is not necessary because according to paragraph 7 the general rules apply. Mr. MAGER (Germany) supports the French proposal. In his view there is no need for the addition of the word preservation. Mr. TOOTAL (UK) states that paragraph 7 has been passed. He personally supports the French proposal. In his view the word determining may lead to a conflict with paragraph 7. Mr. TOOTAL (UK) puts to a vote the deletion of the words determining the ownership of the inventions arising from said resources. This is carried by a large majority. Mr. TOOTAL (UK) then asks for a vote on the insertion of the words as well as preservation. This proposal is rejected. Finally, paragraph 8 as a whole with the approved deletion of the words determining the ownership of the inventions arising from said resources is put to a vote. It is carried by a large majority. Mrs. Maria Thereza WOLFF (Brazil) turns to paragraph 9. She mentions that Brazil has a special interest in this issue based on the experience Brazil has had. Mr. SLATTERY (USA) introduces the text of paragraph 9. Mr. TOOTAL (UK) mentions that, as a drafting point, one could say designating the body rather than define the legal status of a body. The Dutch Group suggests that the proposed text is appropriate. There can be various bodies and it also refers to existing bodies. Mr. MERRYLEES (Brazil) points out that the problem is not the designation but also that it is publicly known who has access to the genetic resources. Mr. Martin J. LUTZ (Switzerland), President of Honour, suggests inserting the words and the genetic resources subject to such a regime after the words access to genetic resources. Mr. SLATTERY (USA) states that this may be a problematic proposal, because it suggests that the government can decide which resources are meant. This would go too far. Prof. Joseph STRAUS (Germany), Chairman of the Programme Committee, observes that both parts should be taken into account and that paragraph 9 should refer to the designation of the body and the definition of its legal status. 4

5 This statement is supported by Mr. SLATTERY (USA). Mr. TOOTAL (UK) asks to vote on the amendment suggested by Prof. STRAUS (Germany). This is carried by a great majority. He then puts to a vote Mr. LUTZ (Switzerland) proposal. This proposal is rejected by majority. Mr. EDER (Switzerland) observes that the words patents derived from such resources are not clear and should be reworded. Mr. TOOTAL (UK) defers this to the Drafting Committee. He then puts paragraph 9 as a whole to the vote. Paragraph 9 is carried by majority. With regard to paragraph 10 Mr. SLATTERY (USA) explains that it follows up on paragraph 8 concerning contracts. It is not the intention of this paragraph to suggest to AIPPI to conduct studies themselves. Mr. GALLOCHAT (France) states that contracts as a private matter should be left to the respective parties. AIPPI should not take a position on the unknown in this respect. The Dutch Group expresses concerns that maximum certainty is desirable and that standardised terms should insure the acceptance by the member states and legal certainty. Mr. TOOTAL (UK) puts paragraph 10 to a vote. It is approved by majority. The Drafting Committee will make clear that AIPPI only supports the conduct of studies. Mr. TOOTAL (UK) then puts the entire Resolution to a vote. This is carried almost unanimously with one vote against from the US Group. The US Group explains their position. It goes back to paragraph 2. The position expressed in paragraph 2 might eventually lead to compulsory licenses. There is a certain ambiguity in the statement. Mr. TOOTAL (UK) thanks the Working Committee and the audience for their contributions. He closes the Session. Minutes: Jochen BÜHLING (Germany) 5