WORLD TRADE
ORGANIZATIONIP/C/W/368
8 August 2002
(02-4363)
Council for Trade-Related Aspects
of Intellectual Property Rights
THE RELATIONSHIP BETWEEN THE TRIPS AGREEMENT AND
THE CONVENTION ON BIOLOGICAL DIVERSITY
SUMMARY OF ISSUES RAISED AND POINTS MADE
Note by the Secretariat
1. This note summarizes the issues raised and the points made by delegations in the Council for
TRIPS in regard to the relationship between the TRIPS Agreement and the Convention on Biological
Diversity.  It has been prepared in response to the request made during the TRIPS Council meeting of
5-7 March 20021 that the Secretariat prepare short papers on, inter alia , the agenda items related to
review of the provisions of Article 27.3(b), the relationship between the TRIPS Agreement and the
Convention on Biological Diversity (CBD) and the protection of traditional knowledge and folklore,
summarizing the relevant material presented to th e TRIPS Council, whether in written or oral form,
and listing all the relevant documentation.
2. Up until this year, the discussion in the TRIPS Council on these three matters has taken place
in the context of the review of the provisions of  Article 27.3(b) and, to a much lesser extent, in the
context of the review of Article 71.1.  This note seeks to summarize those parts of this work which
relate more specifically to the relationship between the TRIPS Agreement and the CBD.  To avoid
undue duplication, cross-references to the two other notes have been made in certain places.  Inaccordance with the mandate given to the Secretariat, the note only contains issues raised and points
made by delegations in the Council for TRIPS and does not cover the documentation of the
Committee on Trade and Environment and of the General Council, unless the relevant paper has also
been circulated as a Council for TRIPS document.
3. It is emphasized that this note is an attempt to summarize the work done so far.  By its very
nature, it cannot include a full reflection of all the interventions made and documents submitted.  It is
structured around the issues raised rather than the positions of individual Members.  Therefore any
reader wishing to appreciate fully the position of a particular Member should consult the statements
made and any papers submitted by that Member.  As requested, such documentation is listed in the
Annex to this note.  It is also referred to in the footnotes.
4. This note is divided into three major sections.  The first concerns general views on the
relationship between the TRIPS Agreement and the CBD, the second concerns patentability of genetic
                                                     
1 IP/C/M/35, paragraph 226.This document has been prepared under the Secretariat's own
responsibility and without prejudice to the positions of Members
and to their rights and obligations under the WTOIP/C/W/368
Page 2
resources and the CBD, and the third concerns the TRIPS Agreement and prior informed
consent/benefit sharing.  There is also a final section which provides information on national
legislation, practices and experiences with respect to this agenda item.
I. GENERAL VIEWS ON THE RELATIONSHIP BETWEEN THE TRIPS
AGREEMENT AND THE CBD
5. Two general issues concerning the overall relationship between the TRIPS Agreement and the
CBD that have been raised in the discussion are:
- whether or not there is conflict between the TRIPS Agreement and the CBD;
- whether something needs to be done, at leas t on the TRIPS side, to ensure that the two
instruments are applied in a non-conflicting and mutually supportive way, and if so,
what.
6. With regard to these two questions, the views expressed appear to fall into three broad
categories:
- there is inherent conflict between the two instruments, and the TRIPS Agreement needs
to be amended to remove such conflict2;
- there is no conflict between the two Agreem ents and governments can implement the two
in a mutually supportive way through national measures;
- there is no inherent conflict but there is or could be a potential for conflict depending on
the way that the Agreements are implemented, and there is a need for, or at least a case
for, international action to ensure that the two Agreements are implemented in a mutually
supportive manner.
7. Two main reasons have been put forward for the view that there is an inherent conflict
between the TRIPS Agreement and the CBD:
- the TRIPS Agreement, by requiring that certain genetic material be patentable or
protected by sui generis  plant variety rights and by not preventing the patenting of other
genetic material, provides for the appropriation of such genetic resources by private
parties in a way that is inconsistent with the sovereign rights of countries over their
genetic resources as provided for in the CBD3;
- the TRIPS Agreement provides for the patenting or other intellectual property protection
of genetic material without ensuring that the provisions of the CBD, including those
relating to prior informed consent and benefit sharing, are respected.4
Similar points have been made about the rela tionship between the TRIPS Agreement and the
provisions of the CBD relating to the traditional knowledge of indigenous peoples and local
communities.
8. The proponents of this view have suggested that Article 27:3(b) of the TRIPS Agreement
should be amended so as to oblige all Members to make life forms and parts thereof non-patentable.
                                                     
2 India, IP/C/M/25, para. 89, IP/C/M/24, para. 81, IP/C/W/196, IP/C/W/195;  Kenya, IP/C/M/28, para. 144,
IP/C/W/163;  Mauritius on behalf of the African Group, IP/C/W/206;  Zambia, IP/C/M/28, para. 147.
3 Kenya, on behalf of the African Group, IP/C/W/163.
4 Kenya, IP/C/M/28, para. 144.IP/C/W/368
Page 3
It has been suggested that, if this was not possible, at least patents for those inventions based on
traditional or indigenous knowledge and essentially derived products and processes should be
excluded.5  In addition there has been a suggestion that patents inconsistent with Article 15 of the
CBD not be granted and that such an obligation be incorporated into the TRIPS Agreement.6
9. The following are the main reasons that have been put forward for the view that there is no
conflict  between the TRIPS Agreement and the CBD and little or no likelihood of a conflict in
practical implementation:
- the TRIPS Agreement and the CBD have different objects and purposes and deal with
different subject-matter7;
- the granting of patent rights over inventions that use genetic material does not prevent
compliance with the provisions of the CBD regarding the sovereign right of countries
over their genetic resources, prior informed consent and benefit sharing8;
- no specific examples of conflict have been cited.9
10. The proponents of this view believe that no change is required to either Agreement to
accommodate the implementation of the other and that implementation of each should be pursued in
separate frameworks.  The view has been expressed that, in fact, implementation of the TRIPS
Agreement is supportive of measures that would implement the obligations of the CBD mosteffectively:  for example, the disclosure requirements of the patent system and the control over
production and distribution given to patent owners and their licensees can facilitate the sharing of
technology, the avoidance of anti-competitive secrecy agreements among commercial operators and
the implementation of bio-safety rules;  patents can al so be instrumental in the sharing of benefits and
the conservation of biological diversity based on voluntary contracts.
10
11. In support of the third category of views , namely that, while there may be no inherent
conflict between the two Agreements, there is considerable interaction between them11 and  a need, or
at least a case, for enhanced international action to  ensure that the two Agreements are implemented
in a mutually supportive manner, it has been said that there is considerable interaction and overlap
between the subject-matter of the two Agreements.12  Some holding this view have said that there is a
potential for conflict depending on the way the Agr eements are implemented at the international and
national levels.13  The view has also been expressed that what is more important than considering
whether there is potential for conflict is to consider how the TRIPS Agreement could be implemented
in a way supportive of the CBD.14
12. It has been suggested by some who take th is view that, while maintaining the existing
exceptions provided for in Article 27.3(b), the TRIPS Agreement should be amended to incorporate
                                                     
5 India, IP/C/M/25, para. 70.
6 India, IP/C/W/196.
7 EC, IP/C/M/30, para. 143, IP/C/W/254;  Japan, IP/C/M/26, para. 77, IP/C/M/25, para. 93, IP/C/W/236;  Norway,
IP/C/M/32, para. 125, IP/C/W/293; United States, IP/C/W/209, IP/C/W/162.
8 EC, IP/C/W/254, IP/C/M/30, para. 143.
9 United States, IP/C/W/162, IP/C/M/29, para. 181.
10 EC, IP/C/W/254, IP/C/M/30, para. 143;  Korea, IP/C /M/28, para. 164;  Switzerland, IP/C/W/284, IP/C/M/29,
para. 176;  United States, IP/C/W/257, IP/C/M/30, para. 154.
11 EC, IP/C/W/254.
12 Australia, IP/C/W/310;  Czech Republic, IP/C/M/33, para. 126;  EC, IP/C/M/35, para. 233;  Japan, IP/C/M/32,
para. 142;  Norway, IP/C/M/32, para. 125, IP/C/W/293.
13 Brazil, IP/C/M/29, paras. 146 and 148, IP/C/M/28, para. 135, IP/C/M/27, para. 122;  India, IP/C/M/30, para.
169, IP/C/M/33, para. 124;  Indonesia, IP/C/M/32, para. 135;  Norway, IP/C/M/32, para. 125, IP/C/W/293;  Venezuela,IP/C/M/28, para. 165, IP/C/M/32, para 136.
14 China, IP/C/M/35, para. 248.IP/C/W/368
Page 4
certain requirements of the CBD.15  In particular, a suggestion has been made that patent applicants
should be required to disclose the origin of any genetic material or traditional knowledge used in
inventions and to demonstrate that they have obtained prior informed consent from the competent
authority in the country of origin and entered into appropriate benefit-sharing arrangements.16  It has
also been suggested that work on these ideas should be pursued in WIPO, CBD and FAO and, whereand when relevant, in the TRIPS context.
17
13. The issue of what can be learnt about the re lationship between the TRIPS Agreement and the
CBD from the way in which the CBD refers to intellectual property matters and other
international agreements  has also been discussed:
- one view is that Article 16.5 of the CBD itself acknowledges a conflict between the
objectives of protecting IPRs and those of the conservation of biological diversity when
it states that "[t]he Contracting Parties, recognizing that patents and other intellectualproperty  rights may have an influence on the implementation of this Convention, shall
cooperate in this regard subject to national legislation and international law in order to
ensure that such rights are supportive of and do not run counter to its objectives"
18;
- another view has been that the mere fact that the CBD refers to the possibility of conflict
does not mean that one exists.19  Moreover, the CBD itself recognizes, in its Article 16.2,
the need for adequate and effective protection of IPRs.  This demonstrates that the two
instruments are not in conflict.20  Further, it has been said that another reason why it
would be difficult to imagine a conflict is that Article 22.1 of the CBD states that
"provisions of this Convention shall not affect the rights and obligations of anyContracting Party deriving from any existing international agreement, except where the
exercise of those rights and obligations would cause serious damage or threat to
biological diversity".
21
II. PATENTABILITY OF GENETIC MATERIALS AND THE CBD
14. As indicated in the previous section, one view that has been expressed about the relationship
between the TRIPS Agreement and the CBD is that allowing patents to be granted in respect of
genetic material is in itself inconsistent with the CBD because they limit access to such genetic
material and can conflict with the sovereign rights of countries over their genetic resources.22
15. It has also been said that problems of cons istency with the CBD can arise more particularly
where Members do not follow closely enough the criteria for patentability  laid down in the TRIPS
Agreement, namely those of novelty, inventive step  (or non-obviousness) and industrial applicability
(or usefulness) and grant over-broad patents.23  In this regard, concern has been expressed about:
                                                     
15 Brazil, IP/C/M/29, paras. 146, 148 and 234;  IP/C/M/28, para. 135, IP/C/M/27, para. 122; Ecuador, IP/C/M/25,
para. 87;  India, IP/C/M/30, para. 169, IP/C/W/198;  Indonesia, IP/C/M/32, para. 135;  Kenya, IP/C/M/28, para. 144,  Kenyaon behalf of the African Group, IP/C/W/163;  Mauritius on behalf of the African Group, IP/C/W/206;  Norway, IP/C/M/32,para. 125, IP/C/W/293;  Thailand, IP/C/M/25, para. 78;  Turkey, IP/C/M/27, para. 132;  Venezuela, IP/C/M/32, para 136,IP/C/M/28, para. 165.
16 India, IP/C/M/24, para. 81, IP/C/W/195;  Brazil, IP/C /M/33, para. 121, IP/C/M/32, para. 128, IP/C/W/228.
17 EC, IP/C/W/254.
18 Brazil, IP/C/M/26, para. 62.
19 United States, IP/C/M/29, para. 193.
20 United States, IP/C/M/29, para. 193.
21 United States, IP/C/W/209.
22 Kenya, IP/C/W/163.
23 Brazil, IP/C/W/228.IP/C/W/368
Page 5
- the granting of patents covering genetic material in its natural state.  A concern has been
expressed that the TRIPS obligation to provide patent protection for micro-organisms
could mean the patenting of a range of genetic materials in their natural state.24  It has
been argued that some Members define inventions to include discovery of naturally
occurring matter and that this has led to patents on life forms found in their naturalstate
25;
- the granting of patents in respect of genetic material that has been merely isolated from
nature and not otherwise modified.  In this connection, the view has been expressed that
for a micro-organism to be patentable in a way that would avoid conflict with the CBD, it
should have undergone some genetic modification at the hands of man.26
16. In response, it has been said that:
- the granting of patents on inventions which use genetic resources does not stand in the
way of the fulfilment of the provisions of the CBD relating to the sovereign right of
countries over access to genetic resources in their territories and prior informed consent
as a condition of such access27;
- holding a patent on isolated or modified ge netic materials does not amount to ownership
of genetic materials themselves, nor does it provide property rights with regard to the
source from which the original material was obtained.28  A patent on an isolated,
identified and modified gene provides the patentee only with the ability to prevent othersfrom producing, marketing and using the modified gene.  The source from which the
gene was taken would be unaffected by the patent
29;
- life forms in their natural state would not satisfy the criteria for patentability in the
TRIPS Agreement.  However, if the subject-matter of a patent has involved sufficienthuman intervention, such as production by means of a technical process or isolation or
purification, and if the isolated or purified subject is not of a previously recognized
existence, then it is capable of constituting an invention
30;
- when the criteria for patentability are properly applied, most problems arising in this
context would be avoided.31  Occasions do arise where patents are granted for inventions
that do not fully meet the tests for patentab ility set out in the TRIPS Agreement, notably
because of inadequate information available to the patent-examiner.  The point has been
made that, in such circumstances, the patent system provides means by which such
patents can be successfully opposed or revoked.32
17. In response, it has been said that examining the very numerous patent applications and grants
to check on whether inappropriate patents are being applied for or granted is a burdensome process,
especially for developing countries.  Moreover, legal procedures for seeking revocation of such
patents are expensive.33  It has been suggested that one way of reducing such burdens and facilitating
                                                     
24 Kenya, IP/C/M/28, para. 141;  Peru, IP/C/M/29, para. 175.
25 Kenya, IP/C/M/28, para. 141.
26 Brazil, IP/C/W/228.
27 EC, IP/C/W/254, IP/C/M/30, para. 143.
28 EC, IP/C/W/162;  United States, IP/C/W/209, IP/C/M/25, para. 71.
29 United States, IP/C/W/162.
30 EC, IP/C/W/254;  Japan, IP/C/W/236, IP/C/M/29, para. 151.
31 Switzerland, IP/C/M/30, para. 164.
32 EC, IP/C/W/254;  Japan, IP/C/M/29, para. 157;  Switzerland, IP/C/W/284;  United States, IP/C/W/209.
33 Brazil, IP/C/M/28, para. 135;  India, IP/C/M/28, para. 126;  Pakistan, IP/C/M/28, para. 157.IP/C/W/368
Page 6
the invocation of opposition/revocation procedures would be by requiring patent applicants to disclose
the origin of any genetic resources used in their in ventions.  This would facilitate the monitoring by
source countries of potentially inappropriate patent applications and grants.34  The discussion that has
taken place regarding this proposal is mo re fully set out in Section III below.
18. Concern has also been expressed that the grant of overly broad patents  could impede access
to and use of genetic resources in a way which gives rise to questions of compatibility with the
CBD.35  A related concern has been expressed about patent rights over genetic resources that
restrict research  by third parties.36
19. The summary note on the review of the provisions of Article 27.3(b) provides further details
of the discussion on the above points.  In addition, in the discussions in the TRIPS Council, some
points similar to those outlined above in relation to genetic resources have also been made in regard to
traditional knowledge, having regard inter alia  to the provisions of the CBD on the traditional
knowledge of indigenous peoples and local communities.  This discussion is set out in the Secretariat
summary note relating to the protection of traditional knowledge and folklore.
III. THE TRIPS AGREEMENT AND PRIOR INFORMED CONSENT/BENEFIT
SHARING
20. As indicated in Section I of this paper, concern has been expressed that the TRIPS Agreement
allows the granting of patents for inventions that use genetic material without requiring that the
provisions of the CBD in relation to prior informed consent and benefit sharing are respected.  It has
therefore been suggested that the TRIPS Agreement should be amended so as to require, or to enable,
WTO Members to require that patent applicants disclose, as a condition to patentability:  (a) thesource of any genetic material used in a claimed invention;  (b) any related traditional knowledge used
in the invention;  (c) evidence of prior informed consent from the competent authority in the country
of origin of the genetic material;  and (d) evidence of fair and equitable benefit sharing.
37  It has been
suggested that such provisions could be incorporated into the TRIPS Agreement by amending
Article 27.3(b)37 or Article 29.38
21. In response, the view has been expressed that such a provision is neither necessary nor
desirable for implementing the prior informed cons ent and benefit-sharing provisions of the CBD.
The point has been made that intellectual property rights do not aim to regulate the access and use of
genetic resources, to regulate the terms and conditions for bio-prospecting or the commercialization of
IPR-protected goods and services.39  It has been said that this could best be done through contracts
between the authorities competent for granting access to genetic resources and any related traditional
knowledge and those wishing to make use of such resources and knowledge.  In accordance with theCBD, countries could incorporate in their national legislation requirements for the conclusion of such
contracts.  It has been suggested that, to be effe ctive, such contracts shou ld spell out in detail the
terms and conditions under which access and use is granted, including any requirements for joint
research and development or for the transfer of technology that might result from the use of genetic
resources and traditional knowledge to which access is to be granted.  For instance, those seekingaccess to genetic resources for research and development could be required to share the benefits of
any patents that might be granted for inventions developed from those genetic resources, including by
providing access to the technology.  Questions of jurisdiction of courts and conditions required to be
included in contracts with third parties licensed to make use of genetic resources or traditional
                                                     
34 Brazil, IP/C/M/33, para. 121, IP/C/M/32, para. 128, IP/C/W/228;  India, IP/C/M/29, para. 165, IP/C/W/195.
35 Brazil, IP/C/W/228, IP/C/M/29, para. 146;  India, IP/C/M/28, para. 126.
36 Kenya, IP/C/M/28, para. 141;  Mauritius on behalf of the African Group, IP/C/W/206.
37 Brazil, IP/C/W/228, IP/C/M/32, para. 128, IP/C/M/33, para. 121.
38 India, IP/C/W/195, IP/C/M/24, para. 81.
39 EC, IP/C/W/254.IP/C/W/368
Page 7
knowledge obtained would have to be spelled out.  Criminal and/or civil remedies could be provided
for in the event of a breach of obligations on either side and contracts can be litigated in the specified
jurisdiction and judgements enforced around the world under international agreements regarding the
recognition of judgements.40
22. It has also been said that such a system would be  flexible enough to take into account that the
economic value of inventions resulting from the exploitation of the biological resource can be highly
variable and may be largely attributable to the inventive efforts of the inventor and the
commercialization efforts of the patent owner,  not to the biological resource as such.41  Moreover it
could also recognize that, where genetic resources can be obtained from a number of sources, the
party seeking access would be likely to seek the resources from the territory that provides the most
favourable terms.  The system could thus help in finding a balance between the value attributable to
the genetic resources and that attributable to the efforts of the inventors and developers.42
23. It has also been said that the benefit-shar ing provisions of the CBD can be implemented
through governmental fund-granting activities.43  Attention has been drawn to the financial
mechanism provided for under Articles 20 and 21 of the CBD.44
24. In response, it has been said that reliance on a system of voluntary contracts has a number of
significant drawbacks from the perspective of developing countries:
- it does not address the situation where bio-prospecting and use of genetic resources and
traditional knowledge might take place without the authorization of the competent
authority in the country of origin and therefore without the conclusion of any contract.45
While such actions might be illegal under the law of the country of origin, there might belittle that could be done under that law once the genetic material and traditionalknowledge is being used outside that jurisdiction.  If voluntary contracts were a sufficient
means of ensuring respect of the rights of the country or community of origin of genetic
material/traditional knowledge, why would a similar logic not also apply in respect of the
protection of intellectual property and specific IP legislation that applies even in the
absence of contracts not be considered necessary
46;
- it cannot be assumed that the two parties to such a contract would be in a position to
negotiate it and defend it on equal terms.47
25. It has been argued, on the other hand, that the proposed disclosure requirement would have
the following advantages:
- it would help provide a predictable environment for governments, investors, traditional
communities and researchers and would lead to more biotechnological R&D in
developing countries48;
                                                     
40 United States, IP/C/W/257.
41 Japan, IP/C/M/29, para. 156, IP/C/W/236.
42 Japan, IP/C/M/29, para. 156, IP/C/W/236;  Thailand, IP/C/M/29, para. 174;  United States, IP/C/W/257.
43 Japan, IP/C/W/236.
44 United States, IP/C/W/257.
45 Peru, IP/C/M/35, para. 236, IP/C/M/32, para. 133.
46 Brazil, IP/C/M/32, para. 128.
47 Pakistan, IP/C/M/28, para. 158.
48 Brazil, IP/C/W/228.IP/C/W/368
Page 8
- it would facilitate the conclusion of contracts, such as material transfer agreements for
the transfer of biological materials and information transfer agreements for the transfer of
traditional knowledge49;
- several countries have already established such requirements in their national legislation
as a means of implementing the CBD and there would be legal certainty if the TRIPS
Agreement was amended accordingly50;
- incorporation of such an obligation in the TRIPS Agreement and its enforcement through
the WTO dispute settlement system would provide a mechanism to help ensure
compliance with the prior informed consent/benefit rules of the CBD.51
26. In response, the following points have been made:
- the additional proposed requirements on patent applicants would be unnecessarily
burdensome.52  Indeed, such a system could be a legal and administrative nightmare as
origin is not easy to determine.53  It would result in increasing the costs of acquiring
patents and be disadvantageous to inventors, including to those in developing countries.It could also encourage inventors to keep their inventions secret rather than apply for
patents
54;
- for the above reasons, such a proposal could not be relied upon to ensure benefit sharing;
- contracts could include requirements on applicants to disclose the contract in any patent
application filed that claims an invention developed through the use of the genetic
resources or traditional knowledge obtained55;
- while it is possible that a few individuals could ignore legal requirements and obtain
samples of genetic material without entering into an access agreement with the
appropriate party, in the same way that some individuals counterfeit trademarks or pirate
copyright works, this does not negate the value of a contractual system that would apply
to the vast majority of those seeking access.  Criminal provisions and/or civil remedies
can be included in a country's laws in order to tackle such cases56;
- neither the intellectual property system in general nor the TRIPS Agreement in particular
are the appropriate instruments for regulating access to and use of genetic resources, the
terms and conditions for bio-prospecting or the commercialization of IPR-protected
goods and services57;
- the proposed requirement is not consistent with the TRIPS Agreement.  Existing
disclosure rules in Article 29 are directly related to determining whether an invention
meets the standards of patentability and to disclosing the technology for which patent
                                                     
49 India, IP/C/W/195.
50 India, IP/C/M/29, para. 165, IP/C/W/198, IP/C/W/195.
51 Brazil, IP/C/W/228;  India, IP/C/M/29, para. 160;  Mauritius on behalf of the African Group, IP/C/W/206;
Norway, IP/C/M/35, para. 237, IP/C/W/283.
52 Japan, IP/C/M/32, para. 142;  Korea, IP/C/M/32, para. 140.
53United States, IP/C/W/216, IP/C /W/209;  Norway, IP/C/W/293.
54 United States, IP/C/W/216.
55 Japan, IP/C/M/29, para. 155;  Korea, IP/C/M/30, para. 171;  Thailand, IP/C/M/29, para. 174;  United States,
IP/C/M/30, para. 177.
56 United States, IP/C/W/257.
57 EC, IP/C/M/32, para. 129, IP/C/W/254IP/C/W/368
Page 9
protection is being sought to enable others to reproduce it and learn from it.58  Such a
requirement would also be contrary to Article 62.1 of the Agreement which only
provides for "reasonable procedures and formalities".  This proposal might also conflict
with Article 27.1 which provides for non-discrimination in patent availability between
fields of technology.59  Given all this, the proposed requirement would modify the
balance of rights and obligations found in the TRIPS Agreement, both between interested
parties and between WTO Members;
- the proposal goes beyond the CBD itself, in that the CBD leaves it to each country to
establish its own system for controlling access to genetic resources and benefit sharing,
without being prescriptive about how this should be done.60
27. In response to these points, it has been said that the proposed requirements would not be more
burdensome than any other under the existing patent application procedure.61  It has also been said
that these requirements could be administered by national biodiversity authorities.62  Moreover they
could be applied selectively, that is to say only in cases where a Member had reasonable grounds to
suspect that national biodiversity legislation had been violated by a patent applicant.63
28. Another reaction to the proposed disclosure requi rement is a readiness to engage in a positive
manner in a discussion on a stand-alone multilateral sy stem and/or other solutions for disclosing and
sharing information about the geographical origin of biological material relied upon in patent
applications without affecting the TRIPS Agreement and whilst preserving the right to create a
favourable intellectual property environment for biotechnology research.64  Once such a system or
solution is in place, attention could then be focuse d on examining how and to what extent it needed to
be included in the TRIPS Agreement.  It has been stressed that such a system could never on its own
be a satisfactory guarantee of the sharing of benefits arising from the use of genetic resources and
should be considered as complementary to the main  legal instrument in th is respect, i.e. the
enforcement of a sound and effective national legislation for access, benefit sharing and the protectionof traditional knowledge.
65
IV. INFORMATION ON NATIONAL LEGISLATION PRACTICES AND
EXPERIENCES
29. Four Members have made submissions with regard to their national legislation, practices and
experiences in the area of access to genetic resources and benefit sharing.  These are Australia, India,
Peru and the United States.66
_______________
                                                     
58 Japan, IP/C/M/29, para. 155;  United States, IP/C/M/30, para. 177.
59 Japan, IP/C/M/29, para. 155.
60 EC, IP/C/W/254;  Japan, IP/C/W/236;  Singapore, JOB(00)/7853, IP/C/M/29, para. 166.
61 Brazil, IP/C/W/228;  India, IP/C/M/29, paras. 165 and 166;  Thailand, IP/C/M/29, para. 173.
62 India, IP/C/W/198, IP/C/M/29, para. 166.
63 Brazil, IP/C/W/228; Thailand, IP/C/M/29, para. 173.
64 EC, IP/C/M/35, para. 234, IP/C/M/30, paras. 144 and 146.
65 EC, IP/C/M/30, para. 144;  Australia, IP/C/W/310.
66 Australia, IP/C/W/310;  India, IP/C/W/198;  Peru, IP/C/W/296;  United States, IP/C/W/341.IP/C/W/368
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ANNEX
DOCUMENTS OF THE TRIPS COUNCIL WITH RESPECT TO THE REVIEW OF THE
PROVISIONS OF ARTICLE 27.3(B), THE RELATIONSHIP BETWEEN TRIPS AND
THE CONVENTION ON BIOLOGICAL DIVERSITY AND THE PROTECTION
OF TRADITIONAL KNOWLEDGE AND FOLKLORE
The TRIPS Council held 15 formal meetings during the period January 1999 to March 2002.
The reports on these meetings (IP/C/M/21-35) reflect the work done so far in the TRIPS Council
pursuant to inter alia  the mandated review of the provisions of Article 27.3(b).  The substantive
discussions in the TRIPS Council on these issues have been recorded in the reports of the meetingsheld from August 1999 to March 2002 (IP/C/M/24-35).
Other documents that have been made available include:
- Members' submissions relating to specific issues.  Over the period December 1998 to
October 2001, 22 papers have been submitted by Members or groups of Members(List B).
- Information on national legislation, practices and experiences submitted by four
Members;  and the responses to the questionnaire on Article 27.3(b) from
23 Members (List C).
- Information provided on work in intergovernmental organizations (List D).- Notes by the Secretariat on relevant issues under discussion in the TRIPS Council
(List  E).IP/C/W/368
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LIST A – Records of the work of the TRIPS Council
  IP/C/M/21-35 Minutes of the TRIPS Council Meetings 22 January 1999 –
22 March 2002
LIST B - Members' submissions relating to the agenda items
2001
 Australia   IP/C/W/310 Communication from Australia:  Review of
Article 27.3(b)   2 October 2001
 EC   IP/C/W/254 Review of the Provisions of Article 27.3(b) of the
TRIPS Agreement:  Communication from the
European Communities and their Member States   13 June 2001
 Norway   IP/C/W/293 Communica tion from Norway:  Review of
Article 27.3(b) of the TRIPS Agreement:  The
Relationship between the TRIPS Agreement and
the Convention on Biological Diversity   29 June 2001
 Switzerland   IP/C/W/284 Communication from Switzerland:  Review of
Article 27.3(b):  The View of Switzerland   15 June 2001
 United States   IP/C/W/257 Communication from the United States - Views of
the United States on the Relationship between the
Convention on Biological Diversity and the TRIPSAgreement   13 June 2001
2000
 Brazil   IP/C/W/228 Review of Article 27.3(b) – Communication from
Brazil   24 November 2000
 India   IP/C/W/195 Communication from India    12 July 2000
 India   IP/C/W/196 Communication from India    12 July 2000
 India   JOB(00)/6091 Non-paper by India    5 October 2000
 Japan   IP/C/W/236 Review of the provisions of Article 27.3(b) -
Japan's view   11 December 2000
 Mauritius   IP/C/W/206 Communication from Mauritius on behalf of the
African Group   20 September 2000
 Singapore   JOB(00)/7853 Non-paper by Sing apore - Article 27.3(b)    11 December 2000
 United States   IP/C/W/209 Review of the Provisions of Article 27.3(b) -
Further Views of the United States –
Communication from the United States   3 October 2000
1999
 Andean
 Group  IP/C/W/165 Review of the Provisions of Article 27.3(b) -
Proposal on the Intellectual Property Rights
Relating to the Traditional Knowledge of Local
and Indigenous Communities – Communication
from Bolivia, Colombia, Ecuador, Nicaragua andPeru   3 November 1999IP/C/W/368
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 Canada, EC,
 Japan and
 USA  IP/C/W/126 Review of the Provisions of Article 27.3(b) -
Communication from Canada, the European
Communities, Japan and the United States   5 February 1999
 Brazil   IP/C/W/164 Review of the Provisions of Article 27.3(b) -
Communication from Brazil   29 October 1999
 Cuba,
 Honduras,
 Paraguay and Venezuela  IP/C/W/166 Review of Implementation of the Agreement under
Article 71.1:  Proposal on the Intellectual Property
Rights of the Traditional Knowledge of Local andIndigenous Communities   5 November 1999
 India   IP/C/W/161 Review of the Provisions of Article 27.3(b) -
Communication from India   3 November 1999
 Kenya   IP/C/W/163 Review of the Provisions of Article 27.3(b) –
Communication from Kenya on behalf of the
African Group   8 November 1999
 Norway   IP/C/W/167 Review of the Provisions of Article 27.3(b) -
Communication from Norway   3 November 1999
 United States   IP/C/W/162 Review of the Provisions of Article 27.3(b) –
Communication from the United States   29 October 1999
1998
 Mexico   Job No. 6957 Non-paper from Mexico:  Application of
Article 27.3(b)    8 December 1998
LIST C - Information on national legislation, practices and experiences
2002
 United States   IP/C/W/341 Technology transfer practices of the US
National Cancer Institute’s departmental
therapeutics programme – Communication
from the United States   25 March 2002
2001
Australia   IP/C/W/310 Communication from Australia:  Review of
Article 27.3(b)   2 October 2001
Czech 
RepublicIP/C/W/125/Add.8/Suppl.1 Review of the Provisions of Article 27.3(b) -
Information from Members - Supplement   18 September 2001
Estonia   IP/C/W/125/Add.20 Review of the Provisions of Article 27.3(b) -
Information from Members – Addendum   2 July 2001
Hong Kong,
China  IP/C/W/125/Add.22 Review of the Provisions of Article 27.3(b) -
Information from Members - Addendum   10 August 2001
Thailand   IP/C/W/125/Add.21 Review of the Provisions of Article 27.3(b) -
Information from Members - Addendum   10 July 2001
Peru   IP/C/W/246 Communication from Peru:  Peru's
Experience of the Protection of Traditional
Knowledge and Access to Genetic
Resources   14 March 2001IP/C/W/368
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2000
Iceland   IP/C/W/125/Add.19 Review of th e Provisions of Article 27.3(b) -
Information from Members - Addendum   17 July 2000
India   IP/C/W/198 Protection of Biodiversity and Traditional
Knowledge – The Indian Experience   14 July 2000
1999
Australia   IP/C/W/125/Add.13 Review of the Provisions of Article 27.3(b) -
Information from Members - Addendum   16 March 1999
Bulgaria - 
(Republic 
of)  IP/C/W/125 Review of the Provisions of Article 27.3(b) -
Information from Members   3 February 1999
Canada   IP/C/W/125/Add.12 Review of th e Provisions of Article 27.3(b) -
Information from Members - Addendum   12 March 1999
Czech 
Republic  IP/C/W/125/Add.8 Review of the Provisions of Article 27.3(b) -
Information from Members - Addendum   16 February 1999
  European
 Communities  IP/C/W/125/Add.4 Review of the Provisions of Article 27.3(b) -
Information from Members - Addendum   10 February 1999
Hungary   IP/C/W/125/Add.1 Re view of the Provisions of Article 27.3(b) -
Information from Members - Addendum   16 February 1999
Japan   IP/C/W/125/Add.7 Review of the Provisions of Article 27.3(b) -
Information from Members - Addendum   12 March 1999
Korea 
(Republic 
of)  IP/C/W/125/Add.9 Review of the Provisions of Article 27.3(b) -
Information from Members - Addendum   16 February 1999
Morocco   IP/C/W/125/Add.14 Review of the Provisions of Article 27.3(b) -
Information from Members - Addendum   20 April 1999
New 
Zealand  IP/C/W/125/Add.2 Review of the Provisions of Article 27.3(b) -
Information from Members - Addendum   12 February 1999
Norway   IP/C/W/125/Add.17 Re view of the Provisions of Article 27.3(b) -
Information from Members - Addendum   19 May 1999
Poland   IP/C/W/125/Add.11 Review of the Provisions of Article 27.3(b) -
Information from Members - Addendum   12 March 1999
Romania   IP/C/W/125/Add.6 Review of th e Provisions of Article 27.3(b) -
Information from Members - Addendum   16 February 1999
Slovak 
Republic  IP/C/W/125/Add.18 Review of the Provisions of Article 27.3(b) -
Information from Members - Addendum   27 July 1999
Slovenia   IP/C/W/125/Add.10 Review of the Provisions of Article 27.3(b) -
Information from Members - Addendum   16 February 199
 South 
AfricaIP/C/W/125/Add 16/Corr.1 Review of th e Provisions of Article 27.3(b) -
Information from Members - Corrigendum   25 May 1999
 South 
Africa  IP/C/W/125/Add.16 Review of the Provisions of Article 27.3(b) -
Information from Members - Addendum   21 April 1999
Switzerland   IP/C/W/125/A dd.15 Review of the Provisions of Article 27.3(b) -
Information from Members - Addendum   13 April 1999
United 
States  IP/C/W/125/Add.5 Review of the Provisions of Article 27.3(b) -
Information from Members - Addendum   20 April 1999
Zambia   IP/C/W/125/Add.3 Review of the Provisions of Article 27.3(b) -
Information from Members - Addendum   10 February 1999IP/C/W/368
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LIST D  - Information on the work of intergovernmental organizations
2002
UPOV   IP/C/W/347/Add.3 Review of th e Provisions of Article 27.3(b) -
Relationship between the TRIPS Agreement andthe Convention on Biological Diversity and
Protection of Traditional Knowledge and Folklore   7 June 2002
UNCTAD   IP/C/W/347/Add.2 Review of th e Provisions of Article 27.3(b) -
Relationship between the TRIPS Agreement and
the Convention on Biological Diversity and
Protection of Traditional Knowledge and Folklore   7 June 2002
CBD   IP/C/W/347/Add.1 Review of the Provisions of Article 27.3(b) -
Relationship between the TRIPS Agreement and
the Convention on Biological Diversity andProtection of Traditional Knowledge and folklore   7 June 2002
FAO   IP/C/W/347 Review of the Provisions of Article 27.3(b) -
Relationship between the TRIPS Agreement and
the Convention on Biological Diversity and
Protection of Traditional Knowledge and Folklore   7 June 2002
2001
WIPO   IP/C/W/242 Statement by the World Intellectual Property
Organization (WIPO) on intellectual property,
biodiversity and traditional knowledge   6 February 2001
2000
UNCTAD   IP/C/W/230 Document prepared by the UNCTAD Secretariat
for the expert meeting on systems and national
experiences for protecting traditional knowledge,
innovations and practices which took place from
30 October to 1 November 2000 in Geneva:Outcome of the expert meeting   14 December 2000
International
Bureau of
WIPO  IP/C/W/218 Document prepared by the International Bureau of
WIPO for the meeting on intellectual property and
genetic resources, which took place on 17 and
18 April 2000 in Geneva:  Intellectual Property
and Genetic Resources – An Overview   18 October 2000
International
Bureau of
WIPO  IP/C/W/217 Document prepared by the International Bureau of
WIPO for the round table on Intellectual Property
and traditional knowledge, which took place on1 and 2 November 1999 in Geneva:  Protection of
Traditional Knowledge:  A Global Intellectual
Property Issue   18 October 2000
1999
CBD   IP/C/W/130/Add.1 Review of the Provisions of Article 27.3(b) –
Information from Intergovernmental Organizations
- Addendum   16 March 1999
FAO   IP/C/W/130/Add.2 Revi ew of the Provisions of Article 27.3(b) –
Information from Intergovernmental Organizations
- Addendum   12 April 1999
UPOV   IP/C/W/130 Review of the Provisions of Article 27.3(b) –
Information from Intergovernmental Organizations   17 February 1999IP/C/W/368
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LIST E – Notes by the Secretariat
2001
  Job No. 2689
  IP/C/W/273Review of the Provisions of Article 27.3(b):  Synoptic
Tables of Information provided by Members – InformalNote by the Secretariat   5 June 2001
2000
  JOB(00)/7517 The Relationship between the Convention on Biological
Diversity and the TRIPS Agreement:  Checklist of PointsMade – Note by the Secretariat   23 November 2000
  Job no. 2627 UPOV-WIPO-WTO joint symposium on the protection of
plant varieties under Article 27.3(b) of the TRIPS
Agreement: Texts of presentations   7 May 1999
1998
  IP/C/W/122 Illustrative Questions:  Review of the Provisions of
Article 27.3(b)   22 December 1998
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