. /.RESTRICTEDWORLD TRADE
ORGANIZATIONIP/C/W/167
3 November 1999
(99-4761)
Council for Trade-Related Aspects
of Intellectual Property RightsOriginal:  English
REVIEW OF THE PROVISIONS OF ARTICLE 27.3(b)
Communication from Norway
The following communication, dated 21 October 1999, has been received from the Permanent
Mission of Norway.
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Norway is of the opinion that the TRIPS Agreement and the Convention on Biological
Diversity as well as other multilateral agreements, specifically in the environmental field, should be
mutually supportive.  All these agreements shou ld support the sustainable use and exploitation of
resources.  Thus, all members should be aware of the principles under the CBD treaty, when
establishing their own regimes for the protection of intellectual property.  In this regard, we note the
wording of Article 16.5 of the CBD.
The obligation to ensure compatibility, between various conventions must also be kept in
mind, i.e. when parties to the Convention on Biolog ical Diversity review their own national regimes
for intellectual property rights and those other members.  One important issue in this respect is
whether the TRIPS Agreement provides for the necessary flexibility for members to enact measures
for the implementation of CBD obligations, e.g. m easures to safeguard the traditional knowledge of
indigenous and local communities, and the equitable sharing of benefits arising from such knowledge.
At the July 1999 TRIPS Council meeting, several Members made general comments on the
question of patents and biotechnological inventions.  Norway would like to share its views on some of
these issues.
Our experience, stemming back to the adoption of the Paris Convention for the Protection of
Industrial Property, shows that a well-functioning patent system is of vital importance to innovation,
economic growth and social welfare for citizens.  At the same time, we have seen that the patent
system has demonstrated a great ability to adapt to the ever-shifting needs for the protection of
technology in new areas.  We strongly believe th at the fulfilment of the TRIPS Agreement will foster
the same experiences globally.
Today, biotechnology is one of the most promising and increasingly important areas of
research for the development of new products.  In fact, technological progress is so rapid, that
fundamental ethical, social and environmental values are sometimes neglected.  Other complex issues,such as what constitutes an inventive step and equity considerations, also confront us.
These difficult issues will have to be considered both in relation to how far we can go in
accepting, patents on lifeforms and in relation to the principle of benefit sharing
.  With regard to the
former, Norway maintains a restrictive attitude, not only in relation to the patenting of plants and
animals, but also of cells which can develop into plants and animals.IP/C/W/167
Page 2
We have noted the proposals made under the review process, i.e.  the proposal of Kenya, on
behalf of the African group,1 which relates to the issue of patentability of micro-organisms as well as
to the patentability of microbiological processes for the production of plants and animals.  Underlying
the proposal of Kenya we sense a fundamental concern as regards the ethical aspects of to whichextent intellectual property rights should be granted as a result of man's ability to create or duplicate
life forms.  These aspects should form an integral part of our discussion.
These are however, as I indicate, very difficult issues.We are during the forthcoming round under an obligation to review the provisions of
Article 27.3(b).  During the review process it w ould, in our view, be preferable not to alter the
delicately balanced wording on the question of patent ability in Article 27.3(b).  In this context, we
also have to take into consideration the fact that developing countries have not yet been under an
obligation to implement the TRIPS Agreement.
As to the question of benefit sharing, both the interests of the providers of genetic resources
and the users of such material must be taken into consideration.  In this context, we must ensure
compatibility between the CBD and the TRIPS Agreement.
In this regard, we note that India has proposed to incorporate a provision, which requires,
i.e. the disclosure of the origin of the genetic re sources and associated knowledge.  We think that this
should be seriously considered.  As to international companies which make use of indigenous genetic
resources, they should, through appropriate agreements , ensure that the people of those societies, from
where substances and life forms have originated, will benefit from bio-patents.
The current wording in Article 27.3(b) gives Members the option to establish an "effective  sui generis
system" for the protection of plant varieties, as an alternative to patents.  If this option is the preferred
one, it is the responsibility of each and every Member to create a system which gives sufficient
protection for  the parties involved.  As long as this is done, Norway can associate itself with members
who have expressed the need for flexibility in this regard.  We therefore see no need for a more
formal or explicit reference to international agreem ents on plant breeders' rights in order to clarify
what we mean by an effective system.
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1 Document WT/GC/W/302;  IP/C/W/163.