WORLD TRADE
ORGANIZATIONIP/C/W/404
26 June 2003
(03-3410)
Council for Trade-Related Aspects
of Intellectual Property RightsOriginal:  English
TAKING FORWARD THE REVIEW OF ARTICLE 27.3(b)
OF THE TRIPS AGREEMENT
Joint Communication from the African Group
The following is the text of a communica tion received from the Permanent Mission of
Morocco on behalf of the African Group, which was circulated as an advance copy for the Council's
meeting on 4-5 June 2003.
__________
This communication from the African Group aims to assist in finalising the longstanding
issues relating to the review of provisions of Ar ticle 27.3(b) of the TRIPS Agreement.  To this end,
the communication first indicates the solutions that the African Group considers need to be found;
second, it sets out possible areas of agreement on issues that have arisen;  third, it provides
suggestions on how to resolve issues that for the moment members have not been able to reach a
common understanding on, and then suggests the way forward.
I. THE SOLUTIONS REQUIRED
The African Group is concerned that the review of Article 27.3(b) of the TRIPS Agreement
has not been finalised having started way back in 1999.  The Group urges all delegations to positively
respond to the instructions to the Council for TRIPS from the Fourth Session of the Ministerial
Conference in paragraphs 12 and 19 of the Declaration.  The deadline of December 2002 within
which the review was to be finalised and this re ported to the Trade Negotiations Committee (TNC)
"for appropriate action" has passed.  This should be of concern to all delegations especially given that
deadlines in other areas of the work programme have similarly passed without concrete results.  The
review should continue until all the issues are re solved while at the same identifying the issues on
which agreement is available.
The requirement to protect plant varieties should not in any manner undermine, but should
support, the right of Members to protect important public policy goals relating to food security,
nutrition, the elimination of rural poverty, and the integrity of local communities.  In this regard, there
is no basis for requiring Members to adopt inappropriate regimes for protecting plant varieties.
The protection of genetic resources and traditional knowledge particularly those originating
from developing country Members, is an important means of addressing poverty and is rightly amatter of equity and due recognition for the custodians of the genetic resources and the traditional
knowledge.  It is also a matter of law in the context of protecting cultural rights as well as ofIP/C/W/404
Page 2
preserving the invaluable heritage of humankind that biological diversity and traditional knowledge
constitute.
Any protection of genetic resources and traditional knowledge will not be effective unless and
until international mechanisms are found and established within the framework of the TRIPS
Agreement.  Other means, such as access contracts and data bases for patent examinations, can onlybe supplementary to such international mechanisms, which must contain an obligation on Members
collectively and individually to prohibit, and to take measures to prevent, the misappropriation of
genetic resources and traditional knowledge.
Patents on life forms are unethical and the TRIPS Agreement should prohibit them, through
modifying the requirement to provide for patents on micro-organisms and on non-biological and
microbiological processes for the production of plants or animals.  Such patents are contrary to the
moral and cultural norms of many societies in Members of the WTO.  They make the exception inArticle 27.2 for protecting ordre public and morality, which Members that consider patents on life
forms to be contrary to the fabric of their soci ety and culture, and to be immoral, and which they
would otherwise invoke, meaningless in this regard.
The relation between the TRIPS Agreement and the Convention on Biological Diversity as
well as the International Treaty on Plant Genetic Resources is properly a matter on which the ViennaConvention may provide helpful guidance.  However, the debate must go beyond this purely legal
context and substantively deal with the crux of the issue raised within the framework of the review.
In this regard, the Group believes that for purposes of the review of Article 27.3(b) the issue
raised is that the TRIPS Agreement at the moment  has gaps in the sense that it has not provided
adequate and equitable means to prevent patents mainly in developed Members that have amounted toand resulted in the misappropriation of genetic resources and traditional knowledge mainly from
developing Members.  A solution needs to be found, therefore, in the context of the TRIPS
Agreement.  In this sense the discussion should focus on how to improve the TRIPS Agreement, as a
substantive subject.  Any manner that the provisions of the Convention on Biological Diversity may
facilitate this work should be used, provided that the result does not put Members in a position ofbreaching their obligations or forfeiting their rights under the Convention on Biological Diversity and
the International Treaty on Plant Genetic Resources.
II. POSSIBLE AREAS OF AGREEMENT
The African Group welcomes the interest that delegations have shown in the review of Article
27.3(b) to date as demonstrated in the various communications and statements.  On its part, the Group
is keen to take the process forward in a constructive manner and to finalise the review in a manner
that reflects a good overall balance for all Members.  In doing so, however, the Group recalls that theGeneral Council and the Declaration of the Fourth Session of the Ministerial Conference in
paragraph 19, equally highlighted that the development implications for developing and least
developed Members must be integral to the review of the TRIPS Agreement.
In this context, the African Group wishes that delegations confirm a common understanding
in the following areas:
(a) Members have the right and the freedom to determine and adopt appropriate regimes in
satisfying the requirement to protect plant varieties by effective  sui generis  systems.  In this
regard, and for purposes of illustration, such regimes may draw upon the International Treaty
on Plant Genetic Resources, the Convention on Biological Diversity, the 1978 Act of the
Convention of UPOV, and the African Model Legislation on the Protection of the Rights ofLocal Communities, Farmers and Breeders and the Regulation of Access to BiologicalIP/C/W/404
Page 3
Resources.  The appropriate and beneficial appr oach is to have systems of protection which
can address the local realities and needs.  The "African Model Legislation on the Protection of
the Rights of Local Communities, Farmers and Breeders and the Regulation of Access to
Biological Resources" is one example of a sui generis  system, which has been developed to
provide appropriate and effective protection for the rights and knowledge of farmers, as wellas indigenous peoples and local communities, in a manner that suits the circumstances of
Africa and possibly other developing Members.
(b) Regardless of what sui generis  system that is adopted for protecting plant varieties, non
commercial use of plant varieties, and the system of seed saving and exchange as well as
selling among farmers, are rights and exceptions that should be ensured as matters of
important public policy to, among other things, ensure food security and preserve the integrityof rural or local communities.  While the le gitimate rights of commercial plant breeders
should be protected, these should be balanced against the needs of farmers and local
communities, particularly in developing Members.  Any sui generis  system should enable
Members to retain their right to adopt and develop measures that encourage and promote the
traditions of their farming communities and indigenous peoples in innovating and developingnew plant varieties and enhancing biological diversity.
(c) Both the TRIPS Agreement and the Convention on Biological Diversity as well as the
International Treaty on Plant Genetic Resources should be implemented in a mutually
supportive and consistent manner.  In this regard, Members retain the right to require, withintheir domestic laws, the disclosure of sources of any biological material that constitutes some
input in the inventions claimed, and proof of benefit sharing.
(d) Traditional knowledge and inventions of local communities should be protected under
appropriate regimes, on the understanding that the TRIPS Agreement provides only minimumstandards and does not prevent Members from adopting additional areas of protection.  In this
regard, it is important to develop mechanisms for ensuring equity in relation to the use of
genetic resources and traditional knowledge through appropriate international arrangements
and mechanisms to supplement domestic laws and measures.
(e) It is important to identify and document genetic resources and traditional knowledge as a way
of assisting searches and examinations for novelty and inventive step, and equally importantas a mechanism for ensuring equity and promoting economic and social development in the
use of genetic resources and traditional knowledge.
In this exercise of finding solutions to concerns raised by Members under Article 27.3(b), co-
operation with all relevant international and civil society organizations is vital. Special considerationshould be given to fully engaging indigenous people and local communities in developing any
mechanisms relating to traditional knowledge;  in  any case provision must be made for respecting
their concerns over the knowledge they are custodians of.
III. AREAS WITHOUT COMMON UNDERSTANDING
A. P
ATENTING LIFE FORMS
One area where delegations have yet to reach common understanding concerns the possibility
under Article 27.3(b) for members to grant patents on micro-organisms and on non-biological and
micro-biological processes for the production of plants or animals.
The African Group maintains its reservations about patenting any life forms as explained on
previous occasions by the Group and several other delegations.  In this regard, the Group proposesIP/C/W/404
Page 4
that Article 27.3(b) be revised to prohibit patents on plants, animals, micro-organisms, essentially
biological processes for the production of plants or animals, and non-biological and microbiological
processes for the production of plants or animals.  For plant varieties to be protected under the TRIPS
Agreement, the protection must clearly, and not just implicitly or by way of exception, strike a good
balance with the interests of the community as a whole and protect farmers’ rights and traditionalknowledge, and ensure the preservation of biological diversity.
In any case, the Council for TRIPS must ensure that the exceptions for ordre public or
morality in paragraph 2 of Article 27 are not rendered meaningless by any provisions in its paragraph
3(b) through requiring Members to do what is otherwise contrary to ordre public and morality in their
societies.  The barest minimum in this regard, would be to clarify that paragraph 3(b) does not in any
manner restrict the rights of Members to resort to the exceptions in paragraph 2.
B. P
ATENTING OF MICRO -ORGANISMS , AND NON -BIOLOGICAL AND MICROBIOLOGICAL
PROCESSES
As pointed out above, the African Group has consistently raised serious concerns about
patents on life forms and research tools and on the basis of these concerns the Group has maintainedthat there should not be a possibility, within the framework of the TRIPS Agreement, of patents on
micro-organisms as well as on non-biological and microbiological processes for the production of
plants and animals.
It is the view of the Group that the distinction drawn in Article 27.3(b) for micro-organisms,
and for non-biological and microbiological processes for the production of plants or animals, is
artificial and unwarranted, and should be removed from the TRIPS Agreement, so that the exception
from patentability in paragraph 3(b) covers plants, animals, and micro-organisms, as well as
essentially biological processes and the non-biological and microbiological processes for the
production of plants or animals.
C. M
ISAPPROPRIATION OF GENETIC RESOURCES AND TRADITIONAL KNOWLEDGE
A third area without common understanding concerns the international mechanisms that
should be adopted within the framework of the TRIPS Agreement to protect genetic resources and
traditional knowledge.  This issue is important for the African Group and other developing Members
due to the misappropriation of these resources.  The misappropriation has mainly taken the form of
obtaining patents in, mostly, developed Members inconsistently with the will of the custodiancommunities and the countries that have sovereignty over the resources.
Subject to the need for the WTO to find solutions within its own framework as indicated
below, the African Group believes that access contracts can be useful in regulating the activities of
researchers and other gatherers.  However, this utility will be effective only within the countriesthemselves in accordance with the domestic law enforcing the contracts.
The Group believes further that databases for patent offices, which can be used in examining
patent claims to determine whether they meet the requirements of novelty, inventiveness and
usefulness, can also be helpful in minimising misappr opriation of resources.  But it must be noted that
such databases are still far from complete and documentation is still an ongoing process.  And, such
efforts would still not amount to effective in ternational mechanisms requiring every member
individually and collectively, as enforceable international obligations, to prohibit and take measures to
prevent the misappropriation of the resources.  The problems to be addressed among others are, that in
applying the test of prior art certain domestic laws do not recognise certain (unwritten) forms oftraditional knowledge, that it may be far too costly for local communities and some developingIP/C/W/404
Page 5
Members to seek remedies in domestic courts abroad, and that international solutions are needed quite
urgently given the ongoing nature of the problem.
Nevertheless, such efforts - contractual access clauses and databases on traditional knowledge
- are being undertaken in the context of WIPO in  a manner that suits the functioning of WIPO.
Ongoing work in WIPO could not possibly be a good reason for delaying or putting off work in the
WTO.  First, any conclusions reached in WIPO do not automatically become applicable in the WTO,
which would have to start its own processes afresh.  But even this optimism that WIPO work could be
relevant to the WTO in areas of interest to developing Members, may not be borne out by experience
so far.  Work in other international organizations, particularly regarding the Convention on Biological
Diversity and the International Treaty on Plant Genetic Resources, has not automatically translated
into the WTO, though relevant.  Secondly, it is the assessment of the African Group that work inWIPO on genetic resources and traditional knowledge has been very slow, and that it would therefore
not be appropriate to defer action under the mandate on Article 27.3(b), which has a time frame, until
WIPO completed its work.  In WIPO at the moment , the possibility of an international instrument to
protect traditional is still far, while the problem of misappropriation of genetic resources and
traditional knowledge continues unabated.  Rather, it would appear sensible that all internationalorganizations whose work has a bearing on genetic resources and traditional knowledge should seek
to find international solutions.  Coherence would then be in terms of sharing information and ensuring
harmony in the instruments.  This was clearly dem onstrated recently when the International Treaty on
Plant Genetic Resources took its place in the family of international instruments.
The WTO must on its part find measures that are in line with its unique way of functioning,
particularly in regard to the manner that rights and obligations of members are spelt out and breaches
of obligations addressed.  The WTO Agreement, as a single undertaking, provides for compulsory
obligations on members, which are enforceable in accordance with the Dispute Settlement
Understanding.  A solution to the concerns relating to patenting that constitutes a misappropriation ofgenetic resources and traditional knowledge, should similarly take the form of obligations that are
enforceable within the WTO framework.
Against this background, the African Group suggests that the Council for TRIPS should
consider adopting a Decision on Protecting Tradit ional Knowledge as set out in Annex 1 to this
communication.  The Decision could be subject to a review that would take future developments into
account.
D. T
HE RELATION BETWEEN THE TRIPS AGREEMENT AND THE CONVENTION ON BIOLOGICAL
DIVERSITY
The African Group recognises that delegations do not hold the same view on how the Vienna
Convention can assist reconcile the relevant obligations of the TRIPS Agreement and the Conventionon Biological Diversity.  In light of the several communications from Members on this subject, the
Group is willing to further engage with delegations to find a solution.
It is the view of the Group that the major is sue to be addressed, within the context of the
review of Article 27.3(b), is how to fill in the ga ps that have been perceived in the TRIPS Agreement.
Although the Convention on Biological Diversity has important provisions related to the perceived
gaps, the Council for TRIPS should squarely address the question on its own merits and find
appropriate solutions.  Appropriate solutions in this regard, given the nature of the rights and
obligations under the TRIPS Agreement, should be in the nature of international mechanisms that
similarly confer rights and obligations upon every WTO Member.
The rights should protect genetic resources and traditional knowledge from misappropriation.
This should be done, naturally, through requirements for equity for the custodians of the geneticIP/C/W/404
Page 6
resources and the traditional knowledge.  The obligations should require every Member to prohibit
and take measures to prevent misappropriation of genetic resources and traditional knowledge.  This
should be done through requirements for disclosure of the source of the genetic resources and
traditional knowledge involved in the claimed inventions, and for a demonstration of compliance with
the applicable domestic procedures in the Member where the genetic resources and traditionalknowledge originate.
Compared to other alternatives, Article 29 of the TRIPS Agreement seems to be the most
suitable for an appropriate modification to contain these rights and obligations, by including the
requirements for equity, disclosure of the community of origin of the genetic resources and traditional
knowledge, and a demonstration of compliance with applicable domestic procedures.  These
requirements would formalise what in the view of the Group should be expected of all such patentapplications.  Given the failure of certain domestic systems to prevent patents that constituted a
misappropriation of genetic resources and traditional knowledge, these requirements would be useful
in preventing or minimising the repetition or even the increase of such cases.
The Group suggests that Article 29 be modified by adding the following as paragraph 3:
3. Members shall require an applicant for a patent to disclose the country and
area of origin of any biological resources and traditional knowledge used or involved in
the invention, and to provide confirmation of compliance with all access regulations in
the country of origin.
IV. WAY FORWARD
The Africa Group believes that the Council for TRIPS would do well to show results for its
work so far and to take steps to resolve any outstanding issues.
Regarding the issues where the views of delegations suggest a common understanding, the
Council for TRIPS can agree upon a Decision and report the adoption of the Decision to the TNC.
The Decision would immediately become operati onal. This communication has set out the areas
where delegations may wish to consider agreeing upon a common understanding.  However, such a
Decision would have to be worthwhile in terms of ad equately addressing most of the issues that have
arisen in the review so far, and further the Decision would have to contain a clear commitment to
continue the review and finalise it within an agreed timeframe.
For those areas where there is no common understanding, the Council for TRIPS should
continue its work but doing so within a specific time frame that addresses the grave concern of
delegations on the slow progress with the work programme.  The important tasks that the Council for
TRIPS should focus on should include a Decision on protecting traditional knowledge and the
amendment to paragraph (b) to prohibit patents on life forms. The annex to this communicationcontains a draft for a Decision on traditional knowledge that could be a basis for further discussion.IP/C/W/404
Page 7
Annex
Draft
DECISION ON TRADITIONAL KNOWLEDGE
1. This Decision, adopted as a result of the review of Article 27.3(b), shall be an integral part of
the TRIPS Agreement.
2. Rights given effect and to be protected by all Members
(a) Traditional knowledge is a category of intellectual property rights hereby recognised
and protected in accordance with this Decision.  Members shall protect and enforce rights in respect
of traditional knowledge in accordance with the provisions of this Decision.  Members may adopt
sui generis  systems for more extensive protection.
(b) In co-operation with all relevant international and civil society organizations
particularly associations of local communities and traditional practitioners, the WTO shall prepare and
adopt programmes for the development and review, as may be necessary from time to time, of the
protection of traditional knowledge and enforcement of rights conferred under this Decision in respect
of traditional knowledge.
(c) The rights relating to traditional knowledge that shall be protected include, in relation
to any local community or traditional practitioners, the right for such community or practitioner to:
(i) respect for their will and decisions on whether or not to commercialise
their knowledge;
(ii) respect and honour of any sanctity they attach to their knowledge,(iii) give prior and informed consent for any access and any intended use of
their knowledge,
(iii) full remuneration for their knowledge,(iv) prevent third parties from using, offering for sale, selling, exporting, and
importing, their knowledge and any article or product in which their
knowledge is input, unless all the requirements under this Decision have
been met.
(d) The existence of traditional knowledge in any form or at any stage shall defeat the
novelty and inventiveness requirements for purposes of patents and originality for purposes of
copyrights under any laws of all Members.
(e) Where:
(i) traditional knowledge has been a lead to the invention,(ii) any invention that qualifies for patentability has derived at any stage from
traditional knowledge,
(iii) any invention is based on in situ genetic resources of any Member,IP/C/W/404
Page 8
then, no intellectual property rights shall be granted or protected in any Member unless the
requirements on access to genetic resources under the Convention on Biological Diversity have been
fully complied with.
(f) Members shall require in their laws that any intellectual property rights granted in
breach of this Decision shall, without any further requirements as to procedure other than this
provision, be cancelled forthwith.  No intellectual pr operty rights shall be granted or protected without
due recognition of the traditional knowledge involved in accordance with this Decision.  In
accordance with this paragraph, Members shall provide for the ex-officio cancellation of any
intellectual property rights that breach this Decision.
4. Documentation of Traditional Knowledge and Local Communities
(a) Members may document traditional knowledge in their territories and designate a
competent authority to continually carry out this exercise.  Members may also maintain registers of
local communities and traditional practitioners for administrative purposes, but non-registration shall
not prejudice the rights of any local community or traditional practitioner under this Decision.
(b) Members may make appropriate arrangements for the establishment and maintenance
of electronic and other registers on traditional knowledge that shall be public documents subject to
reasonable regulations they may put in place, and for applications from any local communities or
traditional practitioners to the competent auth ority to register their traditional knowledge.
(c) Local communities and the competent authorities shall have an exclusive right in
perpetuity to any information that is documented or entered in the register, to prevent any access or
use they have not expressly authorised or any application that is inconsistent with the rights of local
communities and traditional practitioners under this Decision.
5. Institutional Arrangements
(a) The Committee on Traditional Knowledge and Genetic Resources is hereby
established.
(b) Its functions shall include:
(i) developing and reviewing this Decision and any other instruments,(ii) overseeing and making recommendations on the protection of traditional
knowledge and enforcement of the rights of the Members,
(iii) following activities and developments in relevant regional and international
intergovernmental organizations,
(iv) providing forums for dialogue on traditional knowledge, and(v) conducting studies and making recommendations to Members and relevant
organizations on protection of traditional knowledge under the provisions and
within the framework of other inte rnational and regional instruments.
(c) Every Member shall establish a competent authority and a central enquiry point to
provide information and carry out designated functions arising from this Decision.IP/C/W/404
Page 9
6. Meaning
(a) Traditional knowledge includes, but is not to be limited to, knowledge systems,
innovations and adaptations, information, and practices of local communities or indigenous
communities as understood within the territory of the Member, relating to any type of medicine orcures, agriculture, use and conservation of biological material and diversity, and any other aspect of
economic, social, cultural, aesthetic or other value.
(b) Traditional knowledge is not static but continues to evolve, and its nature relates to
the manner it develops rather than to its antiquity.
(c) For purposes of this Decision, traditional knowledge includes folklore unless the
context requires otherwise or it is provided otherwise; and local communities includes indigenous
peoples subject to definitions that Member may adopt within their domestic laws.
__________