RESTRICTEDWORLD TRADE
ORGANIZATIONIP/C/W/164
29 October 1999
(99-4698)
Council for Trade-Related Aspects
of Intellectual Property RightsOriginal:  English
REVIEW OF THE PROVISIONS OF ARTICLE 27.3(b)
Communication from Brazil
The following communication, dated 22 October 1999, has been received from the Permanent
Mission of Brazil.
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Without prejudice to the discussions undertaken at the General Council on the issues related
to the review of Article 27.3(b) of the TRIPS Agreem ent, Brazil would like to highlight some of the
useful contributions recently put forward at the WTO and other fora related to this issue.
The documents circulated by the Kenyan,1 Indian2 and US3 delegations yesterday present
many interesting considerations on the issues of pa tentability of lifeforms, the relationship between
the CBD and the TRIPS Agreement, and protection of plant varieties, among other issues.  Brazil
would like to present a few thoughts on those elements.
On the issue of patentability of lifeforms, the Brazilian Law on Industrial Property, along the
same lines as the TRIPS Agreement, excludes from patentability the whole or parts of lifeforms other
than transgenic micro-organisms that comply with the three requirements of patentability (novelty,
inventive step and industrial applicability) and that are not mere discoveries.  In this sense, Brazil
considers that both the proposal of excluding patentability for all lifeforms, as proposed by India, and
the proposal of extending patentability to all lifeforms, as proposed by the United States, would not besatisfactory for Brazil.  The optimal outcome for Br azil in this particular issue would be to maintain
the status quo of Article 27.3(b) as it is today.
On the relationship between the TRIPS Agreement and the Convention on Biological
Diversity, Brazil is endeavouring its best efforts to implement and enforce the TRIPS Agreement.  Atthe same time, Brazil has the greatest biodiversity on the planet and is the first signatory of the CBD.
As a Member with vested interests in both Agreements, Brazil considers that the TRIPS Agreement
could be an important instrument to provide effect iveness to Article 8(j) of the CBD, thus ensuring
that both agreements are mutually supportive.  Furthermore, Brazil is of the view that the
incorporation of some notions of the CBD in the TRIPS Agreement should not necessarily entail areduction of the existing standards for protection of intellectual property rights.  In fact, Brazil
considers that a broader scope of protection that includes elements of particular interest to developing
countries would be highly beneficial for the strengthening of the intellectual property system under
the WTO.
./.
                                                     
1 Document IP/C/W/163.
2 Document IP/C/W/161.
3 Document IP/C/W/162.IP/C/W/164
Page 2
As regards to the issue of traditional knowledge,  the US document refers to the possibility of
establishing contracts with the sovereign entity that grants that access.  In fact, Brazil is undertaking
discussions at the national level on draft laws regarding this issue.  However important such
mechanisms may be, Brazil understands that they are not sufficient to provide a fair and equitable
partition of the benefits between the users and ow ners of traditional knowledge.  Consequently,
developing countries are seeking stronger multilateral protection for such knowledge under the TRIPS
agreement.
Several countries have mentioned the issue of protection of plant varieties by an effective
sui generis system.  Brazil has established a Law on the Protection of New Varieties of Plants in 1997
and has recently adhered to the Convention on the Protection of New Varieties of Plants (UPOV).
The sui generis protection in Brazil resulted in an effective protection of new plant varieties that have
been developed in Brazil.  Although Brazil considers that the UPOV system should always be
considered as an important reference under the review of Article 27.3(b), the national experiences of
other countries in developing other sui generis systems should not be excluded as important
contributions to the discussions.
In this connection, Brazil would like to call the attention of the Members of this Council to
the Background Note on “ The Relationship between the Convention on Biological Diversity (CBD)
and the TRIPS Agreement, with a focus on Article 27.3(b) ” (document WT/CTE/W/125), prepared by
the Secretariat of the Committee on Trade and Environment for the CTE's meeting on 12 October.
This document provides a useful overview of exis ting international instruments relevant to plant
variety protection, as well as country studies on the implementation of sui generis  systems based on
the UPOV Convention, and examples of legislation enacted to implement the CBD.  Brazil considers
that this paper is a useful input for delegations in further discussions on Article 27.3(b).
In the context of the preparations for the next Ministerial Conference in Seattle, Brazil
welcomes the proposals by several delegations to discuss the review of Article 27.3(b), particularly on
the issue of protection of traditional knowledge.  The fact that a significant number of delegations like
Venezuela, Peru and Ecuador, India, Cuba, Kenya (on behalf of the African Group) and Egypt, among
others, have expressed their wish to include issues related to Article 27.3(b) demonstrates the
importance of such discussions for developing countries.
Among those proposals, Brazil would like to single out the proposal by Peru and Ecuador,
which presents sound arguments in favor of the discussions of traditional knowledge at the WTO.
The paper suggests the establishment of studies, in  collaboration with other relevant international
organizations, in order to issue recommendations on the most appropriate means of protecting
traditional knowledge as an object of intellectual property rights.  Brazil considers that such studies
could be a first step for the better understanding of all Members on the benefits of the incorporation ofthe traditional knowledge in the intellectual property system.
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