WORLD TRADE
ORGANIZATIONIP/C/W/400
28 May 2003
(03-2871)
Council for Trade-Related Aspects
of Intellectual Property RightsOriginal:  English
ARTICLE 27.3(b), THE RELATIONSHIP  BETWEEN THE TRIPS AGREEMENT
AND THE CONVENTION ON BIOLOGICAL DIVERSITY, AND
THE PROTECTION OF TRADITIONAL KNOWLEDGE
Communication from Switzerland
The following communication, dated 21 May 2003, has been received from the Permanent
Mission of Switzerland with the request that it be circulated to Members.
_______________
EXECUTIVE SUMMARY
The present communication from Switzerland complements the communication of
15 June 20011 on the review of Article 27.3(b) and addresses the issues set out in paragraph 19 of the
Doha Ministerial Declaration.  As a concrete and practical measure, Switzerland presents proposals
regarding the declaration of the source of genetic resources and/or traditional knowledge in patent
applications.
I. A FAIR AND BALANCED APPROACH
With regard to the issues addressed in this communication, Switzerland holds the view that a
fair and balanced approach must be taken.  On one hand, Switzerland supports the effective protectionof biotechnological innovations through intellectual pr operty rights, in particular patents.  Switzerland
considers the current wording of Article 27.3(b) to provide a well-balanced solution that takes into
account the interests and needs of all Members of the WTO.  On the other hand, a fair and balanced
approach necessitates effective, efficient, practical and timely solutions to the issues arising in the
context of access to genetic resources and traditional knowledge and the fair and equitable sharing ofthe benefits arising out of their utilization.
II. PROPOSALS REGARDING THE DECLARATION OF THE SOURCE OF GENETIC
RESOURCES AND TRADITIONAL KNOWLEDGE IN PATENT APPLICATIONS
Switzerland proposes to explicitly enable the national patent legislation to require the
declaration of the source of genetic resources and traditional knowledge in patent applications.  More
specifically, Switzerland proposes to amend the Regulations under the Patent Cooperation Treaty
(PCT) of the World Intellectual Property Organization (WIPO) to explicitly enable the Contracting
Parties of the PCT to require patent applicants, upon or after entry of the international application into
                                                     
1 See document IP/C/W/284.IP/C/W/400
Page 2
the national phase of the PCT procedure, to declare the source of genetic resources and/or traditional
knowledge, if an invention is based on or uses such  resource or knowledge.  Furthermore, Switzerland
proposes to afford applicants the possibility of satisfying this requirement at the time of filing an
international patent application or later during the in ternational phase.  In case an international patent
application does not contain the required declaration, national law may foresee that in the nationalphase the application is not processed any further until the patent applicant has furnished the required
declaration.
By reference, the proposed amendment to the PCT would also apply to the Patent Law Treaty
(PLT) of WIPO.  Accordingly, the Contracting Parties of the PLT would be able to require in their
national patent laws that patent applicants declare the source of genetic resources and/or traditional
knowledge in national patent applications.  Based on the PLT, national law may foresee that thevalidity of granted patents is affected by a lacking or incorrect declaration of the source, if this is due
to fraudulent intention.
These proposals are to be seen in the wider context of the efforts of various international
forums in the area of access to genetic resources and traditional knowledge and the fair and equitable
sharing of the benefits arising out of their uti lization, including in particular the Convention on
Biological Diversity (CBD);  th e Food and Agriculture Organization (FAO);  the Intergovernmental
Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore
(IGC) of WIPO;  and the TRIPS Council.  The proposals are intended to enhance the cooperation
between these international forums and the mutual  supportiveness of the applicable international
agreements.
III. THE FARMERS' PRIVILEGE
In the view of Switzerland, the current wording of Article 30 of the TRIPS Agreement allows
the national legislator to introduce the Farmers' Privilege in the national patent law.  In the ongoing
revision of the Swiss Federal Law on Patents for Inventions (LPI), it is foreseen to introduce the
Farmers' Privilege in the Swiss patent legislation.
IV. THE PROTECTION OF TRADITIONAL KNOWLEDGE
In the view of Switzerland, the IGC of WIPO is  the primary international forum to deal with
the intellectual property-related issues of the protection of traditional knowledge.  The work of theTRIPS Council on these issues should benefit from and draw upon the work being carried out by the
IGC of WIPO.  This approach will help to avoid the duplication of efforts and outcomes.
At the outset of the discussions on the protection of traditional knowledge, it is necessary to at
least establish a working definition of the term "traditional knowledge" and to determine theobjectives of this protection.  Only the clarification of these two very fundamental issues will allow to
focus the discussions and bring the results necessary for an effective protection of traditional
knowledge.
With regard to specific measures for the protection of traditional knowledge, Switzerland
considers the international gateway it proposed and described in greater detail in its communication of
15 June 2001, to be of crucial importance.
V. THE RELATIONSHIP BETWEEN THE TRIPS AGREEMENT AND THE
CONVENTION ON BIOLOGICAL DIVERSITY
Switzerland generally takes the view that the relationship between the trade regime as
established by the WTO and multilateral environmental agreements (MEAs) should be governed byIP/C/W/400
Page 3
the principles of no hierarchy, mutual supportiveness and deference.  With regard to the TRIPS
Agreement and the CBD, Switzerland thus holds the view that they can and should be implemented
without conflict.  Accordingly, there is no need to  modify the provisions of either one of these
agreements.IP/C/W/400
Page 4
TABLE OF CONTENTS
OVERVI EW....................................................................................................................... ....................5
I. A FAIR AND BAL ANCED APPR OACH ..............................................................................5
II. PROPOSALS BY SWITZERLAND REGARDING THE DECLARATION OF
THE SOURCE OF GENETIC RESOURCES AND TRADITIONAL
KNOWLEDGE IN PATENT APPLICATIONS UNDER THE PATENT
COOPERATION TREATY (PCT) OF THE WORLD INTELLECTUAL
PROPERTY ORGANIZATION (WIPO)...............................................................................5
(1) OVERVIEW ............................................................................................................................... ....5
(2) SUMMARY OF THE PROPOSALS BY SWITZERLAND .......................................................................6
(3) APPLICATION BY REFERENCE OF THE PROPOSALS TO THE PATENT LAW TREATY (PLT)
OF WIPO ............................................................................................................................... ........7
(4) ASSESSMENT OF THE PROPOSALS BY SWITZERLAND ...................................................................7
(5) ESTABLISHMENT OF A LIST OF GOVERNMENT AGENCIES COMPETENT TO RECEIVE
INFORMATION ON DECLARATION ................................................................................................7
II. POSITION OF SWITZERLAND WITH REGARD TO OTHER
TRANSPARENCY MEASURES PROPOSED UNDER PATENT LAW:
EVIDENCE OF PRIOR INFORMED CONSENT (PIC) AND OF FAIR AND
EQUITABLE BENEFIT SHARING IN PATENT APPLICAT IONS.................................8
(1) EVIDENCE OF PRIOR INFORMED CONSENT (PIC) ..........................................................................8
(2) EVIDENCE OF FAIR AND EQUITABLE BENEFIT SHARING ..............................................................9
III. THE FARMERS' PRIVILEGE.............................................................................................10
IV. THE PROTECTION OF TRADITIONAL KNOWLED GE ..............................................11
(1) INTERNATIONAL FORUMS COMPETENT TO DISCUSS THE INTELLECTUAL PROPERTY -
RELATED ISSUES OF THE PROTECTION OF TRADITIONAL KNOWLEDGE .....................................11
(2) TWO FUNDAMENTAL ISSUES :  WORKING DEFINITION OF "TRADITIONAL KNOWLEDGE "
AND OBJECTIVES OF ITS PROTECTION ........................................................................................12
(3) THE DETERMINATION OF PRIOR ART :  INTERNATIONAL GATEWAY FOR TRADITIONAL
KNOWLEDGE ..............................................................................................................................1 2
V. THE RELATIONSHIP BETWEEN THE TRIPS AGREEMENT AND THE
CONVENTION ON BIOLOG ICAL DIVERSITY..............................................................13IP/C/W/400
Page 5
OVERVIEW
1. Switzerland expressed its views on the review of Article 27.3(b) of the Agreement on
Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) in its communication of
15 June 20012, and in several oral interventions to the TRIPS Council.  This present communication
further elaborates the views of Switzerland on Article 27.3(b) and addresses the issues set out in
paragraph 19 of the Doha Ministerial Declaratio n, that is, the relationship between the TRIPS
Agreement and the Convention on Biological Diversity (CBD), the protection of traditional
knowledge, and other relevant new developments.  As a practical measure supporting a fair and
balanced approach, Switzerland presents proposals regarding the declaration of the source of genetic
resources and/or traditional knowledge in patent applications, if an invention is based on or uses such
resources or knowledge.
I. A FAIR AND BALANCED APPROACH
2. With regard to the issues addressed in this communication, Switzerland holds the view that a
fair and balanced approach must be taken.  On one hand, Switzerland supports the effective protection
of biotechnological innovations through intellectual property rights, in particular patents.  As stated in
its communication of 15 June 2001, Switzerland considers the current wording of Article 27.3(b) toprovide a well-balanced solution, which takes into account the interests and needs of all Members,
whether they are developing or developed countries.  Switzerland is thus in favor of the current
wording of Article 27.3(b) and the existing level of protection of biotechnological inventions and the
flexibility of Members it provides for.
3. On the other hand, a fair and balanced approach necessitates effective, efficient, practical and
timely solutions to the issues arising in the cont ext of access to genetic resources and traditional
knowledge and the fair and equitable sharing of the benefits arising out of their utilization.  Given the
complexity and multiplicity of issues to be dealt with in this regard, their examination should not
imply that satisfactory answers will be found to all issues at the same time and in a single forum.
Furthermore, given the variety of mechanisms and measures and competent institutions, which couldbe instrumental to find appropriate solutions, a pragmatic, phased approach could be worthwhile.
This is why Switzerland has been actively supporting efforts to find these solutions in various
international forums, including the CBD; the Food and Agriculture Organization (FAO);  the
Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge
and Folklore (IGC) of the World Intellectual Property Organization (WIPO);  and the TRIPS Council.
II. PROPOSALS BY SWITZERLAND REGARDING THE DECLARATION OF THE
SOURCE OF GENETIC RESOURCES AND TRADITIONAL KNOWLEDGE INPATENT APPLICATIONS UNDER THE PATENT COOPERATION TREATY (PCT)
OF THE WORLD INTELLECTUAL PROPERTY ORGANIZATION (WIPO)
3
(1) OVERVIEW
4. The just mentioned international forums have been addressing the need for and the realization
of measures that increase transparency in the context of access to genetic resources and/or traditionalknowledge and the sharing of the benefits arising out of their utilization, in particular with regard to
the obligations of the users of genetic resources and traditional knowledge (hereinafter "transparency
measures").  Some of the proposals put forward concern patent law.  They include:
                                                     
2 See document IP/C/W/284.
3 A more detailed description of these proposals is contained in the Annex to this communication.IP/C/W/400
Page 6
- the declaration of the source of genetic resources and/or traditional knowledge;
- evidence of prior informed consent (PIC) from the competent authority in the country
of origin of the genetic resource;  and
- evidence of fair and equitable benefit sharing;
in patent applications, if an invention is based on or uses such resources or knowledge.4
5. Switzerland holds the view that transparency measures are an important element in the fair
and balanced approach that should be taken with regard to the issues addressed in this
communication.  This is why Switzerland considered in detail the various options available for such
measures and their possible modalities and implications.  Based on these considerations, Switzerland
submitted proposals to the fourth session of the Working Group on Reform of the PCT held between
19 and 23 May 2003.  These proposals are summarized below.
6. By submitting these proposals, Switzerland intends to continue its active and constructive
participation in the discussions on the issues arising in the context of access to genetic resources andtraditional knowledge and the fair and equitable sharing of the benefits arising out of their utilization.
These proposals are a clear sign of the willingness of Switzerland to find solutions to issues that are of
importance to developing countries.  In the view of Switzerland, the proposals submitted present one
simple and practical solution that could be introduced in a timely manner and would not require
extensive changes to the provisions of the releva nt international agreements.  Additionally, because
the proposed transparency measures do not require modifications of the TRIPS Agreement, they are
further evidence of the flexibility that this agreement provides for.
(2)
SUMMARY OF THE PROPOSALS BY SWITZERLAND
7. Switzerland proposes to enable the national patent legislation to require the declaration of the
source of genetic resources and traditional knowledge in patent applications.  More specifically,
Switzerland proposes to amend the Regulations under the Patent Cooperation Treaty (PCT) to
explicitly enable the Contracting Parties of the PCT to require patent applicants, upon or after entry of
the international application into the national phase of the PCT procedure, to declare the source of
genetic resources and/or traditional knowledge, if an invention is based on or uses such resource or
knowledge.5  Furthermore, Switzerland proposes to afford  applicants the possibility of satisfying this
requirement at the time of filing an international pa tent application or later during the international
                                                     
4 See paragraph 10 of the communication by Brazil on behalf of Brazil, China, Cuba, Dominican
Republic, Ecuador, India, Pakistan, Thailand, Venezuela, Zambia and Zimbabwe (document IP/C/W/356).  Forsimilar such proposals see footnotes 37-39 of document IP/C/W/368.
5 The proposed new subparagraph (g) of Rule 51 bis.1 of the Regulations under the PCT would read as
follows:
"(g) The national law applicable by the design ated Office may, in accordance with Article 27,
require the applicant:(i) to declare the source of a specific genetic resource to which the inventor has had 
access, if an invention is directly based on such a resource; if such source is 
unknown, this shall be declared accordingly;
(ii) to declare the source of knowledge, innovations and practices of indigenous and local
communities relevant for the conservation and sustainable use of biological diversity,if the inventor knows that an invention is directly based on such knowledge, innovations and practices; if such source is unknown, this shall be declared 
accordingly."IP/C/W/400
Page 7
phase.6  In case an international patent application does not contain the required declaration, national
law may foresee that in the national phase the application is not processed any further until the patent
applicant has furnished the required declaration.
(3) APPLICATION BY REFERENCE OF THE PROPOSALS TO THE PATENT LAW TREATY (PLT) OF WIPO
8. With regard to " requirements relating to form or contents of an application, " Article 6.1 of
the PLT refers to the provisions of the PCT, in particular Rules 4.1 and 51 bis of the Regulations under
the PCT.  Based on the reference to the PCT contained in Article 6.1 of the PLT, the proposed
Rule 51 bis.1(g) of the PCT would also apply to the PLT.  The Contracting Parties of the PLT would
thus be able to introduce in their national patent laws a declaration requirement that applies to national
patent applications.  Based on Article 10 of the PLT, the national patent law may foresee that the
validity of a granted patent is affected by a lacking or incorrect declaration of the source, if this is due
to "fraudulent intention" .  This could, for example, be the case if the patent applicant submits an
intentional wrongful declaration that the source is unknown .
(4) ASSESSMENT OF THE PROPOSALS BY SWITZERLAND
9. The proposals made by Switzerland will enable the Contracting Parties of relevant
international agreements, including the TRIPS Agreement, the PCT, the PLT, the CBD and theFAO-IT, to fulfill their respective obligations.  This applies in particular to the Articles 27.1 and 62.1
of the TRIPS Agreement as well as Articles 8(j), 15.4, 15.5, 15.7 and 16.5 of the CBD.  These
proposals provide the means to ensure that the international agreements on intellectual property and
the CBD can be implemented in a mutually supportiv e way.  Furthermore, the Swiss proposals will
enable the Contracting Parties of the CBD to im plement the provisions of the "Bonn Guidelines on
Access to Genetic Resources and Fair and Equitable Sharing of the Benefits Arising Out of Their
Utilization" (Bonn Guidelines), in particular their paragraph 16(d), as well as paragraph 46 of
Decision VI/10 and paragraph 1 of Section C of Deci sion VI/24 adopted by COP6.  And finally, the
possibility to require the declaration of the source will also support the determination of prior art with
regard to traditional knowledge, as it will simplify searching the databases on traditional knowledgethat are increasingly being established at the local, regional and national level.
10. The implementation of the proposals submitted by Switzerland in the national legislation may
require legal and technical cooperation and assistance to developing and least-developed countries.
The same applies to other measures introduced at the national level with regard to genetic resources
and traditional knowledge, such as for example the creation and management of databases on
traditional knowledge.  The implementation of national legislation and measures concerning genetic
resources and traditional knowledge may, in many cases, only be achieved if national institutions arereinforced and public-private partnerships are developed.  Switzerland therefore invites the
appropriate international forums to provide, upon request by governments, such cooperation and
assistance.
(5)
ESTABLISHMENT OF A LIST OF GOVERNME NT AGENCIES COMPETENT TO RECEIVE
INFORMATION ON DECLARATION
11. The proposed transparency measure could be further strengthened by establishing a list of
government agencies competent to obtain inform ation about patent applications containing a
                                                     
6 The proposed new subparagraph (vi) of Rule 4.17 of the Regulations under the PCT would read as
follows:
"(vi) a declaration as to the source of a specific genetic resource and/or knowledge, innovations and
practices of indigenous and local communities relevant for the conservation and sustainable
use of biological diversity, as referred to in Rule 51 bis.1(g)."IP/C/W/400
Page 8
declaration of the source of genetic resources and/or traditional knowledge.  For easy reference, this
list could be made accessible on the internet.  Patent offices receiving patent applications containing
such declaration could inform the competent government agency that the respective State is declared
as the source.  This information could be provided in a standardized letter sent to the competent
government agency.  Switzerland invites WIPO, in close collaboration with the CBD, to furtherconsider the possible establishment of such a list of competent government agencies.
II. POSITION OF SWITZERLAND WITH REGARD TO OTHER TRANSPARENCY
MEASURES PROPOSED UNDER PATENT LAW:  EVIDENCE OF PRIOR
INFORMED CONSENT (PIC) AND OF FAIR AND EQUITABLE BENEFIT
SHARING IN PATENT APPLICATIONS
12. In the discussions on transparency measures, it has been proposed to require patent applicants
– in addition to disclosing the source of genetic resources and traditional knowledge – to provideevidence of:  (1) PIC of the country providing the genetic resources;  and (2) fair and equitable benefit
sharing.
7  With regard to these proposals, Switzerland holds the following views:
(1) EVIDENCE OF PRIOR INFORMED CONSENT (PIC)
13. Article 15.5 of the CBD states that "[a]ccess to genetic resources shall be subject to prior
informed consent of the Contracting Party provid ing such resources, unless otherwise determined by
that Party".  Contracting Parties may thus decide that PIC is not required under their national law.
Additionally, the CBD leaves it up to the Contracting Parties to specify the elements and modalities of
their national system of PIC.  The Bonn Guidelines contain more detailed provisions on PIC in
paragraphs 24 to 40;  according to paragraph 25, these provisions are intended to assist Contracting
Parties in the establishment of a national system of PIC.  Some Contracting Parties of the CBDalready implemented national legislation on PIC, while others have not done so.  Existing and future
national systems on PIC can be expected to differ substantially;  some of the national systems of PIC
may provide that PIC is not necessary at all or only in certain cases, whereas other national systems
may spell out in detail the elements and modalities of PIC.
14. Transparency measures have been called for that enable the Contracting Parties of the CBD to
verify whether their national system of PIC has been adhered to.  In this context, Brazil proposes to
"require that an applicant for a patent relating to biological materials or to traditional knowledge
shall provide, as a condition to acquiring patent ri ghts:  [...] (ii) evidence of prior informed consent
through approval of authorities under the relevant national regimes".
7  According to this proposal,
providing the required evidence would be a condition for acquiring patent rights.  Patent granting
authorities would thus have to verify whether the provided evidence is correct and whether the
national system of PIC has been followed.  For several practical reasons, patent granting authoritiesare not in a position to carry out this verification:
- These authorities are neither designed to carry out this task nor do they have the
necessary legal and technical competence to determine the correctness of the
provided evidence.
- Patent granting authorities would need to search for and have access to the various
national legislations on PIC and would have to familiarize themselves with each of
the national systems of PIC each time a patent application is submitted containing
such evidence.  This would burden patent granting authorities with substantial
administrative work.
                                                     
7 See paragraph 10 of the communication by Brazil on behalf of Brazil, China, Cuba, Dominican
Republic, Ecuador, India, Pakistan, Thailand, Venezuela, Zambia and Zimbabwe (document IP/C/W/356).IP/C/W/400
Page 9
- It seems questionable whether any such determination could be done with the
necessary legal certainty.
- The requirement to provide evidence of PIC in patent applications is also problematic
with regard to the plant genetic resource s for food and agriculture (PGRFA) covered
by the International Treaty on Plant Genetic Resources for Food and Agriculture
(FAO-IT).  This treaty does not foresee that PIC must be obtained from the
Contracting Party providing the PGRFA.  Thus, if this requirement were to be
introduced, it would apply to the genetic resources covered by the CBD, but not the
PGRFA covered by the FAO-IT.  Patent granting authorities would thus not only
have to verify whether the provided evidence is correct, but also whether the geneticresources in question were obtained according to the provisions of the CBD or the
FAO-IT.
15. Consequently, the task of verifying whether the national systems of PIC have been adhered to
can best be done by the Contracting Party providing the genetic resources in accordance withArticle 15.5 of the CBD.  In order to simplify this task, Switzerland proposed at the fourth session of
the Working Group on Reform of PCT to explicitly enable the national patent legislation to require
the declaration of the source of genetic resources and traditional knowledge in patent applications.
Furthermore, it proposed discussion on the establishment of a list of government agencies that could
be informed by the office receiving a patent application containing such a declaration.  Thedeclaration and the respective information will allow the Contracting Parties providing the genetic
resources to verify whether the patent applicant has fulfilled the requirements and procedures of their
national system of PIC.  It is therefore neither necessary nor feasible to require, in addition to the
declaration of the source of genetic resources, evidence of PIC in patent applications.  This is
acknowledged in Paragraph 1 of Section C of Decision VI/24 adopted by COP6 of the CBD,
according to which the declaration of the source of genetic resources in applications for intellectual
property rights is "a possible contribution to tracking compliance with prior informed consent and the
mutually agreed terms on which access to those resources was granted" .  The solution proposed by
Switzerland is also in accordance with Article 62.1 of the TRIPS Agreement, according to which
"Members may require, as a condition of the acquisition or maintenance of intellectual property
rights [...] compliance with  reasonable procedures and formalities" .
(2)
EVIDENCE OF FAIR AND EQUITABLE BENEFIT SHARING
16. According to Article 15.7 of the CBD, the sharing of  the benefits arising out of the utilization
of genetic resources shall be on mutually agreed terms.  Generally, the mutually agreed terms will be
laid down in a contract between the provider and th e user of the genetic resources in question.  The
relationship between the provider and the user is thus of a purely contractual nature, and theenforcement of that contract the task of the respective contracting parties.
17. In order to simplify the task of these contracting parties when verifying whether the other
contracting party is complying with its benef it sharing obligations, and when enforcing these
obligations, suitable transparency measures may be of use.  In this context, Brazil proposes to
"require that an applicant for a patent relating to biological materials or to traditional knowledgeshall provide, as a condition to acquiring patent rights:  [...] (iii) evidence of fair and equitable
benefit sharing under the relevant national regimes".
8
                                                     
8 See paragraph 10 of the communication by Brazil on behalf of Brazil, China, Cuba, Dominican
Republic, Ecuador, India, Pakistan, Thailand, Venezuela, Zambia and Zimbabwe (document IP/C/W/356).IP/C/W/400
Page 10
18. The proposal does not specify whether the patent applicant must provide evidence of the fact
that benefits have actually been shared in a fair and equitable way, or whether evidence must be
provided that in the mutually agreed terms provisi on has been made for benefits to be shared in the
future in accordance with the relevant national regime s.  In the first case, it has to be considered that
benefits can only be shared if and when they arise, that is, once a product is being commercialized.9
In contrast, at the time when a patent application is submitted to the patent granting authority, the
commercial success of the invention is generally unknown and no monetary benefits will have arisen
yet.  Furthermore, not all patents that are applied for will be granted, and a large part of the granted
patents will never be commercialized.  In most instances, the patent applicant will thus not be able to
provide evidence that benefits have actually been shared in a fair and equitable way at the point in
time when submitting a patent application.  In the second case, the proposed requirement could be met
by submitting a copy of the contract concluded between the provider and user of genetic resources.
19. In either case, the following practical and legal problems arise:  According to the Brazilian
proposal, providing this evidence would be a condition for acquiring patent rights.  The patent
granting authority would thus have to verify whether the provided evidence is correct and whether the
sharing of the benefits is "fair and equitable" and in accordance with "the relevant national regime" .
Patent granting authorities, however, will generally be ill equipped to determine the correctness of theprovided evidence.  Benefit sharing is on mutually agreed terms between the provider and the user of
the genetic resource or traditional knowledge, that is, for example, between a State agency and a
university or a private company, and may vary, among others, with regard to the form of benefits
shared, the timing, or other conditions.  In many cases, these conditions remain confidential and are
thus not accessible by the patent granting authority.  Furthermore, what has to be considered "fair andequitable" can only be determined on a case by case basis
10, and, because of the contractual
autonomy, is primarily the competence and task of the contracting parties to the contract containing
the mutually agreed terms on benefit sharing.  Any such determination by the patent granting
authorities would unduly impair this contractual autonomy.
20. To avoid these practical and legal problems, Switzerland proposed at the fourth session of the
Working Group on Reform of PCT to explicitly enable the national patent legislation to require the
declaration of the source of genetic resources and traditional knowledge in patent applications.
Furthermore, it proposed discussion on the establishment of a list of government agencies that could
be informed by the office receiving a patent application containing such a declaration.  In the view of
Switzerland, the declaration of the source and the respective information will allow contracting parties
to a contract on access and benefit sharing to verify whether the other contracting party is complying
with its obligations arising under that contract, and will thus assist in and simplify the enforcement ofthese obligations.  Should patent applicants additionally be required to provide evidence of fair and
equitable benefit sharing in patent applications, they would have to submit double and triple
information that would bring little advantage to the contracting parties of the contract regulating
access and benefit sharing with regard to genetic resources.  Furthermore, such an additional
requirement would likely be contrary to Article 62.1 of the TRIPS Agreement, which only allows for"reasonable procedures and formalities" .
III. THE FARMERS' PRIVILEGE
21. As stated above, Switzerland holds the view that  with regard to the issues addressed in this
communication, a fair and balanced approach must be taken.  One possible measure to achieve this
approach is the so-called "Farmers' Privilege".  In the ongoing revision of the Swiss Federal Law on
                                                     
9 This is expressly stated in Article 13.2(d)(ii) of the FAO-IT.
10 This is acknowledged by the Bonn Guidelines, which state in paragraph 45 that "[m]utually agreed
terms could cover the conditions, obligations, procedures, types, timing, distribution and mechanisms of benefits
to be shared.  These will vary depending on what is regarded as fair and equitable in light of the circumstances".IP/C/W/400
Page 11
Patents for Inventions (LPI), it is foreseen to in troduce the Farmers' Privilege in the Swiss patent
legislation.
22. According to Article 30 of the TRIPS Agreement, "Members may provide limited exceptions
to the exclusive rights conferred by a patent, provided that such exceptions do not unreasonably
conflict with a normal exploitation of the patent and do not unreasonably prejudice the legitimateinterests of the patent owner, taking account of the legitimate interests of third parties" .  In the view
of Switzerland, the Farmers' Privilege as foreseen in the draft for a revised LPI is covered by this
provision.  There is thus no need to change the wording of the TRIPS Agreement to allow the national
legislator to introduce the Farmers’ Privilege in national patent laws.
IV. THE PROTECTION OF TRADITIONAL KNOWLEDGE
23. In the view of Switzerland, the realization of effective and timely mechanisms and measures
to protect traditional knowledge are a further importa nt element in the fair and balanced approach that
was advanced above.  In this respect, Switzerland welcomes the mandate given to the TRIPS Council
in paragraph 19 of the Doha Ministerial Declarati on to examine the issue of traditional knowledge in
pursuing its work programme.
(1)
INTERNATIONAL FORUMS COMPETENT TO DISCUSS THE INTELLECTUAL PROPERTY -RELATED
ISSUES OF THE PROTECTION OF TRADITIONAL KNOWLEDGE
24. Various international forums are discussing the protection of traditional knowledge.  They
include the IGC of WIPO, the TRIPS Council, the Ad Hoc Open-Ended Inter-Sessional Working
Group on Article 8(j) and Related Provisions of the CBD, UNCTAD and several other UN forums.
With regard to intellectual property-related issues, Switzerland holds the view that these issues should
be dealt with by the international forums competent for intellectual property, that is, the IGC of WIPOand the TRIPS Council.
25. The IGC of WIPO was established by the General Assembly of WIPO in the fall of 2000 and
held so far four sessions.  The fifth session is scheduled for July of 2003.  Since its establishment, the
IGC has been able to substantially advance the discussions on the protection of traditional knowledge.
It decided to undertake a number of tasks that will help to further clarify the issues arising andadvance the effective and efficient protection of traditional knowledge.  As the IGC is rather a
technical than a political body, it seems best suited to deal with the many technical issues related to
intellectual property that arise in the discussions on the protection of traditional knowledge.
26. In the view of Switzerland, the IGC is thus in the foreground as the international forum to
deal with the intellectual property-related issues of the protection of traditional knowledge.  The work
of the TRIPS Council on these issues should benefit from, and therefore draw upon, the work being
carried out by the IGC of WIPO.  This approach will help to avoid the duplication of efforts andoutcomes.
27. This notwithstanding, Switzerland will actively contribute to the discussions on the
intellectual property-related issues of the protec tion of traditional knowledge in the TRIPS Council:
This concerns issues which in the view of other Me mbers are not or not adequately dealt with by the
IGC and that these Members wish to address in the TRIPS Council.  Furthermore, this concerns issuesthat are directly linked to the TRIPS Agreement.IP/C/W/400
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(2) TWO FUNDAMENTAL ISSUES :  WORKING DEFINITION OF "TRADITIONAL KNOWLEDGE " AND
OBJECTIVES OF ITS PROTECTION
28. At the outset of the discussions on the prot ection of traditional knowledge, two very
fundamental issues should be clarified.  First, the establishment of at least a working definition of the
term "traditional knowledge", and, second, the determination of the objectives of the protection oftraditional knowledge.  Only the clarification of  these issues will allow to adequately focus the
discussions and bring the results necessary for an effective protection of traditional knowledge.
29. For these reasons, Switzerland proposed in different international forums, in particular the
IGC of WIPO and the CBD, to further pursue th e two issues.  Based on a Swiss proposal, the
Conference of the Parties of the CBD requests in paragraph 34(a) of Decision VI/10 the Ad Hoc
Open-Ended Inter-Sessional Working Group on Article 8(j) and Related Provisions, when addressing
the sui generis  protection of traditional knowledge, to clarify relevant terminology.  Furthermore,
Switzerland proposed that the IGC of WIPO establish at least a working definition of the term
"traditional knowledge".  It thus welcomes the decision of the IGC to further pursue work on
operational terms and definitions with regard to traditional knowledge at its future sessions.  At the
request of Switzerland, the WIPO Secretariat will furthermore prepare a document that will lay out
the possible objectives of the protection of traditional knowledge.
(3)
THE DETERMINATION OF PRIOR ART :  INTERNATIONAL GATEWAY FOR TRADITIONAL
KNOWLEDGE
30. In the past, several cases became public where patents were granted for inventions that were
based on or used traditional knowledge and that did not meet the criteria of novelty and/or inventivestep.  Generally, the granting of such "bad" patents can be traced to the lack of the accessibility of
prior art regarding this knowledge by patent authorities.  Often, traditional knowledge is only
transmitted orally and is therefore not documented in a written form;  oral information, however, may
not be accessible at all by these authorities.  Or, if it is documented in writing, it may be so in
languages that these authorities are not familiar wit h.  Therefore, even if these authorities try their
best, they may not be able to access prior art regarding traditional knowledge.
31. One way to substantially improve this situation is the collection of traditional knowledge in
databases.  Patent authorities could search these databases when dealing with patent applications
raising questions regarding traditional knowledge as an element of prior art.  Various governments,
indigenous and local communities and non-government al organizations  (NGOs) have become active
in the establishment of such databases at the local, regional and national levels.  Examples are the
"China Traditional Chinese Medicine Patents Database" of China, the "Health Heritage Database" andthe "Traditional Knowledge Digital Library" of India, the "Biozulua Database" of Venezuela, and the
"StoryBase Database" of the Tulalip Tribes of Washington State, USA.
32. The number of such databases can be expected to further increase in the future.  These
databases are likely to have differing structures and to store traditional knowledge in different forms
and formats.  Great variability of the structure and contents of these databases, however, will seriouslyhinder the efficient access of patent authorities to these databases and the effective search for prior art.
To avoid these problems, at least a minimum harmonization of the structure and contents of these
databases should be achieved.  This would also allow to make the local, regional or national databases
available through an international gateway for traditional knowledge to be administered by WIPO, as
was proposed by Switzerland in its communication to the TRIPS Council of 15 June 2001.
11
                                                     
11 See document IP/C/W/284, paragraphs 16-19.  At its third meeting held in June 2002, the IGC of
WIPO discussed document WIPO/GRTKF/IC/3/6, entitle d "Inventory of Existing Databases of Disclosed
Traditional Knowledge".  Among others, this document deals with the structure of such databases.  SwitzerlandIP/C/W/400
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V. THE RELATIONSHIP BETWEEN THE TRIPS AGREEMENT AND THE
CONVENTION ON BIOLOGICAL DIVERSITY
33. Switzerland holds the view that the TRIPS Agreement and the CBD are mutually
supportive.12  The two agreements can and should thus be implemented without conflict.
Accordingly, there is no need to modify the provisions of either one of these agreements.
34. It is sometimes asserted that the TRIPS Agreement and the CBD are at present not mutually
supportive and that therefore modifications to these agreements are necessary.13  It is claimed that
these modifications would have to be made in the TRIPS Agreement.  Such an approach would mean,
however, that the CBD is superior to the TRI PS Agreement.  Switzerland finds no grounds for any
such hierarchy between the two agreements neither in the CBD nor in the TRIPS Agreement, and
considers them to be mutually supportive instead.
35. To dispel any uncertainties that may nevertheless exist with regard to the relationship between
the WTO-rules and multilateral environmental agreements (MEAs), Switzerland proposes to clarify
this relationship through an interpretative decision to be adopted by the WTO Members. Switzerland
recalls the several proposals it submitted to the WTO's Committee on Trade and Environment (CTE)
and its Special Session on this relationship which, if accepted, would provide guidance to the dispute
settlement bodies in cases of conflict of the rules of the WTO and MEAs.
36. The existing mutual supportiveness of the CBD and the TRIPS Agreement can be enhanced
by introducing, when implementing one or both of these agreements, appropriate measures and
mechanisms promoting the objectives of the other agr eement.  This is, for example, the case with the
introduction of the requirement to declare the source of genetic resources and/or knowledge,
innovations and practices of indigenous and lo cal communities embodying traditional lifestyles
relevant for the conservation and sustainable use of biological diversity, in patent applications, if the
invention in question is based on or has used such resources or knowledge, innovations and practices,
as is proposed by Switzerland in Part II of this communication.  While such a declaration will
promote the objectives of the CBD, it is not prohibited by the TRIPS Agreement.
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notes with great satisfaction that the IGC decided to further pursue the issue of databases for traditional
knowledge, including the possible harmonization of the structures and contents of such databases and the idea ofan international gateway for traditional knowledge.
12 See also documents WT/CTE/W/139, WT/CTE/W/168 and TN/TE/W/4, which present the views of
Switzerland on the relationship between the rules of the World Trade Organization and multilateralenvironmental agreements (MEAs) in general.
13 See document IP/C/W/356.