WORLD TRADE  
ORGANIZATION  WT/GC/111 
TN/C/W/46 
IP/C/W/491 
7 May 2007 
 
 (07-1884) 
General Council Trade Negotiations Committee 
Council for Trade Related Aspects 
   of Intellectual Property Rights Original:   English 
 
  
THE RELATIONSHIP BETWEEN THE TRIPS AGREEMENT, 
THE CONVENTION ON BIOLOGICAL DIVERSITY AND 
THE PROTECTION OF T RADITIONAL KNOWLEDGE 
 
AMENDING THE TRIPS AGREEMENT TO INTRODUCE AN OBLIGATION 
TO DISCLOSE THE ORIGIN OF GENETIC RESOURCES AND 
TRADITIONAL KNOWLEDGE IN PATENT APPLICATIONS 
 
ANSWERS FROM NORWAY TO QUESTIONS POSED BY 
SWITZERLAND IN THE TRIPS COUNCIL 
  
Communication from Norway
 
  
 The following communication, dated 27 April, is  being circulated to the General Council, the 
TNC and to the Regular Session of the Council for TRIPS at the request of the Delegation of Norway. 
 
 
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 I. INTRODUCTION 
1. At the TRIPS Council meeting in June 2006 th e Delegation of Norway presented a proposal 
to amend the TRIPS Agreement to introduce an obliga tion to disclose the origin of genetic resources 
and traditional knowledge in patent applications.  This communicati on was circulated to Members on 
14 June 2006 (IP/C/W/473, WT/GC/W/566 and TN/C/W/42).  
2. At the TRIPS Council meeting in October 2006 the Delegation of Switzerland posed six 
questions to Norway regarding Norway's disclosure proposal.
1  At the TRIPS Council meeting in 
February 2007 the Delegation of Norway responde d to the questions posed by the Delegation of 
Switzerland.  The answers are reproduced below. 
                                                      
1 The questions are set out in the minutes of the TRIPS Council, see IP/C/M/52, page 21. WT/GC/111 
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  II. ANSWERS TO QUESTIONS POSED BY SWITZERLAND 
Question 1:
 
 
First, Norway proposes to apply the disclosure re quirement to all patent applications, that is, 
international, regional and national patent applic ations.  We would be interested in additional 
information on how Norway foresees that the proposed amendment of the TRIPS Agreement 
could also apply to international and regional patent applications. 
 Answer:
 
 1. In Norway's opinion, the disclosure requirement should apply to all patent applications, and 
consequently the Patent Cooperation Treaty and also the Patent Law Treaty should be amended.  If 
Members' agreement is reached on this approach, am endments to regional instruments would also be 
necessary, such as European Economic Area law (9 8/44/EC), the European Patent Convention and 
other regional instruments. 
2. In cases where an international authority merely  transmits an application to the (national) 
authority that is responsible for processing and gran ting or refusing applications, Norway believes that 
it should not be the international authority that en forces the disclosure requirement.  This should be 
done by the national patent office during processi ng of the application.  On the other hand, 
international organizations such as the European Pa tent Office that are competent to grant patents 
should also be responsible for enforcing the disclosure requirement. 
3. In cases where a national authority grants a patent  and it subsequently becomes apparent that 
the applicant has given incorrect or incomplete in formation, sanctions must be imposed at national 
level outside the patent systems, for example th rough criminal or administrative penalties.  Such 
sanctions must be effective and proportionate, but ma y otherwise differ from country to country.  In 
cases where an international organization grants a pa tent and it subsequently becomes apparent that 
the applicant has given incorrect information, sanc tions cannot be imposed nationally in the countries 
where the international authority's decision has effe ct.  Such cases must be dealt with as offences 
committed against the international organization. 
Question 2:
 
 
Second, Norway proposes to require the disclosure of the supplier country of genetic resources. 
How does Norway define the concept "supplier country"?  In what way would this differ from the "country providing genetic resources" as applied in Article 15 of the CBD? 
 Answer:
 
 1. The identification of the country of origin is important because, according to the CBD, only 
the country of origin - or a Contracting Party th at has acquired the resources in accordance with the 
CBD - is competent to provide consent to access to  genetic resources.  The supplier country would 
normally be either the country of origin, or a co untry that has acquired th e resources in accordance 
with the CBD.  In such cases, ther e would therefore be no real difference between the supplier country 
as used in the Norwegian proposal and the country providing genetic resources as used in the CBD. 
2. There could be cases where the supplier country is not the country of origin and has not 
acquired the resources in accordance with the CBD.  In such cases the supplier country would not be a  WT/GC/111 
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  "country providing genetic resources" as define d by the CBD, and would consequently not be 
competent to provide consent to access by others or be eligible for benefit sharing. 
Question 3:
 
 
Third, Norway proposes to require the disclosur e of the supplier country and the country of 
origin of traditional knowledge.  What are the "supplier country" and the "country of origin" of 
traditional knowledge, concepts not foreseen in th e CBD?  Moreover, what would be the role of 
the holders of this knowledge, that is, indigenous  and local communities?  Would they also have 
to be disclosed?  
Answer:
 
 1. The proposal should be considered in a broade r context, taking into account discussions in 
forums such as the Intergovernmental Committee on Intellectual Property and Genetic Resources, 
Traditional Knowledge and Folklore in WIPO. 
2. The supplier country should be understood to  mean the country from which the applicant 
received the traditional knowledge.  Often this w ill be the country from which the traditional 
knowledge originates.  If the country of origin is  different from the supplier country, the applicant 
must disclose information about both countries if they are known to him. 
3. The role of the holders of this knowledge ca nnot be explained in ge neral terms and is not 
directly dealt with in the proposal.  However, the disclosure requirement would make it possible for the holders of such knowledge to learn of any a pplications for patents for inventions using their 
traditional knowledge.  If the law in the supplier count ry or the country of origin of the traditional 
knowledge requires consent for access to traditional knowledge and such consen t is not given, the 
disclosure requirement will ensure that holders of  traditional knowledge can learn that traditional 
knowledge has been used without consent and can file objections with the relevant authorities. 
4. The question of who is to be regarded as hol ders of the traditional knowledge is a question 
that may be regulated in national law and the answer may therefore differ from country to country. This is why our proposal does not include a duty to disclose the identity of the holder of traditional knowledge. Furthermore, our proposal does not cons ider the question of consent in cases where there 
are multiple origins of traditional knowledge, but in  our opinion the solution would be that several 
countries are competent to grant consent. 
Question 4:
 
 
Fourth, what would happen if the "supplier country"  is unknown?  This would, for example, be 
the case if the patent applicant received the geneti c resource from a gene bank.  Would it not be 
preferable to use the broader concept of "source"  as proposed by Switzerland to cover all 
potential cases? 
 
Answer:  
 
1. We agree that a future disclosure requirement should also take into account a situation as 
described by Switzerland.  It is important that a di sclosure requirement is drafted so as to reflect all 
relevant situations where patent protection is sought on products inco rporating genetic material.  We 
can foresee three different situations that require slightly different approaches.  WT/GC/111 
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  2. In cases where the supplier country and/or th e country of origin is known, the supplier 
country as well as the country of origin (if known and different) should be disclosed in order to secure 
an effective implementation of the CBD.  Switzerla nd describes another situation where the supplier 
country is unknown, for instance where the material was received from a gene bank.  In such cases  it 
should be stated in the patent application that this  information is unknown, and the direct source of the 
material used - the gene bank - should be disclosed.  
3. In addition to these two situations, there is a third situation, which relates to patent 
applications where the genetic material was re ceived from the Multilateral System (MLS) under the 
International Treaty on Plant Genetic Resources fo r Food and Agriculture (ITPGRFA).  According to 
this Treaty access to the genetic resources covered should be accorded without the need to track 
individual accessions.  Benefit sharing is secured through the MLS.  In these cases, disclosing the MLS as the source of the material, not the supplier country and/or the country of origin, would contribute to an effective implementation.  In these cases it should therefore be sufficient for the 
applicant to disclose the MLS as the source of the ma terial.  If the MLS is the source of the material, 
the standard Material Transfer Agreement being used under the MLS should be added to the patent 
application as documentation. 
4. Norway is willing to consider whether and how the broader concept of source (as proposed by 
Switzerland) could be developed to cove r all the three different situations. 
Question 5:
 
 
Fifth, Norway proposes that "[i]f the applicant is  unable or refuses to give information despite 
having had an opportunity to do so, the applicat ion should not be allowed to proceed".  Would 
this sanction also apply if the patent applicant is unable to provide the required information for 
reasons beyond his control? 
 Answer:
 
 1. If the applicant is unable to provide this inform ation for reasons beyond his control, Norway's 
proposal provides for the application to pr oceed, and the sanction would not apply. 
Question 6:
 
 
Finally, footnote 1 of document IP/C/W/473 st ates that "[t]he specific provisions of the 
disclosure obligation should be fully compatible with the International Treaty on Plant Genetic 
Resources for Food and Agriculture and the Multilateral System established under it."  How can this compatibility be achieved if the pate nt applicant would be required to disclose the 
"supplier country" and the "country of origin,"  two concepts unknown to the International 
Treaty?  As stated above, would it not be preferable to use the broader concept of "source" as proposed by Switzerland to  cover all potential cases? 
 
Answer:
 
 
1. See answer to question 4. 
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