WORLD TRADE  
ORGANIZATION  IP/C/W/545 
26 February 2010 
 
 (10-1102) 
Council for Trade-Related Aspects 
of Intellectual Property Rights Original:   English 
 
 
 
REVIEW OF ARTICLE 27.3(B) OF TRIPS AGREEMENT 
 
Communication from Bolivia  
 
 
 The following communication, dated 24 February 2010, is being circulated at the request of 
the delegation of Bolivia.  
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I. INTRODUCTION 
1. The purpose of this submission is to contribute to the work programme of the TRIPS Council 
under the review of Article 27.3(b). 
2. Article 27.3(b) allows Members to exclude fro m patentability plants and animals, but not 
micro-organisms, and allows Members to exclude  from patentability essentially biological processes 
for the production of plants and animals, but no t non-biological or microbiological processes.  
Furthermore, it also requires a legal form of prot ection for plant varieties, by requiring members to 
provide plant variety protection either  by patents or by an effective sui generis  system of protection or 
by any combination thereof.  It also requires that Ar ticle 27.3(b) be reviewed four years after the entry 
into force of the WTO agreement. 
3. The review of Article 27.3(b) is an issue w ithin the mandate of the Doha Work Programme 
under paragraph 19 of the 2001 Doha Mini sterial Declaration (WT/MIN(01)/DEC/1). 
4. The review is also an issue within the mandate of the Doha Work Programme under 
Implementation-Related Issues and C oncerns (paragraph 12 of the Doha Ministerial Declaration).  
Paragraph 12 mentions the adoption of the Deci sion on Implementation-Related Issues and Concerns 
(WT/MIN(01)/17) to address a number of implemen tation problems faced by Members.  It also 
clearly states that the "negotiations on outstanding implementation issues shall be an integral part of 
the Work Programme". 
5. The "Compilation of Outstanding Implem entation Issues Raised by Members" 
(JOB(01)152/Rev.1) has several items relating to the review of Article 27.3(b).  The relevant tirets 
and paragraphs are as follows: 
 "Tiret 91:
  The period given for implementation of th e provisions of Article 27.3(b) shall be 
five years from the date the review is completed." 
  "Tiret 95
:  ...[Article 27.3(b) to be amended (…)  The amendments should clarify and 
satisfactorily resolve the analytical distin ctions between biological and microbiological 
organisms and (...) processes that produce living organisms should not be patentable.  The IP/C/W/545 
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  amendments should ensure the protection of innovations of indigenous and local farming 
communities;  the continuation of traditional farming processes including the right to use, 
exchange and save seeds, and promote food security.]" 
  "Proposal by Least-Developed Countries 22 October 2001
:  The General Council agrees that 
the review process should clarify that all living organisms, including plants, animals and parts 
of plants and animals, including gene sequen ces, and biological and other natural processes 
for the production of plants, animals and their parts, shall not be granted patents." 
 
II. PRESENT SIGNIFICANCE OF RE VIEW OF ARTICLE 27.3(B) 
6. Over the years, various submissions and pr oposals have been made on the review of 
Article 27.3(b).  Some important concerns raised by the submissions and proposals are the need to 
amend or clarify Article 27.3(b) to prohibit the paten ting of all life forms, the need to protect farmers' 
rights, genetic resources, traditional knowledge a nd traditional practices in developing countries. 
7. Meanwhile various developments have taken place at different national, regional and 
international levels that highlight the need to  conduct concrete and e xpedited discussions on the 
Review of Article 27.3(b).  In brief so me of these developments are explained. 
8. First, and for us most importantly, in Janua ry 2009 the people of Bolivia adopted a new 
Constitution, which states: 
 Article 255 paragraph II:  Negotiation, signature  and ratification of treaties will be governed 
by the following principles: 
• Respect for the rights of indigenous peoples and peasants. 
• Harmony with nature, protection of bi odiversity and prohibition of private 
appropriation of plants, animals, micro-or ganisms and any living matter for exclusive 
use and exploitation. 
9. Another important development is the adoption of the United Nations Declaration on the 
Rights of Indigenous Peoples in 2007.  Article 11.1 of the Declaration recognizes the right of 
indigenous peoples "to practise and revitalize their cu ltural traditions and customs.  This includes the 
right to maintain, protect and develop the past, pres ent and future manifestations of their cultures, 
such as archaeological and historical sites, artefacts, designs, ceremonies, technologies and visual and performing arts and literature".  Article 11.2 of the Declaration re quires states to "provide redress 
through effective mechanisms, which may includ e restitution, developed in conjunction with 
indigenous peoples, with respect to their cultural, intellectual, religious and spiritual property taken 
without their free, prior and informed consent or in  violation of their laws, traditions and customs". 
10. Further Article 31 of the Declaration recognises that "indigenous peoples have the right to 
maintain, control, protect and develop their cultu ral heritage, traditional knowledge and traditional 
cultural expressions, as well as the manifestations  of their sciences, technologies and cultures, 
including human and genetic resources, seeds, medi cines, knowledge of the properties of fauna and 
flora, oral traditions, literatures, designs, sports and traditional games and visual and performing arts" 
and the "right to maintain, control, protect and develop their intellectual property over such cultural 
heritage, traditional knowledge, a nd traditional cultural expressions."  Thus States have the duty to 
"take effective measures to recognize and protect the exercise of these rights".  IP/C/W/545 
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  11. Furthermore extensive patenting of life form s, misappropriation of biological resources 
originating from developing countries, increasing con centrated corporate control over the agriculture 
industry due to various acquisitions, undermining of the rights of indigenous peoples, local 
community and farmers including farmers being prosecu ted for alleged patent vi olations, proliferation 
of trade agreements and initiatives focused on enfo rcement of intellectual property, pressures to adopt 
a particular model for plant variety protection, in  our view makes a strong case for an in-depth and 
accelerated review of Article 27.3(b). 
III. ISSUES FOR CONSIDERATION 
12. This communication is a brief introduction to some of the issues that need to be addressed 
under the review of Article 27.3(b). 
A. PATENTING OF LIFE FORMS  
13. The rationale behind Article 27.3(b) is not clear.  This relates to the artificial distinction made 
between plants and animals (which may be excl uded) and micro-organisms (which may not be 
excluded);  and also between "essentially biological " processes for making plants and animals (which 
may be excluded) and non-biolog ical and microbiological processes (which may not be excluded).  
14. There is no reason why "micro-organisms ", "micro-biological processes" and 
"non-biological" processes for the production of plants and animals should be singled out for 
patentability, whereas members are given the discreti on to prohibit patents on plants and animals, and 
on essentially biological processes. 
15. Moreover, by giving Members the option whether or not to exclude the patentability of plants 
and animals, Article 27.3(b) allows life forms to be patented. 
16. Consequently, since the adoption of the TRIPS Ag reement, there has been a proliferation of 
patents and patent applications involving micro-organisms and other biological resources.  This 
phenomenon has serious social, economic and ethical implications, which are adverse especially for 
developing countries. 
17. Firstly, most of the patent holders and applican ts are from developed countries.  Secondly, the 
granting of patents prevents those not having the pa tents from making use of the patented materials, 
and this is also made up of persons and institu tions in developing countries, including indigenous 
peoples.  Thirdly, many of the biological resour ces originate in developing countries and are obtained 
without their knowledge and in violation of thei r laws, thus resulting in "misappropriation" and 
biopiracy.  Fourthly, genetic material may be inserte d via vectors such as bacteria into plants and 
animals, and all these living things (the genetic ma terial, the genetically-modified bacteria, and the 
genetically-modified plants and an imals) may then be patented. 
18. The resulting effect is concentration of ownershi p of patents in a few entities (largely based in 
developed countries) with detrim ental effects on competition and on social and economic situation 
(including food sovereignty and li velihood of farmers) that most affects the vulnerable and poor, 
including indigenous peoples in developing countries. 
19. Patenting of life forms promotes an imbalance in the current intellectual property system.  
The TRIPS Agreement while granting monopoly rights to private parties does not explicitly recognise the collective rights of indigenous peoples and lo cal communities over their biological resources and 
traditional knowledge, farmers' rights or the sovereign rights of States. IP/C/W/545 
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  20. There is also an ethical dimension to the issue.  The patenting of life forms is unethical as it is 
against the moral and cultural norms of many soci eties and indigenous peoples, of members in the 
WTO including that of Bolivia. 
B. P
ROTECTION OF PLANT VARIETIES  
21. The issue of protection of plant varieties is also  of concern to the delegation of Bolivia.  Prior 
to the TRIPS Agreement, countries had flexibility to d eal with the issue of plant varieties protection in 
the manner they chose.  However, TRIPS Article 27.3(b) requires protection of plant varieties by 
either a patent, a sui generis  system or a combination of both.  In this regard there are a number of 
concerns. 
22. Firstly, in several developed countries, patenting of plants is already taking place, and in the 
process, there is misappropriation of biological resources, as plants and seeds originating in 
developing countries are being patented, usually with out the knowledge or consent of the countries of 
origin.  Secondly, the 21st century has seen significant corporat e control over the agriculture industry 
due to various mergers and acquisitions.  Thirdly, in some countries where there are patents on plants, 
farmers are being prosecuted fo r alleged patent violations. 
23. Fourthly, pressures are often placed on countries to accept a certain definition or model for 
implementation of Plant Variety Protection although th ere is no such requirement in Article 27.3(b).  
In this regard it is important to ensure that inno vations of indigen ous and local farming communities;  
the continuation of traditional farm ing practices including the right to use, exchange, save seeds and 
sell their harvest is recognised and protected.  It is also equally important to recognise the right to take 
measures to prevent anti-competitive and other pr actices, which threaten food sovereignty in 
developing countries. 
24. In this sense, the new Constitution of Bolivia is a step towards providing protection to its 
farmers and peasants against actions and practices, which threaten food sovereignty.  Article 16.II 
establishes that "the State must guarantee food secur ity through a healthy, adequate and sufficient 
alimentation for the entire population".  Consistent  with this provision, the new Constitution also 
states in its Article 255.I.8 that "negotiation, signat ure and ratification of treaties will be governed by 
the following principles:  security and food soverei gnty for all the people;  prohibition of importation, 
exportation production and marketing of genetically modified organisms and toxic elements, which 
damages the health and environment". 
C. TRADITIONAL KNOWLEDGE AND THE RIGHTS OF INDIGENOUS COMMUNITIES  
25. The process of review of Article 27.3(b) should take into account the United Nations 
Declaration on the Rights of Indigenous Peoples as noted in Part II above and the protection of 
traditional knowledge and folklore. 
26. One of the cornerstones of Bolivia's new Constitu tion is full respect for the culture and rights 
of indigenous peoples.  For example Ar ticle 100 of the Constitution recognizes "the cosmovision1, 
myths, oral history, dances and cultural pr actices, traditional knowle dge and technologies of 
indigenous peoples and peasants as their heritage [and that] this heritage is part of the expression and 
identity of the State".  Article 382 states that it "i s the competence and duty of the State to defend, 
                                                      
1 "Cosmovision" denotes a set of concepts and beliefs related to the universe, nature and life.  The 
concept of "Cosmovision" is similar to the German concept of "Weltanschauung" which is a framework for 
generating various dimensions of human perception and experience like knowledge , politics , economics , 
religion , culture , science , ethics  and the relationship between nature and human beings.  The closest translation 
of this word may be the English concept of "worldview" or "comprehensive world view".  IP/C/W/545 
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  recover and protect biological material comi ng from natural resources, ancestral knowledge and 
anything else that originate in the territory" 
27. The indigenous peoples' cosmovision  has been a structural element in the design of the 
National Plan of Development.  This philosophy is reflected in the indigenous concept of "Suma 
Qamana" (that can be translated as "living well" ) which supports the idea that humans should live in 
harmony and equilibrium with nature.  The strong connection that Bolivian indigenous culture has 
with nature is the heritage of humanity and re presents an alternative to the capitalist model of 
development, that is in crisis and in which de velopment is linked to th e depredation of natural 
resources for short-term profit. 
28. In addition, the United Nations Declara tion on the Rights of Indigenous Peoples was 
incorporated into the national legislation of Bolivia in November 2007 through Law 3760, which 
requires all Bolivians to comply with the Declaration. 
29. Therefore, the Plurinational State of Bolivia sh all prevent the patenting of any form of life 
and the granting of private monopolistic intell ectual property rights on any traditional-ancestral 
knowledge . 
IV. CONCLUSION 
30. Following the above, we conclude on the need  to urgently review Article 27.3(b) to: 
(a) prohibit the patenting of all life forms, incl uding plants and animals and parts thereof, 
gene sequences, micro-organisms as well as all processes including biological, microbiological and non-biological processes for the production of life forms and parts thereof; 
(b) ensure the protection of the innovations of  indigenous and local farming communities 
and the continuation of the traditional farm ing practices including the right to save, 
exchange and save seeds, and sell their harvest; 
(c) prevent anti-competitive practices which threaten food sovereignty of people in 
developing countries;  and 
(d) to protect the rights of indigenous communities and prevent any private monopolistic 
intellectual property claims over their traditional knowledge. 
31. The above-mentioned issues are long outstanding and thus the delegation of Bolivia hopes 
that the issues will receive immediate attention.  The delegation of Bolivia will also further elaborate 
on the issues highlighted above. 
 
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