WORLD TRADE  
ORGANIZATION  WT/GC/W/566 
TN/C/W/42 
IP/C/W/473 
14 June 2006 
 
 (06-2847) 
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 
  
Communication from Norway
 
  
 The following communication, dated 13 June 2006, is being circulated to the General 
Council, to 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. The TRIPS Agreement and the Convention on Bi ological Diversity (CBD) can and should be 
implemented in a mutually supportive manner.  Ho wever, the interaction between the two treaties 
would be enhanced by introducing a mandatory ob ligation in the TRIPS Agreement to disclose the 
origin of genetic resources and traditional knowledge in patent a pplications.  This communication 
outlines the key principles Norway believes must be taken into account in this context. 
2. An obligation under the TRIPS Agreement to di sclose the origin of genetic resources when 
applying for patent protection would ensure transparen cy as regards the origin of biological materials 
that are to be patented.  This would make it easi er for parties to enforce their rights to their own 
genetic resources when these are the subject of a pate nt application, which in turn would make the 
CBD provisions on prior informed consent and benefit- sharing more effective.  Furthermore, such a 
disclosure obligation would be a significant step towards giving effect to Article 16.5 of the CBD, which provides that the Contracting Parties should coope rate to ensure that intellectual property rights 
are supportive of and do not run counter to the objectives of the CBD.  A disclosure requirement 
would ensure that novelty criteria are met, which acc ords with the basic intentions and principles of 
the patent system and increases its credibility. WT/GC/W/566 
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  3. An equivalent disclosure obligation should appl y where the claimed invention relates to or 
applies traditional knowledge, even where the traditio nal knowledge is not dire ctly linked to genetic 
resources.  The CBD only applies to traditional know ledge linked to genetic resources.  However, a 
general obligation to disclose any traditional knowle dge upon which an invention is based would help 
to prevent patents being wrongfully granted. 
II. KEY PRINCIPLES FOR A DISCLOSURE OBLIGATION 
4. Norway is of the opinion that such a disclos ure obligation should be based on the following 
key principles: 
(a) A binding international obligation should be introduced to include information on the 
supplier country (and the country of orig in, if known and different) of genetic 
resources and traditional knowledge in patent  applications.  The supplier country (or 
country of origin, if relevant) of traditiona l knowledge must be disclosed even if the 
traditional knowledge has no c onnection with genetic resources.  If the national law 
of the supplier country or country of or igin requires consent for access to genetic 
resources or traditional knowledge, the disclosure obligation must also encompass a duty to state whether such consent has been  given.  If the country of origin is 
unknown, that fact must be disclosed. 
(b) The disclosure obligation should apply to a ll patent applications (international, 
regional and national).
1 
(c) If the applicant is unable or refuses to give information despite having had an 
opportunity to do so, the application should not be allowed to proceed. 
(d) If it is subsequently discovered that incorr ect or incomplete information has been 
given, this should not affect the validity of  the granted patent, but should be penalised 
in an effective and proportionate way outside the patent system. 
(e) A simple notification system should be introduced, under which patent offices send 
all declarations of origin they receive  to the CBD Clearing-House Mechanism. 
III. REASONS FOR THIS PROPOSAL 
5. A disclosure of origin obligation as described above would support the aims of the CBD, and 
in particular the aim to secure an equitable sharing of the benefits of exploiting genetic resources.  A 
disclosure obligation would make it easier to verify  whether genetic resources have been collected in 
accordance with national rules requiring consent, a nd whether the conditions for such consent have 
been met. The disclosure obligation would also make  patent applicants aware of the importance of 
complying with the CBD, as implemented by the vari ous states.  The same would apply where states 
have rules requiring consent for exploitation of traditional knowledge independently of the CBD. 
6. Information on origin would also make it easier to ascertain whether the patentability 
requirements in the TRIPS Agreement have been me t, and e.g. help to prevent patenting in cases 
where the novelty or inventive step requirements ha ve not been met (even where genetic resources are 
                                                      
1 The specific provisions of the disclosure obligati on should be fully compatible with the International 
Treaty on Plant Genetic Resources for Food and Agricultu re and the Multilateral System established under it.   WT/GC/W/566 
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  not involved). A disclosure obligation would, therefore,  also be useful in ensuring that patents are not 
granted contrary to the fundamental principles of patent law. 
IV. FURTHER DETAILS ON THE EFFECTS OF NON-COMPLIANCE WITH THE 
DISCLOSURE OBLIGATION 
7. At the application stage, a breach of the discl osure obligation should be treated as a formal 
error, i.e. the application should not be processed  until the required information has been submitted. 
Where appropriate, the application could eventually be rejected. 
8. If, however, the breach of the disclosure obliga tion is discovered only after the patent has 
been granted, it should not in itself affect the validity of the patent, but rather be subject to appropriate 
and effective sanctions outside the patent system, fo r example criminal or administrative penalties.  If 
the applicant has acted in good faith, the fact that in correct or incomplete information has been given 
may have no consequences at all.  Upholding post-grant patent protection despite non-compliance 
with the disclosure obligation is important to a void creating unnecessary uncertainty in the patent 
system.  Moreover, revoking a patent as a conse quence of non-compliance with the disclosure 
obligation would not benefit those w ho consider themselves to be entitled to a share of the benefits of 
the invention.  Once patent protection is revoked,  there are no exclusive rights from which benefits 
could be derived. 
9. A patent can be revoked if the substantive pa tentability criteria have not been met, for 
example if a patent does not differ from traditiona l knowledge to the degree required to constitute a 
patentable invention. In such a case, it would be th e lack of inventive step that constitutes the reason 
for invalidity, and not the breach  of the disclosure obligation. 
V. HOW SHOULD THE TRIPS AGREEMEN T BE AMENDED TO INTRODUCE A 
MANDATORY DISCLOSURE OBLIGATION? 
10. The TRIPS Agreement is commonly understood to permit  Members to introduce disclosure of 
origin obligations in their national legislation. In order to  oblige  Members to introduce a mandatory 
disclosure obligation, the TRIPS Agreement would n eed to be amended.  The obligation to disclose 
origin is linked to the patent application, but do es not constitute a substantive patent criterion.  In 
Norway's opinion, it would therefore be most appr opriate to introduce a new provision in the TRIPS 
Agreement immediately following Article 29, wh ich contains provisions on the disclosure of 
information related to the invention. 
VI. SUMMARY 
11. Norway supports the amendment of the TRIPS Agreement to introduce a mandatory 
obligation to disclose the origin of genetic resour ces and traditional knowledge in patent applications. 
Such a disclosure obligation should be introduced in a new Article 29 bis and should provide that 
patent applications should not be processed unless  the required information has been submitted. 
However, non-compliance with the disclosure obliga tion discovered post-grant should not affect the 
validity of the patent. 
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