WORLD TRADE  
ORGANIZATION  TN/C/W/59 
19 April 2011 
 (11-2027) 
Trade Negotiations Committee Original:   English 
  
 
DRAFT DECISION TO ENHANCE MUTUAL SUPPORTIVENESS BETWEEN THE 
TRIPS AGREEMENT AND THE CONVENT ION ON BIOLOGICAL DIVERSITY 
 
Communication from Brazil, China, Colombia , Ecuador, India, Indonesia, Peru, 
 
Thailand, the ACP Group, and the African Group  
 
  The following communication, dated 15 April 2011,  is being circulated at the request of the 
delegations of Brazil, China, Colombia, Ecuador, In dia, Indonesia, Kenya (on behalf of the African 
Group), Mauritius (on behalf of th e ACP Group), Peru, and Thailand. 
 
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 Members, 
 Bearing in mind  the principles, objectives and definitions of the WTO Agreement on 
Trade-Related Aspects of Intellectual Property Right s (the TRIPS Agreement), of the Convention on 
Biological Diversity (CBD), and of the Nagoya Pr otocol on Access to Genetic Resources and the Fair 
and Equitable Sharing of Benefits Arising from their Utilization (Nagoya Protocol);  
 Reaffirming that States have sovereign rights over their own biological resources
1; 
 Stressing the need for the TRIPS Agreement and the CBD to be implemented in a manner 
which is mutually supportive and does not run counter to their respective objectives2; 
 Recalling that the fair and equitable sharing of bene fits arising from the utilization of genetic 
resources is one of three core objectives of the CBD3; 
 Stressing the need to ensure that the utilizati on of genetic resources and/or associated 
traditional knowledge must comply with the access and benefit-sharing legislation of the Member 
providing genetic resources and/or associated traditional knowledge, that  is, the country of origin of 
such resources or a Member that has acquired the genetic resources in accordance with the CBD; 
 Noting that Article 17 of the Nagoya Protocol establishes that Parties shall take measures, as 
appropriate, to monitor and to enhance transpar ency about the utilization of genetic resources, 
including designating effective check -points to collect or receive, as appropriate, relevant information 
regarding the utilization of genetic resources at, inter alia , any stage of research, development, 
innovation, pre-commercialization or commercialization; 
                                                      
1 Paragraph 4 of the Preamble of the CBD.  
2 Article 16.5 of the CBD and Article 4 of the Nagoya Protocol dealing with "Relationship with 
International Agreements and Instruments".  
3  Article 1 of the CBD.  TN/C/W/59 
Page 2  
 
   Noting  the extensive discussions in the Council for TRIPS and under the aegis of the 
Director-General on the introduction into the TRI PS Agreement of a mandatory requirement for the 
disclosure of origin of genetic resources and/or associated traditional knowle dge used in inventions 
for which intellectual property rights are applied for; 
 Recognizing  that the disclosure requirement in Article 29 of the TRIPS Agreement is 
incomplete without the disclosure of origin of  genetic resources and/or associated traditional 
knowledge; 
 Acknowledging  that a legal obligation establishing such a mandatory disclosure requirement 
in patent applications will contribute to preven t both misappropriation of genetic resources and the 
grant of erroneous patents and also enhance transp arency about the utilization of genetic resources 
and/or associated traditional knowledge; 
 Decide  to amend the TRIPS Agreement by inserting a new Article as follows: 
 
Article 29 bis 
 
Disclosure of Origin of Genetic Resourc es and/or Associated Traditional Knowledge 
 
1. For the purposes of establishing a mutually supp ortive relationship between this Agreement 
and the Convention on Biological Diversity, Members sh all have regard to the objectives, definitions 
and principles of this Agreement, the Conventio n on Biological Diversity, and the Nagoya Protocol 
on Access to Genetic Resources and the Fair and E quitable Sharing of Benefits Arising from their 
Utilization, in particular its provisions on prior in formed consent for access and fair and equitable 
benefit sharing.  
2. Where the subject matter of a patent applica tion involves utilization of genetic resources4 
and/or associated traditional knowledge, Members shall re quire applicants to disclose:  (i) the country 
providing such resources, that is, the country of orig in of such resources or a country that has acquired 
the genetic resources and/or associated traditiona l knowledge in accordance with the CBD;  and, 
(ii) the source5 in the country providing the genetic res ources and/or associated traditional knowledge.  
Members shall also require that applicants provide a copy of an Internationally Recognized Certificate 
of Compliance6 (IRCC).  If an IRCC is not applicable in the providing country, the applicant should 
provide relevant information regarding compliance with prior informed consent and access and fair 
and equitable benefit sharing as required by the national legislation of the country providing the 
genetic resources and/or associated traditional knowle dge, that is, the country of origin of such 
resources or a country that has acquired the genetic  resources and/or associated traditional knowledge 
in accordance with the CBD. 
                                                      
4 As mentioned in Article 2 of the CBD, "Genetic resources" means genetic material of actual or 
potential value and "Genetic material" means any material of plant, animal, microbial or other origin containing functional units of heredity.
 
5 Including details of whom in the providing country such resources were obtained from.  
6 Article 17.3 of the Nagoya Protocol states th at "An internationally r ecognized certificate of 
compliance shall serve as ev idence that the genetic resource which it co vers has been accessed  in accordance 
with prior informed consent and that mutually agreed te rms have been established, as required by the domestic 
access and benefit-sharing legislation or regulatory requirements of the Party providing prior informed consent".  
Article 17.4 states the minimum information that shall be contained in the IRCC when such information is not 
confidential.  TN/C/W/59 
 Page 3 
 
 
  3. Members shall publish the information disclosed in accordance with paragraph 2 of this 
Article jointly with the publication of the application or the grant of patent, whichever is made first. 
4. Members shall put in place appropriate, effective and proportionate measures so as to permit 
effective action against the non-compli ance with the obligations set out in  paragraph 2 of this Article.  
Patent applications shall not be processed without completion of the disclosure obligations set out in 
paragraph 2 of this Article. 
5. If it is discovered after the grant of a patent that the applicant failed to disclose the 
information set out in paragraph 2 of this Article, or submitted false and fraudulent information, or it 
is demonstrated by the evidence that the access and utilization of ge netic resources and/or associated 
traditional knowledge violated the relevant nationa l legislation of the country providing genetic 
resources and/or associated traditional knowledge, that is, the country of origin of such resources or a 
country that has acquired the genetic resources and/ or associated traditional kno wledge in accordance 
with the CBD, Members shall impose sanctions, which may include administrative sanctions, criminal sanctions, fines and adequate compensation for da mages.  Members may take other measures and 
sanctions, including revocation, against the viola tion of the obligations set out in paragraph 2. 
 
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