WRITTEN QUESTION E-1931/01

by Proinsias De Rossa (PSE) to the Commission

(29 June 2001)

Subject: TRIPS

The WTO Council for TRIPS is currently reviewing the provisions of the TRIPS Agreement Article 27.3b, which govern patentability of life forms. Various WTO members, in particular the developing countries, have expressed concern about the current provisions' impact on their food security prospects. In this respect Kenya, representing the African group in the WTO, has proposed to exclude all life forms (all living organisms and their parts, and all living processes) from patenting.

Will the Council and Commission undertake all action necessary to ensure that:

1. all life forms (all living organisms and their parts, and living processes) will be excluded from patentability within TRIPS;

2. biopiracy will be addressed internationally;

3. TRIPS will recognise farmers' rights, especially their role as breeders and conservators of agricultural seeds and technology.

Will the Council and Commission also consider:

1. the fact that the TRIPS Agreement only recognises formal innovation systems, which is unfair and distorted, especially in a development perspective;

2. the fact that the morality and ordre public clauses in TRIPS 27,2 are very limited they only apply to commercialisation of patented inventions, not to patentability of the inventions.

Answer given by Mr Lamy on behalf of the Commission

(5 September 2001)

The Commission is of the view that the existing Article 27.3(b) of the Trade-related aspects of intellectual property rights (TRIPs) Agreement, which deals with patenting of life forms, expresses a carefully negotiated balance between countries who are in favour of the patenting of life forms and those who are not. As a result, the TRIPs Agreement gives World trade organisation (WTO) Members flexibility with regard to patentability of life forms. WTO Members are not obliged to allow patenting of plants and animals. They are only obliged to provide patent protection to inventions related to micro-organisms, and to grant sui generis protection to plant varieties. Today, many countries remain in favour of patenting life forms, and do not accept a general prohibition on the patenting of living organisms. Therefore, the Commission is in favour of Article 27.3(b) as it exists today.

The Community's views on the link between biodiversity related issues and the TRIPs Agreement were recently communicated to the TRIPs council (http://www.cc.cec:8082/comm/trade/pdf/dc_bdtrips.pdf). In this Communication, the Community underlines the different objectives of the TRIPs Agreement and the Convention on Biological Diversity (CBD), and the fact that they do not deal with the same subject matter, while acknowledging that there is considerable interaction between the rights referred to in the TRIPs Agreement and the subject matter of the CBD. Furthermore, the Community declares its readiness to constructively discuss biodiversity-related issues in the relevant fora, including the WTO, CBD, Food and Agriculture Organisation (FAO) and World Intellectual Property Organisation (WIPO). In particular, the Community is open to discussing ways to implement TRIPs and the CBD in a mutually supportive manner, with a view to better recognising traditional knowledge and its assets, preventing abusive patenting of traditional knowledge and protecting traditional knowledge and farmer's rights.

In this regard, the Community has been actively involved in the work of the CBD Panel of Experts on access to genetic resources and sharing of the benefits arising from their use. The outcome of the work of this Panel provides the basis upon which a CBD Ad hoc Working Group, meeting in Bonn in October 2001, will try to develop guidelines or other approaches in order to address the issue of access to genetic resources and benefit-sharing, including related traditional knowledge. The Community is ready to play an active role in the Ad hoc working group in order to contribute to its success. Furthermore, the issue of protection of traditional knowledge is also addressed in the CBD Article 8 j) group, in which the Community is also involved.

Moreover, the Commission also refers to the Community's involvement in the negotiation of a revised International Undertaking on Plant Genetic Resources for Food and Agriculture within FAO (which addresses, inter alia, facilitated access within a Multilateral System, sharing of benefits, intellectual property rights and farmers' rights), and in the new Intergovernmental Committee on Access to Genetic Resources, Traditional Knowledge and Folklore in the World Intellectual Property Organisation.

It is a fact that the TRIPs Agreement is silent on the issue of informal innovation systems or traditional knowledge. The TRIPs Agreement mainly incorporates intellectual property (IP) rights which have already been regulated under other international agreements, such as those falling under the auspices of the WIPO. However, the TRIPs Agreement in no way prevents countries from setting up a national regime for protection of traditional knowledge. The Community has made clear that it is open to developing country requests to include the relationship of TRIPs and CBD including the issue of traditional knowledge on the agenda of a new trade round.

Finally, the Commission does not share the Honourable Member's view that the morality and ordre public clauses of Article 27.2 of the TRIPs Agreement are very limited and only apply to the commercialisation of patented inventions.

Article 27.2 allows WTO Members to exclude otherwise patentable inventions from patentability on grounds of ordre public or morality, including to protect human, animal or plant life or health or to avoid serious prejudice to the environment. At the same time Article 27.2 provides that one can only exclude from patentability products for which commercialisation is also prohibited. The rationale is that it would be absurd to deny patents to certain inventions (for example certain types of weapons) on morality grounds, while at the same time allowing their commercialisation.