The discussion in the TRIPS Council has gone into considerable detail with a number of ideas and proposals for dealing with these complex subjects.
More recently, the topic has been the subject of informal consultations chaired by the WTO director-general or by one of his deputies. The present debate focuses on how the TRIPS Agreement relates to the Convention on Biological Diversity (the last two of the topics listed above). The ideas put forward include (the documents containing the proposals and the director-general’s report can be found here):
Disclosure as a TRIPS obligation: A group represented by Brazil and India and including Bolivia, Colombia, Cuba, Dominican Republic, Ecuador, Peru, Thailand, and supported by the African group and some other developing countries, wants to amend the TRIPS Agreement so that patent applicants are required to disclose the country of origin of genetic resources and traditional knowledge used in the inventions, evidence that they received “prior informed consent” (a term used in the Biological Diversity Convention), and evidence of “fair and equitable” benefit sharing.
Disclosure through WIPO: Switzerland has proposed an amendment to the regulations of WIPO’s Patent Cooperation Treaty (and, by reference, WIPO’s Patent Law Treaty) so that domestic laws may ask inventors to disclose the source of genetic resources and traditional knowledge when they apply for patents. Failure to meet the requirement could hold up a patent being granted or, when done with fraudulent intent, could entail a granted patent being invalidated.
Disclosure, but outside patent law: The EU’s position includes a proposal to examine a requirement that all patent applicants disclose the source or origin of genetic material, with legal consequences of not meeting this requirement lying outside the scope of patent law.
Use of national legislation, including contracts rather than a disclosure obligation: The United States has argued that the Convention on Biological Diversity’s objectives on access to genetic resources, and on benefit sharing, could best be achieved through national legislation and contractual arrangements based on the legislation, which could include commitments on disclosing of any commercial application of genetic resources or traditional knowledge.
In July 2008, a group of WTO members called for a “procedural decision” to negotiate three intellectual property issues in parallel: two geographical indications issues, and the “disclosure” proposal (see document TN/C/W/52 of 19 July 2008). But members remain divided over this idea.
‘Patentable inventions’
In general, inventions eligible for patenting must be new, involve an inventive step (or be non-obvious) and be capable of industrial application (or be useful). Article 27 also lists inventions which governments do not have to make eligible for patent protection.