In October 2004, the Assemblies of the World Intellectual Property Organization (WIPO) decided to respond positively to the invitation of the Convention on Biological Diversity (CBD) for WIPO “to examine, and where appropriate address, taking into account the need to ensure that this work is supportive of and does not run counter to the objectives of the CBD, issues regarding the interrelation of access to genetic resources and disclosure requirements in intellectual property rights applications” and established a procedure for preparing the response.2 The CBD invitation had elicited a number concerns, even prior to its discussion in the Assemblies. First, there were concerns that the request would be addressed only in the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge, and Folklore (IGC), thus negatively impacting developing country and non-governmental organization (NGO) efforts to advance the protection of genetic resources and traditional knowledge in a simultaneous and coherent manner across all relevant WIPO bodies. The modalities established by the Assemblies to address the CBD request, which establish a cross-cutting procedure open to all WIPO Members and to observers accredited to the IGC, Standing Committee on the Law of Patents (SCP) and Working Group on PCT Reform (PCT Reform WG), are, in this regard, a positive development. A second set of concerns related to ensuring WIPO’s response adequately reflect the context of the invitation – the CBD objectives and process – as well as the state of discussions in its own bodies. Again, the modalities established present an important opportunity for developing countries and NGOs to indicate the fundamental principles and concepts that an adequate WIPO response should incorporate. In particular, the December 15, 2004, deadline for Member States of WIPO to submit proposals and suggestions is crucial in influencing the process from its very beginning.
The objective of the present note is to suggest several principles that would provide an essential framework for WIPO’s examination of the interrelation of access to genetic resources and disclosure requirements in patent applications. These principles arise from the invitation of the CBD, from the CBD decision within which the invitation was made, and from other decisions made by WIPO at its Assemblies. They include the need to support and not run counter to the objectives of the CBD; the recognition of the leading role of the CBD in biodiversity-related issues; the integration of the development dimension; and the need to, only where appropriate, address the issues proposed by the CBD request. Consideration of these principles by WIPO would ensure that its response is adequately placed in the context of the CBD objectives, reflects an appropriate cooperation between the CBD, WIPO, and other relevant international organizations, and effectively incorporates development concerns. In addition, these principles would direct the response towards accurately portraying ongoing discussions and negotiations on these issues in the different WIPO bodies.