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 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.1 The modalities and timetable adopted included the possibility for all Member States and observers accredited to the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC), Standing Committee on the Law of Patents (SCP) and Working Group on the Reform of the Patent Cooperation Treaty (PCT) to submit observations and comments on the First Draft of the WIPO Examination of the Issues (First Draft) by the end of March 2005.
The Center for International Environmental Law (CIEL), an accredited permanent observer to WIPO, has the honor to request that the present comments on the First Draft be appropriately considered in the process of developing a response to the CBD request. In this regard, after the introduction, Section II will present several principles that should be considered in order to establish an adequate framework and approach to the WIPO response. Principles that will be addressed include, among others, the need to support of the CBD objectives and to respond to the guidance of WIPO Member States and accredited observers, which would assure that the WIPO response constructively contributes to the CBD process while maintaining a focus on integrating the CBD principles into the international intellectual property system. Then, Section III will analyze the specific elements of the CBD request in the First Draft, indicating in particular the lack of emphasis on avoiding the misuse of the intellectual property system and on developing the mandatory international rules needed to effectuate the CBD objectives as well as those of the intellectual property system itself. Lastly, these comments will finalize with some concluding thoughts.