E wipo/grtkf/IC/19/12 original: English date: February 23, 2012 Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore Nineteenth Session July 18 to 22, 2011, Geneva report

ordre public. Those concepts were cited together in Article 27 (2) of the TRIPS Agreement. The term ordre public derived from French law and was not an easy term to translate into English. Therefore, the original French term was used in the TRIPS Agreement. That term expressed concerns about matters threatening the social structures which tied a society together, matters that threatened the structure of civil society as such. As defined in the Oxford Dictionary, morality expressed the degree of conformity to moral principles, especially good ones. In the implementation of those principles, the differences in cultures and countries, and changes over time, would be taken into account. Some important decisions relating to patentability might depend upon the judgment about morality. It would be inadmissible that patent offices grant patents to any kind of invention without any consideration of morality.

The Delegation of Sri Lanka aligned itself with the statements made by the delegations of Bangladesh and Angola, saying that it recognized the various practical difficulties the facilitator’s faced and expressed its appreciation for the cleaner texts.

The Delegation of the Sudan commented on objective 2 of the revised text which prevented patents involving the access and utilization of GRs, their derivatives and associated TK from being granted. The term “in bad faith” after “patents from being granted”, was practically not applicable, because bad faith was not a requirement for granting patents.

The representative of INBRAPI supported the comments made by the delegations of the Bolivarian Republic of Venezuela, the United Republic of Tanzania and Plurinational State of Bolivia. She welcomed the text on self-determination of indigenous peoples and local communities in objective 1, principle 2 and asked it to be included discussion by the IGC.

The Delegation of Colombia appreciated the challenges and difficulties the facilitators faced in drafting those documents and thanked them for their best efforts to make a contribution to the work of the IGC. Compared to the two other subjects, GRs was under developed. Therefore, the challenge faced was how to make progress on the three subjects and at the same time achieve a degree of maturity on that subject matter. The drafting of objectives and principles was and would continue to be very important but it encouraged all members to find a way of moving to the next stage to enable the IGC engage in true negotiations.

The Delegation of Japan stated that although the text was much easier to read and reflected the different views, not everybody was happy with the texts. In its understanding, no drafting would take place at that stage, but there would be opportunity to hold further discussions at the upcoming IGC sessions.

The Delegation of the United States of America wanted to echo the statements of the Delegations of Colombia, Japan and the EU earlier. It welcomed the very significant work on GRs made by the co-facilitators. It did not see many of its positions reflected in that final text. It encouraged all Member States to support that process and recognize that, if a position had not been reflected in the text, it might have been because it was not gathering enough support. The Delegation needed to go back and think that it might not have articulated clearly enough, that maybe its position was not going to get enough support, and that it should consider a different approach.

The Delegation of El Salvador was pleased to have the documents on GRs. Although they did not contain all objectives and principles, they were excellent documents on the basis of which the IGC could conclude its work following the renewed mandate.

Mr. Pande, on behalf of the facilitators, noted the difficulties with amalgamating the text. During that process some omissions and editorial mistakes had taken place inadvertently. He felt humbled by the statements of the delegations of the Plurinational State of Bolivia, with respect to objective 2, option 5 and of Sudan, mentioning the bracketed term “in bad faith”. It had not been the facilitators’ intentions and job to delete text. As regards to the comment by the Delegation of the Holy See, that text would equally remain. The facilitator was grateful to delegations who appreciated the text as a beginning. As previously stated in the last IGC, the Delegation of India was satisfied with the objectives and principles and was ready proceed with discussions on a text. The facilitators had made attempts to bringing the objectives and principles to a level where further discussions could take place, if the IGC so wished. The footnotes were included in one of the texts and omitted in the other. The issue of the “country providing” or “country of origin” could be discussed further in the next session.

The Delegation of the Bolivarian Republic of Venezuela was grateful to hear from the facilitators that its proposal was left out unintentionally and that it would be restored.

The Delegation of the Plurinational State of Bolivia supported the Delegation of the Bolivarian Republic of Venezuela and commended the way in which the Chair was leading the meeting. It thanked the facilitators for their extremely complex work and hence omissions and errors were inevitable. It waited to see a revised version of the text which contained both the concerns it had expressed in respect of objective 2, principles 5 and the mention of the term “ordre public“, as stated by the Delegation of the Holy See.

The Chair thanked the facilitators for a very good attempt in coming up with a neat text. The text on GRs had been untidy and complicated, which, explained the unintended omissions or errors by the facilitators. He assured that that was not the final, and all comments, in particular, those of the delegations of the Plurinational State of Bolivia, the Bolivarian Republic of Venezuela and the United Republic of Tanzania on the issue of “country of origin” and “country providing” and the representative of Tupaj Amaru would be reflected. He invited the facilitators to work with the Secretariat to incorporate those comments and those articles that were inadvertently omitted, so that they could appear in the next round of discussions.

The Delegation of the Plurinational State of Bolivia insisted on seeing the corrected text in the document before it could agree to adopt the decision under that agenda item. Having the amendment reflected in decision only and not the respective document was not sufficient, as that was a very important issue to them. It sought the Chair’s indulgence to make a brief drafting proposal for inclusion in the GRs document.

The Chair read out the draft decision on the GRs explaining that the draft decision clearly stated that amendments to the text presented by the facilitators would be incorporated into the document WIPO/GRTKF/IC/19/6 on the draft objectives and principles on GRs which would be transmitted to the next session of the IGC. He believed that the IGC was working in good faith and requested the facilitators to confirm that the proposal by the Delegation of the Plurinational State of Bolivia had been inserted in the text.

Mr. Ian Goss, one of the co-facilitators, said that he recognized the concerns raised by the Delegation of the Plurinational State of Bolivia, and reassured the Delegation that its text proposal would be added in to the electronic version of the text.

The Delegation of the Plurinational State of Bolivia argued that its request was not unreasonable, and it never took the floor unless it was absolutely necessary.

The Delegations of Brazil and the Bolivarian Republic of Venezuela supported the comments made by the Delegation of the Plurinational State of Bolivia.

On the Chair’s invitation to provide the language for the proposed text, the Delegation of the Plurinational State of Bolivia read out the following text: “ensure that no patent on life and life forms are granted for genetic resources, associated traditional knowledge”.

Mr. Ian Goss confirmed that the proposed text had been incorporated into the electronic version of the document.

At their request, the session was briefly suspended while hard copies of the revised document were made available to the Delegations of the Bolivarian Republic of Venezuela and the Plurinational State of Bolivia, who confirmed that the required additions has in fact been made.

The Delegation of the EU said that it reserved its right to make comments on the presented text on GRs.