JOB(00)/7853
Council for Trade-Related Aspects of Intellectual Property Rights
11 December 2000
NON-PAPER BY SINGAPORE
During the meeting of the Council for TRIPS that took place from 27 to 30
November and 6 December 2000, the following text was made available for
distribution by the delegation of Singapore.
ARTICLE 27.3(b)
I. PATENTS ON MICROORGANISMS, PLANTS AND ANIMALS
Biotechnology is an industry where companies and universities are spending
large amounts of money on research and development. This investment on
biotechnological research has led to the discovery of new genetic
information, the invention of new biological and microbiological processes
and even new plant and animal forms. Many of these biotechnological
innovations have significant medical and industrial applications and are
clearly of social and commercial value. It is only fair that the
intel1ectual property created by research and development in biotechnology
be recognized and protected through patents.
The criteria for patentability are contained in Article 27.1 of the TRIPS
Agreement, i.e. the subject-matter must be: (i) new; (ii) involve an
inventive step; and (iii) capable of industrial application. Except for
reasons of public order and morality, Singapore believes that biological
innovations deserve patent protection in the same manner as that accorded
to other areas of science and industry. Accordingly, under the Singapore
Patents Act, microorganisms, plants and animals are patentable. The
Singapore Patents Act also provides for the patenting of plant varieties.
Article 27.3(b) makes a distinction between the level of protection to be
given to microorganisms and to plants and animals. It currently provides
for the patenting of: (i) microorganisms; and (ii) non-biological and
essentially microbiological processes. Given the fact that patents have
already been awarded for microorganisms in a number of countries, the
review of Article 27.3(b) should not lead to a lowering of intellectual
property protection for biotechnological innovations. Singapore thus sees
the status quo as the starting-point. We would therefore 1ike the Article
27.3(b) review to focus on whether patent protection should be extended to
all new inventions of plants and animals.
Some have argued that there could be some ethical concerns in granting
intellectual property rights for new life forms and thereby reducing life
forms to commodities. We acknowledge that ethica1 issues thrown up by
biotechnological advances should be treated carefully. However, we also
note that, today, humans own and trade in farm animals as like other
agricultural commodities. Hence, it is not difficult: to envisage that
humans can claim intellectual property rights over forms of plants and
animals that are the result of inventions. Of course, the granting of
patents for new inventions of plants and animals does not preclude other
regulations on the use of such plants and animals for moral, health and
environmental reasons as contained in Article 27.2.
Some have also pointed out shortcomings in the patent system in the
granting of patents for: (i) mere discovery of existing organisms or
genetic information; (ii) for naturally occuring substances; (iii) for
"prior art" which is not widely known, e.g. traditional knowledge. Such
concerns should be addressed in a technical manner by looking at ways of
improving the patent examination process, e.g. opposition procedures, and
by applying rigorously the criteria of: (i) novelty; (ii) nonobviousness;
and (iii) industrial utility to patent applications. In this regard, we
note that WIPO is now embarking on initial discussions on the possible
harmonization of patent laws that could eventually minimize disputes over
the award of patents. Biotechnology patents is a new filed and it is
therefore not surprising that various difficulties are encountered in
applying the standard tests of patentability. However, oppositions to the
way patents have been granted in certain instances should not mean that
patents should not be granted for all inventions of plants and animals.
The different level of protection for new microorganisms vs. new plants and
animals is but a reflection of the young state of biotechnological
innovations. At the moment, applications and granting of patents for new
microorganisms are more common than for new plants and animals, simply
because genetic engineering techniques are more easily applied to
single-cell organisms. However, we believe that, increasingly, new
techniques would give rise to more inventions of multicellular genetically
modified plants and animals. Therefore, we would argue for patent
protection to be extended to plants and animals. The principle of giving
intellectual property protection to inventions should not be limited to
only what is made possible by today's biotechnology.
II. Plant Varieties
Article 27.3(b) requires WTO Members to provide for protection of plant
varieties either by patents or by an effective sui generis system or by any
combination of the two systems. Singapore protects new plant varieties
through patents. Some countries have chosen to use the UPOV system. We
believe that the Council for TRIPS would benefit from hearing from WTO
Members, which are not using the patent or UPOV systems, about their sui
generis systems for protecting plant varieties. This would help to develop
a better understanding of the basic level of protection for plant varieties.
What is the basic level of protection for plant varieties under the TRIPS
Agreement? Whereas patent protection for plant varieties uses the
well-known criteria of novelty, non-obviousness and industrial
applicability, sui generis systems for plant variety protection could have
different or additional criteria such as: (i) being new and distinct from
existing varieties; (ii) having uniform defining characteristics; and (iii)
being stable through reproduction. Whereas the patent system gives
exclusive rights to the owners of plant varieties, The UPOV system allows
for breeder's exemptions, i.e.: (i) the protected plant varieties should be
available for non-commercial use; (ii) for experimental purposes; and (iii)
for breeding new varieties.
Singapore supports the inclusion of breeder's exemptions as contained in
UPOV. We can also support the right of farmers to save their seeds for
future harvesting. Other than these exemptions, we believe that the patent
system and UPOV system would be useful references for the basic level of
protection for plant varieties in any sui generis system.
II. Plant Varieties
Traditional knowledge is a relatively new and multifaceted area. In the
context of our discussion on patentability, we are not sure if it is useful
to talk about commitments on protecting traditional knowledge when we are
still not clear as to the specific scope of traditional knowledge. Hence,
we look forward to discussions in other forums such as WIPO and UNCTAD on
intellectual property protection for the innovations of indigenous
communities based on their traditional knowledge. At the moment, several
fundamental aspects of traditional knowledge still need further discussion,
such as:
What subject-matters can count as traditional knowledge? Does traditional
knowledge refer to age-old know-hows that are not widely known?
What aspect of traditional knowledge is considered as public knowledge,
trade secrets or innovations?
Can the existing intellectual property system protect innovations or
non-industria1 communities? Is there a need to deve1op a different approach
to intellectual property protection now?
We make a distinction between the conservation of traditional knowledge and
the protection of innovation based on traditional knowledge. The
conservation of old knowledge should not stifle the creation or new
knowledge. We welcome the development of databases to capture and document
traditional knowledge to conserve them and to faci1itate the establishment
of "prior art" in patent examinations. At the same time, innovations based
on traditional knowledge should be accorded the same level of protection as
other innovations.
Innovation is encouraged by granting inventors exclusive intellectual
property rights for only a limited period of time. Subsequently, the new
knowledge enters into the public domain and provides the base for further
innovations. This is the premise of the current patent system. Some
delegations seem to be proposing that innovations derived from traditional
knowledge in public domain should benefit communities that have contributed
to the development of that traditiona1 knowledge. There have been
suggestions to consider a different approach for protecting traditional
knowledge. While Singapore supports moves to find ways to protect
innovations by non-industrial communities, we would need to consider
carefully the implications of having differentiated systems of intellectual
property protection for public domain knowledge developed by industrial and
non-industrial communities.
IV. ACCESS TO GENETIC RESOURCES
Singapore is a party to the Convention on Biological Diversity (CBD) since
1995. The CBD recognizes the sovereign rights of States over their natural
resources, and states that the authority to determine access to genetic
resources rests with national governments. We recognize that existing
genetic resources have provided the basis for biotechnological innovations.
The availability of the genetic resources, the efforts to discover the
genetic resources and the further efforts to create something new out of
these genetic resources all contribute to the va1ue of new products derived
from genetic resources. One cannot object to the principle of
benefit-sharing on a commercia1ly viable, fair and transparent basis.
However, the CBD also leaves it to States that are parties to the
Convention to decide the term or access to their genetic resources, e.g.
whether to require prior informed consent. Some countries have enacted
legislation to regulate access to their genetic resources. Others have not.
We should keep this flexibility. To use the TRIPS Agreement to enforce such
benefit-sharing arrangements may not be the best way to proceed as it could
mean negotiating a common arrangement to apply to all countries. This is
because countries concerned would want to set up difficult benefit-sharing
arrangements to respond to different national priorities.