TITLE: Relevant extracts from the Philippine Department of Agriculture's position on the 1999 review of TRIPS Article 27.3(b) AUTHOR: William D. Dar, Acting Secretary of Agriculture DATE: 14 April 1999 NOTE: The Philippine Department of Agriculture has officially communicated to the Department of Foreign Affairs its views on the Philippine position for the 1999 review of TRIPS Article 27.3(b) at WTO. The key points are: 1) A sui generis system for the purpose of TRIPS 27.3(b) does not have to be in line with UPOV. 2) The Philippine position is no patents on life forms. 3) The Philippines can uphold Article 27.3(b). 4) However, the 1999 review should be used to get biodiversity out of the jurisdiction of WTO in order to protect the rights of farmers and local communities. 5) Another option for the review is to ensure that TRIPS prohibits the patenting of inventions derived from biodiversity and local knowledge in the public domain. Republic of the Philippines Department of Agriculture [DA] Office of the Secretary 14 April 1999 ON EXCEPTIONS FROM PATENTABILITY 1. The DA supports [...] maintain[ing] the position that there shall be no patent protection on life forms such as plants and animals. This is in accord with all policy positions the Philippines has espoused and defended in international negotiations be it at the WTO, Convention on Biological Diversity (CBD), and at the Food and Agriculture Organization (FAO). ON THE GRANT OF SUI GENERIS PROTECTION FOR PLANT VARIETIES 2. We agree [...] that such a system of protection (especially if it has to be a sui generis system of protection), need not totally conform with the 1991 Union for the Protection of Plant Varieties (UPOV) system, although the DA has been considering adopting a sui generis form of plant variety protection rather than patents. A sui generis protection was chosen as an option because the requirements of patentability -- an inventive step -- would be feasible only in countries with advanced technology in microbiology. [...] It should be noted that the UPOV system of protection or the sui generis system already allows some flexibilities which include the recognition of indigenous cultural communities as breeders and the rights of farmers to save seed. However, such issues relating to breeders' rights, farmers' rights and community rights have yet to be entirely understood in the discussions at the UPOV and the WTO. The WTO Agreements are currently silent on the issue of how to protect and promote the rights of indigenous, agricultural and other local communities. This concern is serious and deserves discussion and elaboration alongside any sui generis rights on plant varieties. The DA encourages the Philippine Mission in Geneva to include this matter as an integral part of the Philippines' position before the TRIPS Council review. Meanwhile, the DA is currently advocating for a sui generis legislation on plant varieties taking into consideration the protection of community intellectual property rights pursuant to the Indigenous People's Rights Act of 1997 or Republic Act 8371. [...] 3. The proposal to retain Article 27.3(b) of the TRIPS Agreement is acceptable. To further protect the rights of farmers and local communities, the review process should try to get life forms (plants and animals) and biodiversity (and indigenous knowledge) out of the jurisdiction of WTO. Another option that can be taken is to add a simple paragraph to enshrine the concept of "public domain." Public domain is the tangible and intangible goods or creations that are not appropriate under private law. In many countries influenced by Roman traditions, the state is the ultimate owner of all natural resources in its territory. Enhancing public domain could add a certain level of protection to community resources and even, to a certain extent, associated knowledge contained therein. Article 27.3(b) could thus be amended as follows: Members may also exclude from patentability (a) ... (b) ... (c) inventions which are essentially derived from biological materials and associated knowledge in public domain. This would allow countries to exclude from patentability inventions based on biodiversity and related knowledge in the public domain. Technically, such inventions are not patentable because they lack the novelty required of a patent. Hence, this will make the level of the demand for innovativeness higher for patent applicants. [...] WILLIAM D. DAR Acting Secretary