Geneva, 25 Apr 2006
1. By a note dated April 20, 2006, the Permanent Mission of Japan to the United Nations Office and Other International Organizations in Geneva request that a documentbe circulated as a working document for the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore ("the Committee") at its ninth session.
2. The text of the document as received is published in the Annex to this document.
3. The Intergovernmental Committee is invited to take note of the contents of the Annex.
[Annex follows] The Patent System and Genetic Resources
I. The Relationship between Convention on Biological Diversity (CBD) and the Patent System as for the Premise of Examination
1. The consistency of the Convention on Biological Diversity (CBD) with the patent system has been one of the major points at issue in the recent discussions relating to intellectual property rights, and it is the premise for the examination of various issues concerning the relationship between genetic resources, associated traditional knowledge, and intellectual property rights.
However, as a matter of legal rights and obligations, it is apparent that CBD and the patent system do not conflict with each other and that they are mutually supportive.
A. The Relationship between the CBD and the Patent System
2. Article 22.1 stipulates the following:
The provisions of this Convention shall not affect the rights and obligations of any Contracting Party deriving from any existing international agreement, except where the exercise of those rights and obligations would cause a serious damage or threat to biological diversity.
3. Article 16.5 stipulates the following:
The Contracting Parties, recognizing that patents and other intellectual property rights may have an influence on the implementation of this Convention, shall cooperate in this regard subject to national legislation and international law in order to ensure that such rights are supportive of and do not run counter to its objectives.
4. First of all, based on Article 22.1 of the CBD, it is clear that the provisions of the CBD do not have the direct influence over the current patent system which has been established according to the existing international agreement. Moreover, although Article 16.5 of the CBD provides the cooperation among countries in order for the intellectual property rights to promote and not to run counter to the objectives of the CBD, the Article also makes clear that such cooperation should take place within the framework of "national legislation and international law", which means within the existing international and national patent system.
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