RESTRICTEDWORLD TRADE
ORGANIZATIONIP/C/W/236
11 December 2000
(00-5379)
Council for Trade-Related Aspects
of Intellectual Property RightsOriginal:  English
REVIEW OF THE PROVISIONS OF  ARTICLE 27.3(b) - JAPAN’S VIEW
Communication from Japan
By means of a communication, dated 28 November 2000, the attached paper has been
received from the Permanent Mission of Japan with the request that it be circulated to Members.
_______________
At the meeting of the Council for TRIPS in September 2000, Mauritius on behalf of the
African Group1, India2 and the United States3 submitted papers describing their views on the six
issues4 that the Chair of the Council for TRIPS had set out in relation to the review of Article 27.3(b).
Japan appreciates their efforts and would like to provide its views concerning the six issues on the
review of Article 27.3(b).  Japan's view described below, however, does not prejudice its positions to
the mandate given by Article 27.3(b).
Article 27.1 of the TRIPS Agreement provides for the principle  concerning patentable
subject-matter that patents shall be available for an y inventions in all fields of technology.  On the
other hand, Article 27.2 and 27.3 provide for  exceptions  that the particular subject-matters may be
excluded from patentability.  The first sentence of Article 27.3(b) provides for particular optional
exclusions.5  The second sentence provides for the "exception to exclusion"6 from patentability.  The
third sentence then gives a mandate to review, stating that "the provision of this subparagraph" shall
be reviewed four years after the date of entry into force of the WTO Agreement.
Judging from these structures of Article 27.1 to 27.3, Japan takes the view that the mandated
review under Article 27.3(b) of the TRIPS Agreemen t is limited to the review of the "optional
exclusion" and the "exception to exclusion" which are provided in that particular provision, i.e.
Article 27.3(b).
1. The Link between the Provisions of Article 27.3(b) and Development
It was agreed at the General Council meeting in February 2000 that the mandated review
under Article 27.3(b) should address the impact on the trade and development prospects of developing
                                                     
1 IP/C/W/206.
2 JOB(00)/6091.
3 IP/C/W/209.
4 IP/C/M/26, footnote 5.
5 I.e.:  (i) plants and animals other than microorganisms;  and (ii) essentially biological processes for
the production of plants or animals other than non-biological and microbiological processes.
6 The sentence provides that plant varieties shall be protected by patents or by an effective sui generis
system or by any combination thereof.IP/C/W/236
Page 2
countries.7  The African Group states in their paper that review in relation to "the link between
Article 27.3(b) and development" must address specific issues of whether and how intellectual
property rights lead to relocation of investment to natural-resource-endowed countries, transfer and
dissemination of technology, research and development, and innovation in developing countries.
When considering the mandate given by Article 27.3(b) of the TRIPS Agreement as described
above, the review in relation to "the link between Article 27.3(b) and development" should be limited
to the linkage of developments with "optional exclusion" and "exception to exclusion" from
patentability.  With that in mind, however, Japan wi shes to express its view on the link between patent
protection and development.
First of all, it should be noted that the question of development involves a wide variety of
issues, including the environment for attracting investments of particular countries.  The patentable
subject-matter question is only a small fraction of those issues.
Considering the fact that most of the technologies protected by intellectual property rights are
possessed by the private sector, technologies can be transferred in the most efficient manner when
they are transferred through a market mechanism.  Adequate intellectual property protection of
technology is an important premise based on which the private sector conducts licensing agreements
of its technology.  Lack of adequate intellectual property protection would have detrimental effects fortechnology transfer by the private sector.  Without incentives to the suppliers of technology,
technology transfer would not be facilitated.  Appropriate intellectual property protection in turn gives
large benefits to recipients/users of technology, in  that they would eventually become the producers of
subsequent technology.  This is of particular importance for recipients/users of developing countries.
Japan is one of the countries that have made the transition from a developing to a developed
country.  Based on its own experience, Japan attaches great importance to the value of adequate
intellectual property protection.  In the late 1880s, Japan started to introduce legislation on the
protection of intellectual property.  These early movements resulted not only in a quick catch-up by
Japan with the advanced technology of developed countries, but also in promotion of Japan's own
research and development activities beyond the contemporary state-of-the-art technology ofdeveloped nations.  In the 1920s, a Japanese inventor gained considerable royalty from a company in
a developed country for his invention.  Based on the royalty income, he became an entrepreneur and
established a company that has since become a world-famous Japanese car manufacturer.  His
company was one of the first in Japan to be founded based on royalty-income.
From the early stages of development, many Japanese companies started to introduce patented
technologies from developed countries.  In the 1950s and 60s, particularly, many important
state-of-the-art technologies were introduced to Japan from developed countries in exchange for largeroyalty payment.  The costs have paid off, however, as those introduced technologies boosted
industrial development and promoted research and development in Japan.
Although patent protection is merely one of a wide variety of factors for successful
development as mentioned above, Japan takes the view that the intellectual property system plays an
important role in promoting technology transfer, its dissemination and research and development, aswell as in boosting the economy in both developed and developing countries.
                                                     
7 WT/GC/M/53, paragraph 39.IP/C/W/236
Page 3
2. Technical Issues Relating to Patent Protection under Article 27.3(b)
(a) Distinction between microorganisms and plants and animals
The African Group stated in its paper that incongruencies are raised by the artificial
distinction made between plants and animals (which may be excluded from patentability) and
microorganisms (which may not be excluded).
It should be noted that Article 27.1 provides for the principle  that "patents shall be available
for any inventions in all fields of technology" as opposed to that in Article 27.3(b) which provides for
an exception .  Also, Article 27.3(b) does not provide for mandatory exclusion, but provides for
optional exclusion.  As far as Members are subject to the principle provided in Article 27.1, therefore,
the "incongruencies" referred to in the paper of the African Group would not take place.  Since both
inventions related to plants and animals and inventions related to microorganisms are regarded as
patentable subject-matter in the patent law of Japan, there are no "incongruencies" as seen by Japan.
Attention should be also drawn to the fact th at the notion of categorizing life forms into
plants, animals and microorganisms is widely accepted in international conventions, including the
Convention on Biological Diversity.8  In those international conventions, the term "microorganisms"
should be interpreted "in good faith in accordance with the ordinary meaning to be given to the terms
of the treaty in their context and in the light of its object and purpose" as provided for underArticles 31 and 32 of the Vienna Convention on the Law of Treaties.  Therefore, the general definition
of "microorganisms" as we see in a dictionary should be sufficient to distinguish plants and animals
generally from microorganisms for purposes of the discussion on patentable subject-matter in the
Council for TRIPS, as discussed in the United States' paper.
In the patent practice as well as the Patent Law of Japan, a formal definition of the term
"microorganisms" is not given.  This is, however, because the introduction of such a formal definition
would not be responsive enough to accommodate emergence of new inventions in the rapid evolution
of microbiology.  Therefore, Japan provides a non-exhaustive list of microorganisms instead of a
formal definition.
9
(b) Distinction between inventions and discoveries
The African Group expressed their concerns over the patentability of life forms raised by the
fact that discoveries do not amount to inventions.
In the patent practice of Japan, mere discoveries not involving human intervention are not
considered patentable subject-matter.  Merely di scovering naturally occuring things like an ore or
natural phenomena are not considered inventions.  If the subject-matter involves human intervention
such as isolation or purification, and if the isolated or purified subject-matter was no previously
recognized existence, then it is regarded as an invention.  If naturally occuring things such as
chemical substances or microorganisms have been first isolated artificially from their surroundings in
                                                     
8 Article 2 of the Convention on Biological Diversity.
9 The implementing guideline for biological inventions, which is published by the Japanese Patent
Office in February 1997 and available at http://www.jpo-miti.go.jp/infoe/sisine.htm, defines microorganisms ina non-exhaustive manner as follows:  "The term 'microorganisms' means yeast, moulds, mushrooms, bacteria,actinomyces, unicellular algae, virus, protozoa, etc., an d further includes undifferentiated animal or plant cells
as well as animal or plant tissue cultures."IP/C/W/236
Page 4
nature, they are considered inventions.10  A gene, if isolated and purified from the originating life
form, is also considered an invention as a particular kind of chemical substance.
In addition, for those inventions to be patentable, they must be characterized in the patent
claims by their structure, by parameters, or by other appropriate means.  Not only chemical substances
but also microorganisms and genes could well be characterized in such ways.
For an invention to be patented, it must also be new, involve an inventive step and be
industrially applicable.  If an invention is known to the public, it is not new and is therefore
unpatentable.  However, the mere fact that a microorganism or a gene has existed in nature does not
mean that it has been known to the public.
3. Technical Issues Relating to Sui Generis  Protection of Plant Varieties
It is essential for agricultural development to promote the breeding of new varieties with
excellent characteristics in productivity, quality, disease resistance and so on by protecting plantbreeder's rights and/or patent rights.  In Japan, plant breeder's rights are protected under the Seeds and
Seedlings Law system which is in conformity with International Convention for the Protection of
New Varieties of Plants (UPOV Convention).  Japan considers that a system for the protection of
plant breeder's rights under the UPOV Convention is an "effective sui generis  system" for the
protection of plant varieties set forth in Article 27.3(b) of the TRIPS Agreement.
The African Group stated in its paper that the protection of plant breeder's rights raises the
following issues:
(i) The relationship between the protection of plant breeder's rights and the protection of
farmer's rights (e.g. rights to save, share and replant seeds);  and
(ii) The exemption for other breeders to use protected varieties for further breeding.
As for the first issue, Article 15(2) of the 1991 Act of the UPOV Convention permits that
each contracting party may, within reasonable limits and subject to the safeguarding of the legitimate
interests of the breeder, restrict the breeder's right in relation to any variety in order to permit farmers
to use for propagating purposes, on their own holdings, the protected variety.  This means that under a
UPOV system, traditional farmer's practice may be allowed within reasonable limits in each country.
In relation to the second issue, the 1991 Act of the UPOV Convention also provides in
Article 15(1) that the breeder's right shall not extend to acts done for the purpose of breeding other
varieties.  It is free for others to use protected varieties for further breeding in order to promote the
breeding.
Japan considers that systems for the protection of plant breeder's rights under the
UPOV Convention maintain a proper balance between the breeder's benefit and farmer's rights and
also considers that questions raised by the African Group will be solved by adopting a UPOV system
for the protection of plant varieties.
4. Ethical Issues Related to the Patentability of Life forms
In general, a patent does not guarantee the patent holder unfettered exploitation of the
patented inventions.  A Member may, depending on the specifics of a case and in conformity with
                                                     
10 Because a microorganism exists in nature together with varieties of different microorganisms, human
intervention must be involved to isolate that particular microorganism.  The same applies to isolation andpurification of a chemical substance from its status in nature.IP/C/W/236
Page 5
other WTO agreements, legitimately enforce its national law to prohibit patentees from exploiting
patented inventions for various reasons, including ethical grounds.  Therefore, there is no need to
exclude such an invention from patentability in order to prevent the exploitation of such an invention.
This is the reason why the proviso of Article 27.2 provides that Members may not exclude from
patentability an invention merely because the exploitation of such an invention is prohibited by theirlaw.  This provision implies that Members may prohibit the exploitation of an invention, if there is a
legitimate ground to do so, even if that invention is patentable under their law.
It seems that many of the questions of the "ethical issues related to patentability of life forms"
are to be dealt with by the patentability exclusion for protecting " ordre public  or morality" under
Article 27.2.  Although some Members might wish to review the appropriateness of patentability
exclusion on life forms for the purpose of protecting " ordre public  or morality", it would be within the
scope of Article 27.2 and outside the mandated review of Article 27.3(b).  In the current patentpractice of Japan, practices and technology such as a process for cloning human beings are excluded
from patentability on the grounds that they constitute contravention to public order or morality as
stipulated in Article 32 of the Japanese Patent Law, which is consistent with Article 27.2 of the
TRIPS Agreement.
The African Group expressed their concerns:  (i) that patents over research material may
restrict further research;  (ii) that the cost of drugs keeps escalating due to the required systems of
patent protection;  and (iii) that research increasingly targets products for the affluent rather than for
the general public health.
Regarding the above point (i), Japan wishes to point out the particular WTO panel precedent
11
stating that the use of the patented product for scientific experimentation, during the term of the patent
and without consent of the patent holder, is one of the exceptions to patent rights under Article 30.  It
would mitigate to a large extent the concerns expressed by the African Group that patents over
research material may restrict further research.  In addition, consideration should be given to the other
side of the coin that patents over research material would promote the research and development of
those research materials.
The above point (ii) addresses the question of drug prices in relation to patent protection.
While it is important to ensure adequate access to drugs, it is also important to promote development
of new drugs from the viewpoint of public health and nutrition.  The patent system is an important
basis for promoting development of new drugs.  Inadequate intellectual property protection would
reduce the incentive and therefore negatively impact the development of new drugs.  Attention should
be also drawn to the actual linkage between patents and drug prices.  It is reported that the link
between patents and the price is weak or, in many cases, non-existent due to price levels beingdetermined by many factors – distribution conditions and markups, price controls, inflation, taxes,
etc.
12
The African Group has argued regarding the above point (iii), that is, the impact of patents on
the allocation of research resources and fund.  It can be generally said that, if the needs of society are
greater, the research satisfying these needs is more profitable.  Therefore, such research, particularlythat conducted by the private sector, would tend to target products that address greater needs.  The
patent system facilitates this by giving exclusive rights to successful research results.  If great social
needs exist in the area of public health, research would tend to target products for this area.  If
private-sector research is not targeted to particular products which nevertheless need to be researched,
                                                     
11 Canada – Patent Protection of Pharmaceutical Products, WT/DS114/R, paragraph 7.69.
12 "TRIPS, Pharmaceuticals and D eveloping Countries: Implica tions for Drug Access and Drug
Development " presented by Dr. Harvey E. Bale, Director-G eneral of IFPMA at "WHO Workshop on the TRIPS
Agreement and Its Impact on Pharmaceuticals", Jakarta, Indonesia - 2 May 2000;  available athttp://www.ifpma.org/).IP/C/W/236
Page 6
due to the lack of profitability, then the public sector should step in to target such products through
funding or research.
India raised concern that patents also have the danger of causing economic motives to
supersede ecological ones.13  It can be pointed out, however, that the patent system encourages people
to develop, among other technology, environm entally sound technology to avoid large-scale
environmental damage.  Moreover, as mentioned above, a patent does not give its owner the unlimited
right to exploit the inventions which might cause environmental harm.  Japan takes the view that the
patent system is neutral to ecological concerns.
Finally, Japan wishes to respond to concern expressed by some Members that the effects of
the patent right would extend to original life forms when the invention concerned is a part of the life
form.  Under the patent practice of Japan, the patent right does not extend to the original life form
from which the patented gene was obtained.
5. The Relationship to the Conservation and Sustainable Use of Genetic Material
Some Members propose that the TRIPS Agreement should contain provisions to promote the
conservation and sustainable use of genetic material.  Although it is unclear to Japan how these
particular issues are related to the review of optional exclusion from patentability to be conducted in
the mandated review of Article 27.3(b), we nevertheless wish to respond.
(a) Consistency between the TRIPS Agreement and the Convention on Biological
Diversity
Some Members have insisted that there exists a necessity to harmonize the approach of the
TRIPS Agreement with that of the Convention on Biological Diversity (CBD) as regards the
conservation and sustainable use of genetic resources.14
It is the view of Japan that the TRIPS Ag reement and the CBD are mutually non-exclusive.
Because of the totally different objectives and the flexibility of the provisions of the two treaties, it
would be unlikely that one would confli ct with the other when implemented.
The CBD requires its Contracting Parties to take "legislative, administrative or policy
measures, as appropriate" to implement its relevant provisions.15  There are a variety of ways for
implementing such provisions of the CBD, and Cont racting Parties are permitted to take specific
measures as far as they deem them appropriate.  Japan has been fulfilling its obligations under the
CBD concerning technology transfer mainly by means of education and training, and joint research
and development conducted by both the public and private sectors.  It has been also fulfilling its
obligations of benefit sharing under the CBD main ly by means of governmental fund-granting
activities through bilateral, regional and other international organizations.16  Meanwhile, Japan has
been fully implementing the TRIPS Agreement.  Th erefore, Japan believes that the TRIPS Agreement
and the CBD can be implemented in a non-conflicting manner.  As mentioned above, a certain degree
of flexibility exists for appropriately implemen ting the CBD.  For the sake of mutual benefit of
developing and developed countries, it is desirable to explore at the relevant international fora the
most appropriate ways of implementing the CBD in a consistent manner with the TRIPS Agreement.
                                                     
13 JOB(00)/6091, "Ethical issues related to the patentability of life forms".
14 JOB(00)/6091, "The relationship to the conservation and sustainable use of genetic material".
15 Articles 15.7, 16.3 and 19.1 of the CBD.
16 Some examples of Japan's activity are as follows:  the total amount of Japanese economic
cooperation in the environmental field was 414 billion yen in 1998 (see the Internet Website of the Ministry of
Foreign Affairs at:  http://www.mofa.go.jp/policy/oda/category/environment/2000/coop.html  or
http://www.mofa.go.jp/policy/oda/summary/1999/ov3_1_01.html.IP/C/W/236
Page 7
(b) Obligation to identify the origin of biological resources in a patent application
Some Members insist that patent applicants should disclose the origin of biological resources
and associated traditional knowledge used  in the development of the invention.17  I t  i s  u n c l e a r  t o
Japan how this particular proposal is related to the review of the optional exclusion from patentability
to be conducted in the mandated review of Article 27.3(b).  Nevertheless, Japan wishes to respond ina general manner.
In the context of the CBD, the proposal to oblige the Contracting Parties to require patent
applicants to disclose the origin of biological resources and associated traditional knowledge used in
the invention would go beyond the obligation of the Contracting Parties under the CBD, since the
CBD leaves the specific ways of implementing its relevant provisions to the discretion of each
Contracting Party.
The same would apply to the proposal to oblige WTO Members to require patent applicants to
disclose the origin of the biological resources and as sociated traditional knowledge that are used in the
invention.  Such an obligation would go beyond the obligation of the Members under the
TRIPS Agreement.
India has suggested a connection between Article 29.1 of the TRIPS Agreement and the
proposed disclosure requirement of the origin of an y biological resource used in an invention, stating
that the provision of Article 29.1 absolutely allows seeking such a disclosure of information and that a
problem arises if patent offices do not seek such a disclosure.
18
The first part of Article 29.1 deals with the "enablement requirement".  It relates to the
disclosure requirement for the purpose of ensuring that a disclosure is sufficient to enable a skilled
person to "carry out" the invention.  It is not for the purpose of ensuring "access control" or "benefit
sharing" on biological resources.  Therefore, the asse rtion of India is true only to the extent that the
proposed requirement of disclosing the origin of any biological resource and associated traditional
knowledge is sought in relation to "enablement requirement to carry out an invention".  However,
unless the proposed requirement is sought for the purpose of ensuring sufficient disclosure enabling a
skilled person to "carry out" the invention, it would be an additional requirement which goes beyondthe scope of Article 29.1.
Under the patent laws of the most Members, the enablement requirement for "carrying out" an
invention using biological material is ensured by  means of the "depository system".  Under the
Japanese Patent law, if an invention is related to a microorganism that is not easily accessible  by a
skilled person, the patent applicant must deposit the microorganism with International Depository
Authorities under the Budapest Treaty or other appropriate depository authorities, and must submit to
the relevant patent office the certificate issued by the relevant depository authority.  This is a measureto ensure that a skilled person can "carry out" the invention based on the description of the application
together with the actual microorganism that is deposited with and available from the Authority.  On
the other hand, if a microorganism is easily accessible by a skilled person in the art, the applicant is
not required to deposit it but is simply required to describe how the invention can be carried out by
using the known and publicly accessible microorganis m.  Japan takes the view that this depository
system is sufficient for satisfying the obligation of enablement requirement under Article 29.1 of the
TRIPS Agreement and that further requirement would be beyond the obligation of this Article.  (The
same argument would apply not only to biological  resources but also to associated traditional
knowledge.  There would be very little relevance between the "origin" of traditional knowledge and
"enablement requirement to carry out an invention" under Article 29.1.)
                                                     
17 JOB(00)/6091.
18 Comment on Japan's intervention on agenda item K at the TRIPS Council meeting in June 2000
given by the delegation of India at the TRIPS Council meeting in September 2000.IP/C/W/236
Page 8
If the proposed requirements go beyond the obligations of Members under Article 29.1, some
Members might instead wish to re-write the TR IPS Agreement to introduce the new requirements.
However, we should be cautious to re-write the TRIPS Agreement, because the provisions thereof
strike a balance between rights and obligations of inventors/applicants and third parties, which is the
result of the long-term negotiation of the Uruguay Round.
Firstly, the new requirement would have an impact on the balance described in Article 62.1
that, while Members may require compliance with procedures and formalities as a condition of the
acquisition of patents, such procedures must be reasonable  ones.  Keeping in mind that the question
as to whether it is reasonable or not should be left to Members, Japan is of the view that requiring
patent applicants to disclose the origin of any biological resource and associated traditional
knowledge used in the invention could be unreasonably burdensome to patent applicants, and thereby
upset the present balance.
Secondly, if a new additional requirement is sought only for a particular invention that uses a
biological resource, its conformity with Article 27.1 that a requirement for obtaining patents should be
imposed on any invention in an equal manner regardless of the field of technology needs to be
examined.  It can be generally said that an invention using a biological resource belongs to particular
types of technological fields such as biotechnology or pharmaceuticals.  It is the view of Japan that aheavier burden should not be imposed on any part icular field of invention, as prescribed in
Article 27.1.  The above-mentioned requirement for a "depository system" on inventions related to
microorganisms that is adopted by many Member s would be consistent with the Article 27.1
requirement for equality, as far as the depository system is aiming at compliance with "enablement
requirement to carry out an invention" under Article 29.1, which equally applies to any invention inany field of technology.
(c) Obliging private sectors to share benefits
Some Members suggest that an enforcement m echanism at the WTO is required to ensure
benefit sharing, authorization of access to genetic material, and contractual arrangements between
developing countries and entities seeking genetic material.19  It is unclear to Japan how these issues
are related to the review of the optional exclusion from patentability to be conducted in the mandated
review of Article 27.3(b) of the TRIPS Agreement.  It also seems that the proposed introduction of
new provisions regarding benefit sharing into the TRIPS Agreement is beyond the obligations of the
CBD.
A general way of benefit sharing would be a contractual arrangement that is concluded
between a country offering biological resources and a public and a private entity that wishes to access
such resources.20  Some countries have proposed in several fora the introduction of an international
obligation of monetary benefit sharing to require patentees to pay royalty fees to the holders of
biological materials if the patented invention exploits these materials.  However, it should be noted
that inventions of varying economic value can be made based on the exploitation of the same
biological resource.  That is, the economic value of the patented invention is largely attributed to the
inventive efforts of the inventor as well as the commercialization efforts by the patent holder, and notlargely attributed to a biological resource as such.  Of course, the value of the biological resource as
such should be recognized, and compensation should be paid if it is accessed and used.  For the sake
of balanced benefits of holders of biological resources and inventors/patentees, it is also appropriate
that the benefit sharing be determined upon mutually agreed terms.
21  The conditions of payment,
therefore, should be determined by the contractual agreement concluded at the time of access.
                                                     
19 IP/C/W/206, paragraph 5.5.
20 IP/C/W/209, section 6.
21 Article 15.7 of the CBD:  "Such sharing shall be upon mutually agreed terms".IP/C/W/236
Page 9
6. The Relationship with the Concepts of Traditional Knowledge and Farmer's Rights
(a) Traditional knowledge
Some Members propose examining possible protection of traditional knowledge, and even
suggest the establishment of a new sui generis  system for protecting traditional knowledge which is
different from a sui generis  system for plant variety protection under Article 27.3(b).22  It is unclear to
Japan how these issues can be subject to the mandated review under Article 27.3(b) of the
TRIPS Agreement, which is to be limited to the review of the optional exclusion from patentability
and exception to the exclusion.
If nevertheless we were to discuss the issue, we should at first clarify some issues, such as
what the definition of traditional knowledge is or  who owns it.  This exercise should be done by
collecting and analysing examples.  After that, consideration also must be given as to how traditional
knowledge can be protected under the existing framework of legal protection such as patents, tradesecrets and private contracts.  Discussion on traditional knowledge should not pre-empt the
establishment of new intellectual property systems for the protection of traditional knowledge.  We
should closely follow future discussion at the "WIPO Intergovernmental Committee on Intellectual
Property and Genetic Resources, Traditional Knowledge and Folklore", whose establishment was
approved in September 2000 and is due to begin operations in the spring of 2001.
Some Members raised concerns on patent rights being obtained for subject-matters covered
by traditional knowledge of third parties.
23  Under the Patent Laws of many Members, including
Japan, not only inventions which have been described in documents but also inventions which have
been publicly known or used elsewhere in the world prior to the filing of the patent application
constitute prior art.24  Therefore, traditional knowledge, most of which travels by the word of mouth,
is recognized as prior art under the patent laws of many Members.  Even if a patent right is mistakenly
granted to traditional knowledge, such a patent  right can be revoked through post-grant opposition
procedures.  Patent examiners can have easier access to traditional knowledge if it is documented, and
can effectively examine an invention which is to be denied on the grounds of lack of its
novelty/inventive step over prior-art traditional knowledge.  In this light, efforts by some Members inrecent years at documenting traditional knowledge are highly appreciated.
25
(b) Farmer's rights
The concept of farmer's rights was described in FAO resolution 5/89, adopted on
29 November 1989, as "[f]armers' rights mean rights arising from the past, present and future
contribution of farmers on conserving, improving, and making available plant genetic resources,
particularly those in the centers of origin/diversi ty".  This concept has been incorporated into a
composite draft text of the Revised International Undertaking on Plant Genetic Resources.26  Article
15.2 of the draft text further provides that it is each Party's responsibility to realize farmer's rights and
also that each Party should, as appropriate and subject to its national legislation, take measures to
protect and promote farmer's rights.  Japan supports this approach and considers that WTO Members
should closely follow discussion on the revision of the International Undertaking at FAO.
__________
                                                     
22 WT/CTE/W/156;  JOB(00)/6091.
23 JOB(00)/6091, "Technical issues relating to patent protection under Article 27.3(b)".
24 Japanese Patent Law, Article 29.1.
25 WT/CTE/W/156.
26 CGFRA/CG4/00/2, Article 15.1 "The Parties recognize the enormous contribution that the local and
indigenous communities and farmers of all the regions of the world, particularly those in the centers of regionand crop diversity, have made and will continue to make for the conservation and development of plant geneticresources which constitute the basis of food and agriculture production throughout the world."