RESTRICTEDWORLD TRADE
ORGANIZATIONIP/C/W/163
8 November 1999
(99-4812)
Council for Trade-Related Aspects
of Intellectual Property RightsOriginal:  English
REVIEW OF THE PROVISIONS OF ARTICLE 27.3(b)
Communication from Kenya on behalf of the African Group1
The following is part of a communication, dated 29 July 1999, that has been received from
the Permanent Mission of Kenya.
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1. The review of Article 27.3(b) is complex both in the way it is being dealt with and in its very
substance.  First, there are issues of procedure and interpretation of the scope and mandate of theTRIPS Council on the review process.  Second, ther e are issues relating to the review of the
substantive provisions of the Article itself.  For the African Group, these issues need to be resolved
speedily for there to be progress in the light of the up-coming Seattle Ministerial Conference.
Part 1 - On procedures and interpretation
Nature and scope of review
2. The question of interpretation of the nature and scope of the review of Article 27.3(b) still
remains to be resolved.  The debate is about whether Article 27.3(b) provides for the review of the
implementation of the provisions therein, or for the review of the substantive provisions of the Article
itself. It is our view that the review mandated and meant is a review of the substance of the
subparagraph itself, and is not meant to be confined to the implementation of the subparagraph.  Thisis clear from the wording of the last sentence of Article 27.3(b):  "The provisions of this subparagraph
shall be reviewed four years after the date of entry into force of the WTO Agreement."
Proposal
3. Members will need to clarify the mandate of the TRIPS Council on this issue.  It is the firm
understanding of the African Group that the mandate  of the Council is to review the substantive
provisions of Article 27.3(b). Since no provision is made for review of implementation of this specific
Article (except implicitly in the context of th e overall review scheduled for 2000 in Article 71.1)
members of the African Group consider it appropriate that any information (to be) submitted under
the current review will not be used for the purpose of reviewing the implementation of the provisionsof this Article.
                                                     
1 This document reproduces the part relevant to the review of the provisions of Article 27.3(b) in a
communication that was distributed as WT/GC/W/302 dated 6 August 1999. At the meeting of the Council for
TRIPS of 20-21 October 1999, the representative of Kenya requested that this part of the communication becirculated as a formal submission to the Council for TRIPS as well.IP/C/W/163
Page 2
Timing for implementation of Article 27.3(b) provisions
4. The review of the provisions of Article 27.3(b) scheduled for 1999 has been ongoing since the
beginning of the year.  On the other hand, the deadline for implementation of the obligations by
developing countries of the TRIPS Agreement is January 2000.
5. In effect, the review is scheduled to precede the implementation of obligations undertaken by
developing countries.  Developing countries have as yet not had sufficient experience with the
operation of the Agreement and hence no prior opportunity to conduct impact assessment studies of
implications resulting therefrom.
6. Furthermore, the review, if undertaken in 1999 will pre-empt the outcome of deliberations in
other related fora such as CBD, UPOV, FAO, International Undertaking on Plant Genetic Resources,
and the development of an OAU model law on Community Rights and Control of Access toBiological Resources.  These are important fora dealing with Article 27.3(b) issues (from a
developmental perspective) which the TRIPS Council cannot afford to ignore.
7. The process of reviewing the substantive provisions of Article 27.3(b) could well extend to
beyond 2000, and it could result in changes to the provisions.  It would thus be premature for
developing countries to implement the subparagraph by January 2000.
Proposals
8. Members of the African Group consider it appropriate that the implementation deadline
should be extended to take place after the completion of the substantive review of Article 27.3(b).
The period given for implementation of the provisions should be the same as that allowed inArticle 65(1) and (2), namely, five years from the date the review is completed.  This period is
provided to allow developing countries to set up the necessary infrastructure entailed by the
implementation.
Part 2 - On substantive provisions
Artificial distinctions between biological and microbiological organisms and processes
9. There is lack of clarity on the criteria/rationale used to decide what can and cannot be
excluded from patentability in Article 27.3(b).  This relates to the artificial distinction made between
plants and animals (which may be excluded) and mi cro-organisms (which may not be excluded); and
also between "essentially biological" processes for making plants and animals (which may be
excluded) and microbiological processes.
10. By stipulating compulsory patenting of micro- organisms (which are natural living things) and
microbiological processes (which are natural processes), the provisions of Article 27.3 contravene the
basic tenets on which patent laws are based: that substances and processes that exist in nature are a
discovery and not an invention and thus are not patentable.  Moreover, by giving Members the option
whether or not to exclude the patentability of plants and animals, Article 27.3(b) allows for life formsto be patented.
Proposals
11. (a) The review of the substantive provisions of Article 27.3(b) should clarify the 
following:
- Why the option of exclusion of patentability of plants and animals does not extend to
micro-organisms as there is no scientific basis for the distinction.IP/C/W/163
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- Why the option of exclusion of patentability of "essentially biological processes"
does not extend to "microbiological processes" as the latter are also biological
processes.
(b) The review process should clarify that plants and animals as well as microorganisms
and all other living organisms and their parts cannot be patented, and that naturalprocesses that produce plants, animals and other living organisms should also not be
patentable.
Clarifying the option of a sui generis  system for plant varieties
12. Article 27.3(b) provides for protection of  plant varieties by either a patent, a sui generis
system or a combination of both.  The implementatio n of the provision in respect of plant varieties
needs to be clarified to allow developing countries to:
- Meet their international obligations, for example under the Convention on Biological
Diversity, and the FAO International Undertaking for Plant Genetic Resources;
- Satisfy their need  to protect the knowledge and innovations in farming, agriculture
and health and medical care of indigenous people and local communities.  The
resolution of this issue affects the food security, social and economic welfare, and
public health of people in developing countries. These concerns are central and can be
taken into account under Articles 7 and 8 of the TRIPS Agreement, when Members
take measures to implement TRIPS.
- To protect human, animal and plant life and to avoid serious prejudice to the
environment.  Exclusions from patentability for these purposes are permitted under
Article 27(2) of the TRIPS Agreement.
Proposal
13. After the sentence on plant variety protection in Article 27.3(b), a footnote should be inserted
stating that any sui generis  law for plant variety protection can provide for:
(i) the protection of the innovations of indigenous and local farming communities in
developing countries, consistent with the Convention on Biological Diversity and the
International Undertaking on Plant Genetic Resources;
(ii) the continuation of the traditional farming practices including the right to save,
exchange and save seeds, and sell their harvest;
(iii) preventing anti-competitive rights or practices which will threaten food sovereignty
of people in developing countries, as is permitted by Article 31 of the
TRIPS Agreement.
Relation between Article 27.3(b) and CBD and the International Undertaking on Plant Genetic
Resources
14. The CBD aims to protect the rights of indigenous people and local farming communities and
to protect and promote biological diversity.  The International Undertaking on Plant Genetic
Resources (under the FAO) seeks to protect and prom ote farmers' rights and to conserve plant genetic
resources.  These  are international obligations undertaken by States, including most of the Membersof the WTO.  It is therefore imperative that Article 27.3(b) recognize the principles, objectives and
measures planned and proposed under the CBD and the International Undertaking.  By mandating orIP/C/W/163
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enabling the patenting of seeds, plants and genetic and biological materials, Article 27.3(b) is likely to
lead to appropriation of the knowledge and resources of indigenous and local communities.
Proposal
15. The review process should seek to harmonize Article 27.3(b) with the provisions of the CBD
and the International Undertaking, in which the conservation and sustainable use of biological
diversity, the protection of the rights and knowledge of indigenous and local communities, and the
promotion of farmers' rights, are fully taken into account.
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