Singapore Position on TRIPS


Council for Trade-Related Aspects of Intellectual Property Rights

11 December 2000


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)


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.


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.

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