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Bioresources, IPR
&

WTO Regime
in 21
st

Century

P. Pushpangadan

National Botanical Research Institute

(Council of Scientific &Industrial Research),

Rana Pratap Marg, Lucknow
-
226001

July 20, 2004 IIM, Lucknow

WORLD TRADE AND ECONOMIES:
THE PARADIGM SHIFT


“Resource



based

economies’

to

‘Knowledge


based

economies’



21

st

Century

will

be

the

Century

of

Knowledge”
……



A

nation’s

ability

to

convert

knowledge

in

to

wealth

and

social

good

through

the

process

of

innovation

will

determine

its

future”

(

R

A

Mashelkar,

2001
)

21
st

Century

21
st

century is the century of Biology powered
and propelled by scientific knowledge and
technological expertise

Three technologies namely



Biotechnology



Herbal technology



Information technology (Bioinformatics)

are going to be the most powerful elements
that are crucial for prosperity and welfare for
the people of nations.

Genesis of the Global Concern on
Biodiversity


First

discussed

in

1972

U
.

N
.

Conference

at

Stockhlom



U
.

N
.

General

Assembly

by

a

resolution

on

15
th

December

1972

established

UNEP
.

.



First

Governing

Council

of

UNEP

met

in

1973

identified

Conservation

of

Nature,

Wildlife

and

Genetic

Resources

as

Priority

areas
.



The

World

Commission

on

environment

and

Development

(WCED)

was

constituted

in

1983
.



WCED

submitted

its

report

‘Our

Common

Future’

in

1987

called

for

Conservation

of

Biodiversity

for

Sustainable

Development
.


Genesis of the Global Concern on
Biodiversity
(Contd..)


UNEP

constituted

an

ad
-
hoc

Working

Group

of

Technological

and

Legal

experts

to

prepare

an

international

legal

instrument

for

conservation

and

sustainable

use

of

Biodiversity

which

resulted

in

‘CONVENTION

ON

BIOLOGICAL

DIVERSITY’

(CBD)
.



171

countries

signed

CBD

in

June

1992

during

the

Earth

summit

at

Rio

de

Janeiro
.



CBD

came

-

into

force

as

an

International

Law

on

29
th

Dec
.

1993
.


Genesis of the Global Concern on
Biodiversity
(Contd..)



India ratified CBD on 18
th

February 1994 and
came into force from 19
th

May 1994


186 countries are now parties to CBD (as on
Feb 2004)


OBJECTIVES OF CBD



Conservation of Biological Diversity



Sustainable use of its components



Fair and equitable use of the benefits arising out of


the utilization of genetic resources


Chronology of

Patent/Monopolistic Rights


700 B.C.


Greece


Idea

of

Monopolistic

Rights/Privilege


15
th

Century


Italy


Patent

introduced


1421


Republic of
Florence


First

known

patent

grant

by

a

“State”

to

an

inventor


1474


Venice


Patent

Ordinance





Great
Britain


Granting

rights

and

privileges

to

inventors

by

Queen

Elizabeth

I


1623*


Great
Britain


Statute

of

Monopolies

proposing

grant

of

exclusive

rights

to

inventors

for

new

inventions

for

a

period

of

14

years
.


*

In

1623
,

Great

Britain

proposed

granting

exclusive

rights

for

new

inventions

with

a

term

of

14

years

through

an

act

of

the

Parliament,

known

as

the

Statute

of

Monopolies

Act

of

1623
.

It

was

only

towards

the

end

of

the

eighteenth

century

and

during

the

nineteenth

century

that

comprehensive

patent

statutes

got

formalized

in

various

countries,

including

France

and

USA
.





1883 A.D.


Paris Convention for the Protection of Industrial Property


1886 A.D.


Berne Convention for the Protection of Literary and Artistics Works


1891 A.D.


Madrid Agreement Concerning the International Registration of Trademarks


1947 A.D.


Formation of General Agreement on Tariffs & Trade (GATT)


1958 A.D.


Lisbon Agreement for the Protection of Apellations of Origin and their International
Registration


1961 A.D.


Rome Convention for the Protection of Performers, Producers of Phonograms
and Broadcasting Organizations


1967 A.D.


Decision to form World Intellectual Property Organization (WIPO)


1970 A.D.


WIPO came into being at Geneva


1970 A.D.


Patent Cooperation Treaty (PCT)


1974


WIPO became a UN Agency


1977 A.D.


Budapest Treaty on the International Recognition of the Deposit of
Microorganisms for the Purpose of Patent Procedure


1986
-
1994


GATT Ministerial Meetings (Uruguay Round Conference
-

URC)


1994 A.D.


Final Round of URC at Marrakesh and declaration of the Final Act to form
WTO. Decision to form WTO on 15
th

April 1994


1995 A.D.


World Trade Organization (WTO) came into being


World Intellectual Property Organization (WIPO) & World Trade
Organization (WTO)


The fundamental conflicts between
CBD and WTO


CBD

recognizes

the

sovereign

rights

of

nations

over

their

biological

resources

and

associated

knowledge

systems
.


Do

not

recognize

any

informal

knowledge/

innovations

of

traditional

communities

for

intellectual

property

rights
.



Do

not

insulate

Traditional

Knowledge

(TK)

from

intellectual

piracy
.


IPR & TK


IPR
:

The

prime

driving

force

behind

industrial

growth

and

development

in

the

19
th

&

20
th

centuries
.



Do

not

recognize

the

informal

system

of

innovation

of

indigenous

people
.



Do

not

provide

mechanism

for

compensation

or

benefit

sharing

with

indigenous

people
.

IPR & TK
(Contd..)


IPR

laws

in

general

ignore

the

interest

of

traditional/local

communities
-


because

their

concept

of

intellectual

property

and

resource

rights

are

different

from

those

of

the

advanced

societies

of

developing

countries

and

the

developed

North

countries
.


But

there

are

ways

in

which

these

laws

can

serve

the

interests

of

these

communities
.


However,

acquiring

and

defending

IPR

protection

require

access

to

information,

good

legal

advice

and

financial

resources
-
which

are

mostly

beyond

the

reach

of

most

of

the

indigenous

people
.

International Movements for Protection
of TKS


First

International

Congress

on

Ethnobiology

at

Belem,

1987
,

came

out

with

the

‘Declaration

of

Belem’
.



The

declaration

recognized

a

basic

obligation

that

procedures

to

be

developed

to

compensate

native

people

on

their

knowledge

and

on

their

biological

resources
.



Second

International

Congress

on

Ethnobiology

at

Kunming,

China

in

1990

resolved

to

establish

a

Global

Action

Plan,

The

“Kunming

Action

Plan”

for



Specific

and

urgent

action

to

stop

the

destruction

of

biological

and

cultural

diversity

as

mandated

in

the

‘Declaration

of

Belem’
.



Global

Coalition

for

Biocultural

Diversity

to

unite

the

indigenous

people,

scientists

and

environmentalists

concerned

with

the

protection

of

indigenous/

local

people

rights
.


Relevant Provisions of CBD


Article

3

recognizes

the

sovereign

rights

of

States

over

their

biological

resources
.



Article

8
(j)

underlines

the

need

to

protect

TK

and

points

to

the

potential

benefits

to

be

realized

from

such

knowledge

through

involvement

of

its

holders

and

equitable

benefit
-
sharing
.


Article

15

states

that

when

access

to

genetic

resources

is

granted,

it

shall

be

on

mutually

agreed

upon

terms

and

subject

to

Prior

Informed

Consent
.


Incentives

to

biodiversity
-
rich

countries

to

conserve

and

sustainably

use

their

genetic

resources,

including

joint

research,

access

to

&

transfer

of

technology

(Articles

15
,
16
)
.



Relevant Provisions of CBD

(Contd...)



Article

16
.
2

addresses

issues

surrounding

the

access

to

and

transfer

of

technology,

governed

by

patents
.



Article

16
.
5

anticipates

the

difference

in

objectives

between

IPR

regimes

and

the

CBD

and

seeks

to

ensure

that

IPRs

don't

run

counter

to

the

CBD
.



Relevant Provisions of TRIPs on
Biological Resources


Under

Article

27
,

virtually

all

inventions

are

to

be

patented

if

they

are

new,

involve

an

innovative/inventive

step

and

are

capable

of

industrial

application
.



Exceptions

to

patentability

include

plants,

animals

(

other

than

microbes)

and

biological

processes

for

the

production

of

the

above
.

However

plant

varieties

must

be

protected

either

by

sui

generis

or

by

patenting

(
27
.
3
(b))
.

TRIPS
-
CBD Relationship



Absence

of

explicit

compatibility,

Difference

of

approach

and

priority

given

to

issues

which

are

ultimately

related
.

This

has

led

to

violation

of

the

CBD

(Articles

8
,
15

&
16
)
.



TRIPs

ignores

a

vast

range

of

valuable,

traditional

knowledge

(TK)

because

it

doesn't

meet

the

standards

of

patentability
.



TRIPS
-
CBD Relationship

(Contd..)



TRIPs

undermines

CBD

in

cases

of

biopiracy,

by

putting

the

burden

of

proof

on

the

source

country

rather

than

patentee
.

Identification

of

unique

source

material

as

required

in

Art
.
29

of

TRIPs

is

insufficient
.

Lack

of

transparency

in

the

patent

application

procedure
.



TRIPs

doesn't

require

the

recognition

of

domestic

laws

protecting

access

to

genetic

resources

and

TK

and

subsequent

benefit

sharing
.


IPR Issues / Benefit Sharing

Strategies


Appropriate

Procedures

for

IPR

Protection/Benefit

sharing


Documentation

&

Registration

of

TK



Medicinal

plant

use

&

Conservation

at

local

,

state

and

national

level
.


Contribution

to

TKDL

&

TKRC


Value

addition

to

TK

&

Indigenous

Medicinal

Plants



Scaling

up

IPRs


Herbal

drugs,

Pharmaceuticals,

Natural

products

&

byproducts,

Nutraceuticals,

Functional

foods,

etc
.

Strength of India in Biodiversity


Rich

in

all

levels

of

biodiversity

species,

genes,

habitat


Rich

in

cultural

diversity

that

generated

rich

fund

of

indigenous

knowledge

systems


Humanity

has

tapped

only

a

fraction

of

this

nature’s

vast

genetic

library


Over

70
-
80
%

genetic

resources

of

India

and

other

South

Asian

countries

are

hitherto

untapped
.


Excellent

opportunity

for

hunting

novel

genes,

drugs,

pharmaceuticals,

new

chemicals/raw

materials

for

new

industrial

ventures
.



Bioprospecting and the new IPR regime

Given

the

global

trends

in

capturing

the

intellectual

property

markets,

the

Third

World

nations

like

India

needs

to

look

ahead

for

the

best

possible

ways

and

means

by

which

they

can

generate

IPR

and

build

up

IPR

covered

bioindustrial

regimes
.


Biotechnology

(BT),

Information

Technology

(IT)

and

Herbal

Technology

(HT)

are

the

three

fast

emerging

and

powerful

areas

of

R&D

in

current

century
.

The

rich

biodiversity,

associated

knowledge

systems

and

human

resources

etc
.

are

the

strength

of

Asia
-
pacific

countries,

and

therefore

have

the

best

opportunity
.

Chemical

Prospecting


Drugs

and

pharmaceuticals


Pesticides


Cosmetics


Food

additives


Other

industrially

valuable



Chemical

products

Bioprospecting

Gene

Prospecting



Genetic

engineering


Crop

development


Fermentation


Cell

culture



Bionic

Prospecting


Designs

Sensor

technologies

Architecture


Bioengineering


Biomodeling


Bioprospecting: Linkages and leads

Biodiversity
& IK/TK

Conservation


Sustainable
use

Benefit
sharing

Bioinformatics


IPR

Biotechnology

Information
technology

Herbal
technology

Bioprospecting


Drug development


Pharmaceuticals


Agrochemistry


Cosmetics


Proteins


Enzymes


New crop varieties


GMOs


GM foods


Designs etc.