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Convention on Biological Diversity, Traditional Knowledge and the TRIPS Agreement Yovana Reyes Tagle Yovana Reyes Tagle University of Helsinki University of Helsinki
Convention on Biological Diversity, Traditional Knowledge and the TRIPS
Agreement
Yovana Reyes Tagle Yovana Reyes Tagle
University of HelsinkiUniversity of Helsinki
CRITICISM OF THE PATENT SYSTEMCRITICISM OF THE PATENT SYSTEM
Irregular patents grantedIrregular patents granted Legitimizing biopiracy?Legitimizing biopiracy? Rights for the country of origin? Rights for the country of origin? Benefits for the indigenous peoples?Benefits for the indigenous peoples?
Controversial patentsControversial patents
Turmeric (“Use of Turmeric in Wound Turmeric (“Use of Turmeric in Wound Healing” )Healing” )
Neem tree (fungicidal properties)Neem tree (fungicidal properties) Enola bean (yellow bean)Enola bean (yellow bean) ““Apelawa” quinoaApelawa” quinoa ““Ayahuasca” vine (“Da Vine”)Ayahuasca” vine (“Da Vine”)
CBD and the patent systemCBD and the patent system
““The Contracting Parties, recognizing that The Contracting Parties, recognizing that patents and other intellectual property rights patents and other intellectual property rights may have an influence on the implementation may have an influence on the implementation of this Convention, shall cooperate in this of this Convention, shall cooperate in this regard subject to national legislation and regard subject to national legislation and international law in order to ensure that such international law in order to ensure that such rights are supportive of and do not run counter rights are supportive of and do not run counter to its objectives.” Article 16.5 CBDto its objectives.” Article 16.5 CBD
CBD and other international CBD and other international agreementsagreements
““The provisions of this Convention shall not The provisions of this Convention shall not affect the rights and obligations of any affect the rights and obligations of any Contracting Party deriving from any existing Contracting Party deriving from any existing international agreement, except where the international agreement, except where the exercise of those rights and obligations would exercise of those rights and obligations would cause a serious damage or threat to biological cause a serious damage or threat to biological diversity.” Article 22.1 CBDdiversity.” Article 22.1 CBD
Traditional knowledge in the CBDTraditional knowledge in the CBD
Article 8 j) CBDArticle 8 j) CBD ““Subject to its national legislation, respect, preserve Subject to its national legislation, respect, preserve
and maintain knowledge, innovations and practices of and maintain knowledge, innovations and practices of indigenous and local communities embodying indigenous and local communities embodying traditional lifestyles relevant for the conservation and traditional lifestyles relevant for the conservation and sustainable use of biological diversity and promote sustainable use of biological diversity and promote their wider application with the approval and their wider application with the approval and involvement of the holders of such knowledge, involvement of the holders of such knowledge, innovations and practices and encourage the equitable innovations and practices and encourage the equitable sharing of the benefits arising from the utilization of sharing of the benefits arising from the utilization of such knowledge, innovations and practices.” such knowledge, innovations and practices.”
TRIPSTRIPS
Member States want “to reduce distortions and impediments to international trade, and taking into account the need to promote effective and adequate protection of intellectual property rights, and to ensure that measures and procedures to enforce intellectual property rights do not themselves become barriers to legitimate trade” (Preamble of the TRIPS Agreement)
TRIPSTRIPS Article 27 TRIPSArticle 27 TRIPS 1. “…patents shall be available for any inventions, whether
products or processes, in all fields of technology, provided that they are new, involve an inventive step and are capable of industrial application”
2. “Members may exclude from patentability inventions, the prevention within their territory of the commercial exploitation of which is necessary to protect ordre public or morality…”
3. “3. “…Members shall provide for the protection of plant varieties either by patents or by an effective sui generis system or by any combination thereof.”
TRIPS and the public domainTRIPS and the public domain
Article 70 (3) TRIPSArticle 70 (3) TRIPS “There shall be no obligation to restore
protection to subject matter which on the date of application of this Agreement for the Member in question has fallen into the public domain.”
Indigenous peoples view: TK is not in the public domain
TRIPS and disclosure requirementTRIPS and disclosure requirement
Article 29 TRIPSArticle 29 TRIPS 1. “Members shall require that an applicant for a
patent shall disclose the invention in a manner sufficiently clear and complete for the invention to be carried out by a person skilled in the art and may require the applicant to indicate the best mode for carrying out the invention known to the inventor at the filing date or, where priority is claimed, at the priority date of the application.”
2. “Members may require an applicant for a patent to provide information concerning the applicant’s corresponding foreign applications and grants.”
Defensive protectionDefensive protectionDefinitional aspectsDefinitional aspects
Source and country of origin of biological Source and country of origin of biological resourcesresources
Country of origin of genetic resourcesCountry of origin of genetic resources Source of genetic resources and TKSource of genetic resources and TK Supplier country (and country of origin) of Supplier country (and country of origin) of
genetic resourcesgenetic resources
DISCLOSURE REQUIREMENTDISCLOSURE REQUIREMENT
Debate:Debate: TRIPS-CBD amendmentTRIPS-CBD amendment Evidence of PIC and benefit sharingEvidence of PIC and benefit sharing Formal or substantial requirement relating to Formal or substantial requirement relating to
patentabilitypatentability Optional or mandatoryOptional or mandatory Sanctions within or outside the patent systemSanctions within or outside the patent system
DISCLOSURE REQUIREMENTDISCLOSURE REQUIREMENT
Approaches:Approaches: Amendment of the TRIPS AgreementAmendment of the TRIPS Agreement
Article 27Article 27 New Article 29bis: “Disclosure of Origin of New Article 29bis: “Disclosure of Origin of
Biological Resources and/or Associated Biological Resources and/or Associated Traditional Knowledge”Traditional Knowledge”
Amendment of the PCT and PLTAmendment of the PCT and PLT Contractual approachContractual approach
DISCLOSURE REQUIREMENTDISCLOSURE REQUIREMENT
Approaches Developing countries European Union Switzerland Norway US Japan
DEFENSIVE PROTECTION ND DEFENSIVE PROTECTION ND TK DATABASESTK DATABASES
TK and prior art TK databases and prior art
Public disclosure and documentation of TK an “effective and direct solution” and the “most efficient
approach” for the problem of erroneous patents? WIPO
WIPO “documentation toolkit”: guidelines of the IP implications of the documentation of TK in all its stages
DEVELOPMENT AGENDADEVELOPMENT AGENDA
WIPO General Assembly approved the Development Agenda (2007)WIPO General Assembly approved the Development Agenda (2007) 45 recommendations45 recommendations WIPO technical assistance shall be development-orientedWIPO technical assistance shall be development-oriented Access to knowledge and technology for developing countries Access to knowledge and technology for developing countries Promotion of the transfer and dissemination of technology, to the Promotion of the transfer and dissemination of technology, to the
benefit of developing countries benefit of developing countries To approach intellectual property enforcement in the context of To approach intellectual property enforcement in the context of
broader societal interests and especially development-oriented broader societal interests and especially development-oriented concernsconcerns
Call for the IGC “to accelerate the process on the protection of genetic Call for the IGC “to accelerate the process on the protection of genetic resources, traditional knowledge and folklore, without prejudice to any resources, traditional knowledge and folklore, without prejudice to any outcome, including the possible development of an international outcome, including the possible development of an international instrument or instruments”instrument or instruments”
DEVELOPMENT AGENDADEVELOPMENT AGENDA
Committee on Development and Intellectual Property Committee on Development and Intellectual Property Implementation of the recommendationsImplementation of the recommendations
Development Agenda GroupDevelopment Agenda Group ““support for a development-oriented perspective on support for a development-oriented perspective on
intellectual property issues, and the mainstreaming of the intellectual property issues, and the mainstreaming of the Development Agenda across all areas of WIPO’s work”Development Agenda across all areas of WIPO’s work”
The Development Agenda is seen a “shift in the The Development Agenda is seen a “shift in the international perspective of intellectual property (IP): a international perspective of intellectual property (IP): a shift from viewing IP as an end in itself to viewing it as a shift from viewing IP as an end in itself to viewing it as a means to serve larger public goals of social, economic and means to serve larger public goals of social, economic and cultural development” cultural development”
