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PATENTS AND BIO-RESOURCES


The debate on the link between patents and bio-resources/TK continues to rage. The latest is an AIPPI report which is skeptical of any move to link up concerns of bio-resource protection/TK expropriation with patent regimes. An MIP news item states:

“The patent system should not be used for controlling whether IP owners follow rules on using genetic resources and traditional knowledge laid down in the Convention on Biological Diversity, according to members of the International Association for the Protection of Intellectual Property (AIPPI).

At its annual congress held in Gothenburg last week, the AIPPI voted in favour of treating traditional knowledge in the public domain in the same way as other information when assessing the patentability of inventions.

And the IP lobby group said that countries that adopt laws requiring patent applicants to declare the source of genetic material and traditional knowledge should only oblige them to identify to the best of their knowledge the source from which the inventor obtained the genetic material or the information based on traditional knowledge.”

The AIPPI resolution says that “ways and means other than patent applications should be developed to deal with prior informed consent and access and benefit sharing concerning genetic resources and traditional knowledge connected with it”.

It appears that the fight is not over whether TK/biodiversity/bio-resource expropriation ought to be actionable at all, but as to the means by which these concerns are redressed. AIPPI which is a patent friendly body is obviously sympathetic to the cause of patent owners, who see this as an undue obligation to fulfill whilst making and prosecuting patent applications. However, developing countries see the patent system as a critical machinery to help redress these concerns. As one can appreciate, by including this within a patent system, developing countries are avoiding some major enforcement problems. A link to a patent system would ensure compliance with bio-diversity/TK concerns much better (within the present context) than through other mechanisms that are currently available. And developing countries know this only too well!! Nonetheless, it is important to work through the details of what kind of information should be disclosed in a patent application, how it is to presented etc. I came across a presentation by Dr Stephen Smith, a patent consultant, which I thought raised some of the administrative issues in implementing this rather well. But once these are taken care of, I can’t see a principled objection to including this within patent regimes. But then international IP (read “TRIPS”) was never really about principles, was it??

Shamnad Basheer

Shamnad Basheer

Prof (Dr) Shamnad Basheer founded SpicyIP in 2005. He is currently the Honorary Research Chair of IP Law at Nirma University and a visiting professor of law at the National Law School (NLS), Bangalore. He is also the Founder of IDIA, a project to train underprivileged students for admissions to the leading law schools. He served for two years as an expert on the IP global advisory council (GAC) of the World Economic Forum (WEF). In 2015, he received the Infosys Prize in Humanities in 2015 for his work on legal education and on democratising the discourse around intellectual property law and policy. The jury was headed by Nobel laureate, Prof Amartya Sen. Professional History: After graduating from the NLS, Bangalore Professor Basheer joinedAnand and Anand, one of India’s leading IP firms. He went on to head their telecommunication and technology practice and was rated by the IFLR as a leading technology lawyer. He left for the University of Oxford to pursue post-graduate studies, completing the BCL, MPhil and DPhil as a Wellcome Trust scholar. His first academic appointment was at the George Washington University Law School, where he served as the Frank H Marks Visiting Associate Professor of IP Law. He then relocated to India in 2008 to take up the MHRD Chaired Professorship in IP Law at WB NUJS, a leading Indian law school. Prof Basheer has published widely and his articles have won awards, including those instituted by ATRIP and the Stanford Technology Law Review. He is consulted widely by the government, industry, international organisations and civil society on a variety of IP issues. He also serves on several government committees.

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