Bringing about compatibility between TRIPS and the CBD

Livemint’s Unnikrishnan reported recently that there has been a move in the Council of TRIPS to ensure compulsory disclosure, by patent applicants, of the origin of genetic materials used in their inventions. SpicyIP in one of its earlier posts had mentioned that the Indian Biological Diversity Act requires that any patenting of genetic material in India be done only with the prior authorization of the National Biological Diversity Authority. Livemint quotes SpicyIP’s Shamnad Basheer saying that it is not quite clear as to what extent the Indian Patent Office is following this decision. The TRIPS amendment in this regard is important since the United States of America has not yet signed the Convention on Bio-diversity and thus as a natural consequence the USA does not recognize India’s sovereignty over her biological resources.

As the Livemint report points out, by quoting SpicyIP’s Aysha Shaukat (quoting ourselves once again!) that there have been several cases of Western pirates ripping of India’s biological resources without sharing the benefits with the local communities. Aysha gave the example of Naga Jolokia Pepper which originates from a Naga tribal community. The pepper had important medicinal value. A foreign institute researched on it, isolated the important genetic material and then disappeared with no news of follow on benefits. Another example given by Aysha in the Livemint report is Jeevani, an energy drink developed from a green plant grown in the Agastyar hills of Kerala. “In this case, despite the granting of a patent for the product to the Tropical Botanical Garden and Research Institute at Thiruvananthapuram, there are loopholes in the system that allow circumvention and misappropriation of the traditional knowledge pertaining to this patent by others.” “The traditional knowledge of Jeevani belongs to a tribal community. New York-based Nutrisciences Innovations LLC holds a trademark for this product, which is commercially very successful in the US and Europe.”

So while the MPAA and Big Pharma are forever lamenting about the ripping off of their IP by Indians, even though they are making millions of dollars of profit, their compatriots are doing the same to our biological resources. Karma – what goes around, comes around.

The proposed TRIPS amendment however aims to put an end to this state of affairs. The amendment has been coming for quite sometime now. It was in the epochal Doha Declaration of 2001, which made development issues central to all WTO talks, that the issue of compatibility between the CBD and TRIPS was first brought about. In para 19 of the Declaration it was demanded that Article 27.3, the provision regarding patenting of plants, be reviewed.

The amendment was finally moved on the 23-24 of October, 2007. IP-Watch reports that “The total number of WTO members now co-sponsoring the amendment proposal would appear to be in the majority of the 151 WTO members, as there were 11 cosponsors before the 41-nation African Group signed on. But of the 50 countries in the LDC Group, 32 are in the WTO, 11 are in the accession process, and 7 have expressed interest in acceding, according to sources.” India and Brazil were central to introducing the amendment last year. The Proposal as reported by IP-Watch, in a different report, is “for a new five-paragraph Article 29bis to the WTO’s 1994 TRIPS agreement, aims at protecting biodiversity particularly found in developing countries by making it mandatory for patent applicants to reveal where they obtained the biological resources or traditional knowledge in question, and to ensure fair and equitable benefit-sharing of commercial uses, as well as legal requirements in the providing country for prior informed consent to access the resources.”

However it is expected that there will be severe opposition from countries like the USA who claim that the CBD and TRIPS are already compatible with each other!!! The EU is in favour of the amendment but disagrees on the sanctions for non-disclosure i.e. while the amendment calls for revocation of the patent for that invention, the EU is in favour of lesser sanctions.