Convention on Biological Diversity, Traditional Knowledge and the TRIPS Agreement

1. Convention on Biological Diversity, Traditional Knowledge and the TRIPS Agreement Yovana Reyes Tagle University of Helsinki

2. CRITICISM OF THE PATENT SYSTEM • Irregular patents granted • Legitimizing biopiracy? • Rights for the country of origin? • Benefits for the indigenous peoples?

3. Controversial patents • Turmeric (“Use of Turmeric in Wound Healing” ) • Neem tree (fungicidal properties) • Enola bean (yellow bean) • “Apelawa” quinoa • “Ayahuasca” vine (“Da Vine”)

4. CBD and the patent system • “The Contracting Parties, recognizing that patents and other intellectual property rights may have an influence on the implementation of this Convention, shall cooperate in this regard subject to national legislation and international law in order to ensure that such rights are supportive of and do not run counter to its objectives.” Article 16.5 CBD

5. CBD and other international agreements • “The provisions of this Convention shall not affect the rights and obligations of any Contracting Party deriving from any existing international agreement, except where the exercise of those rights and obligations would cause a serious damage or threat to biological diversity.” Article 22.1 CBD

6. Traditional knowledge in the CBD • Article 8 j) CBD • “Subject to its national legislation, respect, preserve and maintain knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity and promote their wider application with the approval and involvement of the holders of such knowledge, innovations and practices and encourage the equitable sharing of the benefits arising from the utilization of such knowledge, innovations and practices.”

7. TRIPS • 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)

8. TRIPS • Article 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. “…Members shall provide for the protection of plant varieties either by patents or by an effective sui generis system or by any combination thereof.”

9. TRIPS and the public domain • Article 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

10. TRIPS and disclosure requirement • Article 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.”

11. Defensive protectionDefinitional aspects • Source and country of origin of biological resources • Country of origin of genetic resources • Source of genetic resources and TK • Supplier country (and country of origin) of genetic resources

12. DISCLOSURE REQUIREMENT • Debate: • TRIPS-CBD amendment • Evidence of PIC and benefit sharing • Formal or substantial requirement relating to patentability • Optional or mandatory • Sanctions within or outside the patent system

13. DISCLOSURE REQUIREMENT • Approaches: • Amendment of the TRIPS Agreement • Article 27 • New Article 29bis: “Disclosure of Origin of Biological Resources and/or Associated Traditional Knowledge” • Amendment of the PCT and PLT • Contractual approach

14. DISCLOSURE REQUIREMENT • Approaches • Developing countries • European Union • Switzerland • Norway • US • Japan

15. DEFENSIVE PROTECTION ND TK 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

16. DEVELOPMENT AGENDA • WIPO General Assembly approved the Development Agenda (2007) • 45 recommendations • WIPO technical assistance shall be development-oriented • Access to knowledge and technology for developing countries • Promotion of the transfer and dissemination of technology, to the benefit of developing countries • To approach intellectual property enforcement in the context of broader societal interests and especially development-oriented concerns • Call for the IGC “to accelerate the process on the protection of genetic resources, traditional knowledge and folklore, without prejudice to any outcome, including the possible development of an international instrument or instruments”

17. DEVELOPMENT AGENDA • Committee on Development and Intellectual Property • Implementation of the recommendations • Development Agenda Group • “support for a development-oriented perspective on intellectual property issues, and the mainstreaming of the Development Agenda across all areas of WIPO’s work” • The Development Agenda is seen a “shift in the international perspective of intellectual property (IP): 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 cultural development”

18. THANK YOU! Yovana Reyes Tagle (yovana.reyes@helsinki.fi)