Biology Reference
In-Depth Information
effort to make the TRIPS Agreement an instrument of international legislation on
property rights that does not disregard the issue of biopiracy and works in accord-
ance with the CBD provisions, ABS is seen as the missing link that would both
enhance the functioning of TRIPS and promote the values of the CBD.
A strong alliance among developing countries, including the Africa group
and the group of 17 Like-Minded Megadiverse Countries (which includes India,
China, Brazil, Bolivia, Colombia, Cuba, the Dominican Republic, Ecuador, Peru
and Thailand), has requested the introduction into the TRIPS Agreement of a man-
datory requirement to disclose the origin of biological resources and/or associated
traditional knowledge used in inventions for which intellectual property rights are
applied. In a case where the country of origin of biological resources is identified in
the patent application, applicants would have to provide information that includes
evidence of compliance with the applicable legal requirements in the providing
country for prior informed consent and for access and fair and equitable benefit-
sharing (WTO
2006b
). This amendment would incorporate into TRIPS the ABS
objectives as developed in the CBD, thereby making the two treaties compatible. In
the absence of proper consent or authorization for the use of resources, the country
of origin could claim law infringement and apply for the patent to be revoked.
The main opponent of incorporating ABS provisions into TRIPS is the United
States, followed by Japan and, to some extent, the European Union and Australia.
The US has argued against changing the status quo of patent approval in TRIPS,
asserting that the prerequisites for granting a patent (novelty, non-obviousness and
utility) represent the only lawful arrangement and any other addition would com-
plicate matters unnecessarily (RIS
2007
).
3
These opponents are not, however, against ABS rules per se. They argue that
the value of ABS is best governed by means other than intellectual property
laws, such as contracts, conservation laws and export controls, that responsibil-
ity for keeping track of the use of genetic resources lies with the countries that
provide them and not the patent offices of other countries, and that requiring addi-
tional disclosure would increase the costs of research because of the record keep-
ing required, thereby reducing research and increasing the cost of products. They
maintain that the purpose of TRIPS is to establish minimum levels of intellectual
property rights protection and not to specify contractual obligations regarding
access to genetic materials in other countries' territories.
The arguments against the incorporation of ABS in TRIPS are technically valid,
but proponents of such a move argue that perhaps this misses the point. In new
submissions, developing countries (e.g. WTO
2006a
,
2006c
,
2008
) are adamant
that ABS is a key issue in protecting intellectual property rights and that without
the amendment there is an apparent contradiction between TRIPS and the CBD. To
3
Patent revocation can only occur on the following grounds: that the invention for which patent
protection is sought is not new, lacks true innovation or is not capable of industrial application,
or that the application does not disclose the invention in a manner sufficiently clear and complete
for the invention to be carried out by a person skilled in the art.
