Environmental Engineering Reference
In-Depth Information
In light of this proposal, the burden of proof has shifted on to the patent applicant, who
may be intending to use biological resources and/or traditional knowledge. In its proposal
(IP/C/M/47) Brazil has suggested that if there is no national regime to provide such per-
mission, then consent from a competent national authority in that area should be pro-
cured. In this context, the legal e
ects of non-disclosure or inadequate or wrongful
disclosure leading to revoking of patents, apart from the possibility of a judicial review,
are some of the issues as yet unsettled.
ff
Viability of ABS models
A framework for access to genetic resources and bene
t-sharing from such access has been
one of the most important achievements of the CBD. Article 8(j) makes states responsi-
ble to ensure that equitable sharing of bene
fi
ts, arising from the utilization of knowledge,
innovations and practices of indigenous and local communities embody traditional
lifestyles relevant for conservation and sustainable use of biological diversity. The CoP-4
of the CBD, by their decision IV/8, decided to establish a panel of experts appointed by
the member governments, composed of representatives from the private and public
sectors, as well as representatives of indigenous and local communities. The panel, at its
fi
fi
rst meeting in 1999, reached broad conclusions on prior informed consent, mutually
agreed terms, information needs and capacity-building.
However, until the CoP-8 at Curitiba, Brazil, in 2006, the Group could only agree on
establishing a group of technical experts to develop internationally recognized certi
cate
of origin/source/legal provenance and analyse its practicality, feasibility, costs and
bene
fi
ts, with a view to achieve the objectives of Article 15 and 8(j) of the CBD. At the
same meeting it was also decided by the CoP that the Bonn Guidelines would be adopted
for use while member governments develop and draft their legislative, administrative or
policy measures on ABS.
In this context the Indian experience of sharing the bene
fi
ts from a drug developed from
the plant Arogyapacha, known to the Kani tribe in Southern India, has assumed major
signi
fi
cance as a model for ABS. 17 The drug is 'Jeevani', and was developed by the Tropical
Botanic Garden Research Institute (TBGRI). Jeevani is useful as an anti-stress and anti-
fatigue agent. While the TBGRI was sharing the royalty with the tribal community, one
company in the USA acquired the Jeevani trademark and started marketing it under its
own banner. This adversely a
fi
ected the earnings of the trust, established on the initiative
of TBGRI for the welfare of the tribal community. This shows how important it is to have
an international IPR regime that fully recognizes the IKS. The TBGRI model of ABS has
otherwise worked well and has entered Phase II of its operations. Through the earnings
of the trust, Kanis have acquired a small community centre, a school and a vehicle to take
their forest produce to the nearby market. 18
ff
orts were made to
ensure fair and ethical implementation of the PIC regime in the contract through detailed
participation of the tribal community.
In Phase II elaborate e
ff
Conclusion
The debate on incorporation of prior informed consent and ABS in the formal IPR
instruments has expanded in the last few years. In light of ongoing resistance to the key
demands of PIC and ABS, it is important to evolve a strategic response covering inter-
national mechanisms and national policy initiatives. As is clear, it is necessary to ensure
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