Environmental Engineering Reference
In-Depth Information
incorporation of the CBD spirit in the upcoming IPR instruments both through the
TRIPs and within the bilateral trade agreements. The FTAs among developing countries
may produce elaborate statement of intentions supplemented by an action plan. This is
being discussed at the CoPs. There is a need to bridge the knowledge gap between trade-
negotiating documents and statements at CoP by developing countries, which can be
achieved through advancing the interaction between trade and environment ministries
and civil society actors across developing countries.
Some trends in biodiversity-related international patents have caused concern among
developing countries, for instance the broad patents being granted in the USA and other
developed countries, covering genetic material in their natural state, especially in the
context of microorganisms and also in terms of blocking further research and applica-
tion of the related knowledge which forms part of prior art. The granting of such erro-
neous patents on inventions is based directly or indirectly on genetic resources or
traditional knowledge that does not qualify as being novel or inventive. These may fore-
close R&D opportunities as patent rights over genetic resources may restrict research
by third parties and may also deplete the indigenous community's bene
fi
t from their
knowledge.
There is much to be done at the level of the developing countries as well; for instance
the aggressive position of developing countries on issues related to the ABS, PIC and IKS
needs to be adequately backed by necessary evidence. As discussed, initiatives have been
launched to collect details on biopiracy etc. through digital library and other instruments.
This process should be strengthened and consolidated further. Patent examiners world-
wide could also use such databases of genetic resources and traditional knowledge when
examining patent applications. Similarly, it is important that information on biodiversity
and the indigenous knowledge system is put together and digitized as a source for con-
sultation on prior art. This may help to ensure appropriate implementation of Article 8(j)
of the CBD. In this regard, options suggested such as post-grant opposition, re-
examination and revocation proceedings may not be very e
ective as the cost of moni-
toring may be extremely high for the developing countries.
ff
The Kani case has
demonstrated that a mere national-level bene
fi
t-sharing arrangement would not be
su
ts. It would need to be supplemented by international
arrangements (WTDR, 2007). The debate on the Kani experience assumes signi
cient for deriving actual bene
fi
cance as
the ABS has emerged as an important stumbling block at the TRIPs committee of WTO
and also at WIPO. The fact that NutriScience could get a trademark in the USA and could
market the drug at a price 11 times higher than what the Kani tribe was getting from the
local pharmacy is itself suggestive of such a need. That the seventh CoP of the CBD in
the decision VII/19 recommended an
ad hoc
open-ended working group for evolving such
a mechanism is an important step (CBD, 2004). One of the strong recommendations of
the CBD is to ensure technology transfer and capacity-building with the community facil-
itating access to genetic resources (WTO, 2000; 2005).
In the light of the wider debate on the access to technology for tracking down the
usage of or applications of biotechnology to biodiversity or genetic resources, it may be
worth exploring options for developing open sourcing mechanisms. This may help to
ensure that common property is not about genome scientists or access to biotechnology
in developing countries, but about
fi
fi
nally prioritizing a common ownership that is
speci
fi
c to genetic resources. This may also attribute the ownership of genome research
