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Biopiracy, the CBD and TRIPS - The Prevention of Biopiracy

Ragnar, Johan (2004)
Department of Law
Abstract
Biopiracy is defined as the commercial development of naturally occurring biological materials, such as plant substances or genetic cell lines, by a technologically advanced country or organisation without fair compensation to the peoples or nations in whose territory the materials were originally discovered. The problem is growing but as of today, there is no common view on how this problem should be regulated. Two conventions that are related to the subject are the Convention on Biological Diversity (the CBD) and the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). Some advocates that there is a conflict between these two conventions, some that there is no conflict, often with the argument that they do not deal... (More)
Biopiracy is defined as the commercial development of naturally occurring biological materials, such as plant substances or genetic cell lines, by a technologically advanced country or organisation without fair compensation to the peoples or nations in whose territory the materials were originally discovered. The problem is growing but as of today, there is no common view on how this problem should be regulated. Two conventions that are related to the subject are the Convention on Biological Diversity (the CBD) and the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). Some advocates that there is a conflict between these two conventions, some that there is no conflict, often with the argument that they do not deal with the same subject matter. The paper has three purposes. It presents the subject of biopiracy in a more general view but also finds out if there is a conflict or not between the two conventions mentioned above and tries to find a solution to this problem. The main focus is on medicinal products. The third purpose is to make some practical and legal proposals in order to reduce the cases of biopiracy, which are summarized in Supplement A. The two conventions are presented both from a general view and a specific view with focus on the respective articles being related to biopiracy. The paper further penetrates the eventual conflict between the two conventions, especially the legal versus the policy conflict. It is found that it depends on how you look at the conventions, if there is a conflict or not. Other legal perspectives are being presented, such as professional self-regulation and national regulations. The US Patent Regulation is treated separately within this section. The case history shows actual examples of biopiracy. Biopiracy does exist and it might help to challenge an approved patent application. In order to get a broader approach to the subject, views from some significant relevant organisations are being presented. The summary shows that those being dependent of intellectual property rights, such as large pharmacy corporations and scientists, are advocating that there is no conflict between the conventions and the ''victims'' of biopiracy are advocating that there is a conflict and that the protection is weak. The conclusion is that there might be a conflict between the two conventions - the legal situation today is uncertain. Whatever the case may be, there is a need for biopiracy to be regulated since it is in fact taking place and the indigenous peoples are not being protected enough. The two conventions deal with different issues. The CBD deals with the protection of biological diversity, sustainable use of its components and the fair and equitable sharing of the benefits arising out of the utilisation of genetic resources, and TRIPS deals with the protection of intellectual property but in some areas the two interrelate. A conceptual distinction between legal issues and policies must be drawn. It is concluded that the US Patent Law is a big source of the biopiracy cases. The fact that the US Patent Law does not recognise use of an invention as prior art makes it possible for American inventors to patent such inventions that have only been used (and not patented or described in a publication). The USA needs to revise their Patent Law in order to prevent biopiracy. Another alternative is to add a rule to TRIPS (which the USA is a member of) that states that a patent application can not be approved if the invention is known, used or described in a trade publication in any of the member states of TRIPS. It might also be appropriate to insert a rule in either the US Patent Law or TRIPS that forces the patent applicant to define the source country or area of the invention when applying for the patent. The final conclusion is therefore that TRIPS and the CBD can and should be implemented in a mutually supportive way. They should not undermine each other's objectives. It is also concluded that the USA needs to revise their Patent Law in order to recognise all inventions - documented or not - in countries other than the USA as prior art. An alternative is to add such a rule to TRIPS, which the USA are a member of. It is further stressed that the explorers of nature should have a great amount of respect when exploring nature. Respect can be shown in different ways. One way is to give fair and equitable sharing in accordance with the objectives of the CBD&semic another is to get prior informed consent from the indigenous peoples. The indigenous peoples can also secure their knowledge in a number of ways: they can document their traditional knowledge, create databases, develop a sui generis system and create alliances. (Less)
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author
Ragnar, Johan
supervisor
organization
year
type
H3 - Professional qualifications (4 Years - )
subject
keywords
Immaterialrätt, Medicinsk rätt
language
English
id
1561387
date added to LUP
2010-03-08 15:55:28
date last changed
2010-03-08 15:55:28
@misc{1561387,
  abstract     = {Biopiracy is defined as the commercial development of naturally occurring biological materials, such as plant substances or genetic cell lines, by a technologically advanced country or organisation without fair compensation to the peoples or nations in whose territory the materials were originally discovered. The problem is growing but as of today, there is no common view on how this problem should be regulated. Two conventions that are related to the subject are the Convention on Biological Diversity (the CBD) and the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). Some advocates that there is a conflict between these two conventions, some that there is no conflict, often with the argument that they do not deal with the same subject matter. The paper has three purposes. It presents the subject of biopiracy in a more general view but also finds out if there is a conflict or not between the two conventions mentioned above and tries to find a solution to this problem. The main focus is on medicinal products. The third purpose is to make some practical and legal proposals in order to reduce the cases of biopiracy, which are summarized in Supplement A. The two conventions are presented both from a general view and a specific view with focus on the respective articles being related to biopiracy. The paper further penetrates the eventual conflict between the two conventions, especially the legal versus the policy conflict. It is found that it depends on how you look at the conventions, if there is a conflict or not. Other legal perspectives are being presented, such as professional self-regulation and national regulations. The US Patent Regulation is treated separately within this section. The case history shows actual examples of biopiracy. Biopiracy does exist and it might help to challenge an approved patent application. In order to get a broader approach to the subject, views from some significant relevant organisations are being presented. The summary shows that those being dependent of intellectual property rights, such as large pharmacy corporations and scientists, are advocating that there is no conflict between the conventions and the ''victims'' of biopiracy are advocating that there is a conflict and that the protection is weak. The conclusion is that there might be a conflict between the two conventions - the legal situation today is uncertain. Whatever the case may be, there is a need for biopiracy to be regulated since it is in fact taking place and the indigenous peoples are not being protected enough. The two conventions deal with different issues. The CBD deals with the protection of biological diversity, sustainable use of its components and the fair and equitable sharing of the benefits arising out of the utilisation of genetic resources, and TRIPS deals with the protection of intellectual property but in some areas the two interrelate. A conceptual distinction between legal issues and policies must be drawn. It is concluded that the US Patent Law is a big source of the biopiracy cases. The fact that the US Patent Law does not recognise use of an invention as prior art makes it possible for American inventors to patent such inventions that have only been used (and not patented or described in a publication). The USA needs to revise their Patent Law in order to prevent biopiracy. Another alternative is to add a rule to TRIPS (which the USA is a member of) that states that a patent application can not be approved if the invention is known, used or described in a trade publication in any of the member states of TRIPS. It might also be appropriate to insert a rule in either the US Patent Law or TRIPS that forces the patent applicant to define the source country or area of the invention when applying for the patent. The final conclusion is therefore that TRIPS and the CBD can and should be implemented in a mutually supportive way. They should not undermine each other's objectives. It is also concluded that the USA needs to revise their Patent Law in order to recognise all inventions - documented or not - in countries other than the USA as prior art. An alternative is to add such a rule to TRIPS, which the USA are a member of. It is further stressed that the explorers of nature should have a great amount of respect when exploring nature. Respect can be shown in different ways. One way is to give fair and equitable sharing in accordance with the objectives of the CBD&semic another is to get prior informed consent from the indigenous peoples. The indigenous peoples can also secure their knowledge in a number of ways: they can document their traditional knowledge, create databases, develop a sui generis system and create alliances.},
  author       = {Ragnar, Johan},
  keyword      = {Immaterialrätt,Medicinsk rätt},
  language     = {eng},
  note         = {Student Paper},
  title        = {Biopiracy, the CBD and TRIPS - The Prevention of Biopiracy},
  year         = {2004},
}