ICTSD Outputs and Activities on Biotechnology, Trade and Sustainble Development

Biotechnology: Addressing Key Trade and Sustainability Issues

B.4 Intellectual property rights

Q27 How does intellectual property protection for biotech products impact biodiversity conservation?

A recent study by a UK research institute on the relationship between intellectual property and food security identified several concerns regarding the impact of the former on biodiversity conservation, including by: encouraging a system of agriculture based on a limited variety of crops; promoting the use of a relatively small pool of genetic material; and supporting the combined commercialisation of GM seeds and the pesticides and herbicides for which they have built-in resistance (QMIPRI, 2004). The study concludes that biotechnology patents and other intellectual property protection cannot be identified as the sole factor driving these trends, but that they may be contributing to differing degrees. Similar conclusions have been reached by other studies (Kothari and Anuradha, 1997). These concerns are also relevant in the context of food security, which will be analysed in Q28. The impact of biotechnology patents on research, for instance, plays a role in this context. By promoting the development of commonly utilised crops that can be cultivated as widely as possible, patent-led research may result in a limited range of GM products with the capacity of adapting to particular environmental conditions, rather than those tailored to particular conditions in precise areas. Ultimately, this would lead to decreased agricultural biodiversity. On the other hand, the QMIPRI study highlights that monocultural agricultural systems are not inherently biodiversity-erosive: if a monocultural system produces higher yields per harvest, pressure to open up biologically-diverse ecosystems to cultivation may be reduced as a consequence.

The most debated question regarding the linkages between patents and the conservation of biodiversity, however, is whether the patent system is indeed "supportive" and does not "run counter" to the objectives and principles of the CBD. The CBD, which came into force in 1993, recognised from early on the relevance of intellectual property to its objectives, in particular the "multifaceted and complex" correlation with the TRIPS Agreement, stressing the need to exchange information and increase synergies.

In the WTO, on the other hand, the Doha Ministerial Conference mandated countries to examine the relationship between the TRIPS Agreement and the CBD in the context of the review of Article 27.3(b), analysed above. Many developing countries, particularly those rich in biodiversity, had previously raised the issue, considering that the TRIPS Agreement, by allowing patents over life forms, inherently contradicts the national sovereignty over the genetic resources in their territory that is recognised by the CBD. Developed countries, including the US, the EU and Japan, have generally taken the position that there is no inherent conflict, and that both agreements can be implemented in a supportive manner. Current discussions, however, have focused on the concern that the TRIPS Agreement allows the granting of patents for inventions that use genetic material and associated knowledge without requiring compliance with the provisions of the CBD, primarily prior informed consent (PIC) and fair and equitable benefit sharing, and thus result in misappropriation of these resources. Cases of misappropriation that have been highlighted include the Neem tree, Basmati rice lines, the Ayahuasca vine, the Hoodia cactus and the Enola bean, among others.

are taking place on the basis of a proposal by Brazil, Bolivia, Cuba, Ecuador, India, Pakistan, Peru, Thailand and Venezuela, which attempted to facilitate a more result-oriented discussion by putting forth a checklist of elements that need to be addressed, including the disclosure of source and country of origin of biological resources and traditional knowledge in patent applications, as well as of evidence of PIC and benefit sharing under relevant national regimes. These disclosure requirements would arguably ensure the objectives and principles of the CBD are supported by the international intellectual property system, and would significantly enhance patent examination and quality by assisting in the establishment of prior art, thus avoiding the granting of patents over claims that lack novelty or inventive step. In addition, they would ensure the effectiveness of disclosure requirements established at the national level by a number of developing countries when the misappropriation occurs in countries outside their territory. Nevertheless, other countries, most vocally the US, Switzerland and the EU, reject the need for an amendment to the TRIPS Agreement. While the EU and Switzerland, for example, recognise the usefulness of disclosure requirements in patent applications, they favour addressing these issues outside of the WTO and maintaining any consequence of non-compliance outside of the patent system. The US has also expressed concern about adding uncertainty to the patent system and believes that other approaches, such as contracts and databases, would provide more effective alternatives.

In the World Intellectual Property Organization (WIPO), an Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) was created in 2000 to discuss this relationship and advance internationally acceptable and equitable solutions for the challenges it raises. The issues have also been discussed in the WIPO Standing Committee on the Law of Patents (SCP) in the context of a potential treaty on substantive patent law, and in the Working Group for the Reform of the Patent Cooperation Treaty (PCT).