Convention on Biological Diversity,
Traditional Knowledge and the TRIPS
Agreement
Yovana Reyes Tagle
University of Helsinki
CRITICISM OF THE PATENT SYSTEM
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Irregular patents granted
Legitimizing biopiracy?
Rights for the country of origin?
Benefits for the indigenous peoples?
Controversial patents
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Turmeric (“Use of Turmeric in Wound
Healing” )
Neem tree (fungicidal properties)
Enola bean (yellow bean)
“Apelawa” quinoa
“Ayahuasca” vine (“Da Vine”)
CBD and the patent system
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“The Contracting Parties, recognizing that
patents and other intellectual property rights
may have an influence on the implementation
of this Convention, shall cooperate in this
regard subject to national legislation and
international law in order to ensure that such
rights are supportive of and do not run counter
to its objectives.” Article 16.5 CBD
CBD and other international
agreements
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“The provisions of this Convention shall not
affect the rights and obligations of any
Contracting Party deriving from any existing
international agreement, except where the
exercise of those rights and obligations would
cause a serious damage or threat to biological
diversity.” Article 22.1 CBD
Traditional knowledge in the CBD
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Article 8 j) CBD
“Subject to its national legislation, respect, preserve
and maintain knowledge, innovations and practices of
indigenous and local communities embodying
traditional lifestyles relevant for the conservation and
sustainable use of biological diversity and promote
their wider application with the approval and
involvement of the holders of such knowledge,
innovations and practices and encourage the equitable
sharing of the benefits arising from the utilization of
such knowledge, innovations and practices.”
TRIPS
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Member States want “to reduce distortions and
impediments to international trade, and taking
into account the need to promote effective and
adequate protection of intellectual property
rights, and to ensure that measures and
procedures to enforce intellectual property
rights do not themselves become barriers to
legitimate trade” (Preamble of the TRIPS
Agreement)
TRIPS
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Article 27 TRIPS
1. “…patents shall be available for any inventions, whether
products or processes, in all fields of technology, provided that
they are new, involve an inventive step and are capable of
industrial application”
2. “Members may exclude from patentability inventions, the
prevention within their territory of the commercial exploitation
of which is necessary to protect ordre public or morality…”
3. “…Members shall provide for the protection of plant
varieties either by patents or by an effective sui generis system
or by any combination thereof.”
TRIPS and the public domain
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Article 70 (3) TRIPS
“There shall be no obligation to restore
protection to subject matter which on the date
of application of this Agreement for the
Member in question has fallen into the public
domain.”
Indigenous peoples view: TK is not in the
public domain
TRIPS and disclosure requirement
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Article 29 TRIPS
1. “Members shall require that an applicant for a
patent shall disclose the invention in a manner
sufficiently clear and complete for the invention to be
carried out by a person skilled in the art and may
require the applicant to indicate the best mode for
carrying out the invention known to the inventor at
the filing date or, where priority is claimed, at the
priority date of the application.”
2. “Members may require an applicant for a patent to
provide information concerning the applicant’s
corresponding foreign applications and grants.”
Defensive protection
Definitional aspects
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Source and country of origin of biological
resources
Country of origin of genetic resources
Source of genetic resources and TK
Supplier country (and country of origin) of
genetic resources
DISCLOSURE REQUIREMENT
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Debate:
TRIPS-CBD amendment
Evidence of PIC and benefit sharing
Formal or substantial requirement relating to
patentability
Optional or mandatory
Sanctions within or outside the patent system
DISCLOSURE REQUIREMENT
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Approaches:
Amendment of the TRIPS Agreement
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Article 27
New Article 29bis: “Disclosure of Origin of
Biological Resources and/or Associated
Traditional Knowledge”
Amendment of the PCT and PLT
Contractual approach
DISCLOSURE REQUIREMENT
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Approaches
Developing countries
European Union
Switzerland
Norway
US
Japan
DEFENSIVE PROTECTION ND
TK DATABASES
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TK and prior art
TK databases and prior art
 Public disclosure and documentation of TK
 an “effective and direct solution” and the “most efficient
approach” for the problem of erroneous patents?
WIPO
 WIPO “documentation toolkit”: guidelines of the IP
implications of the documentation of TK in all its stages
DEVELOPMENT AGENDA
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WIPO General Assembly approved the Development Agenda (2007)
 45 recommendations
 WIPO technical assistance shall be development-oriented
 Access to knowledge and technology for developing countries
 Promotion of the transfer and dissemination of technology, to the
benefit of developing countries
 To approach intellectual property enforcement in the context of broader
societal interests and especially development-oriented concerns
 Call for the IGC “to accelerate the process on the protection of genetic
resources, traditional knowledge and folklore, without prejudice to any
outcome, including the possible development of an international
instrument or instruments”
DEVELOPMENT AGENDA
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Committee on Development and Intellectual Property
 Implementation of the recommendations
Development Agenda Group
 “support for a development-oriented perspective on
intellectual property issues, and the mainstreaming of the
Development Agenda across all areas of WIPO’s work”
 The Development Agenda is seen a “shift in the
international perspective of intellectual property (IP): a
shift from viewing IP as an end in itself to viewing it as a
means to serve larger public goals of social, economic and
cultural development”
THANK YOU!
Yovana Reyes Tagle
(yovana.reyes@helsinki.fi)