Biodiversity: No Patents Without Local Consent - Delegates

2006-04-03 Global Information Network
By Haider Rizvi CURITIBA, Brazil, Mar. 31, 2006 (IPS/GIN) -- Delegates from developing countries attending an international conference on biodiversity here are demanding changes in the World Trade Organization (WTO) rules on patenting of genetic resources, such as seeds, plants and animals. Their demand emanates from fears that existing laws on intellectual property can infringe the rights of indigenous communities and their traditional knowledge about various species of plants and animals. The 1992 U.N. Convention on Biological Diversity (CBD) clearly requires "fair and equitable benefit sharing" of biological resources. All parties have agreed that the convention must be implemented by 2010, but not on the question of how to implement it. Large developing countries like India, Brazil, Pakistan and many others have proposed that companies interested in having access to genetic material must disclose their country of origin and seek the informed consent of local people before obtaining patent rights. "This is a minimum standard," said Henrique Choer Moraes, an official at the Brazilian Ministry of Foreign Affairs, at a meeting of experts. "We are not denying the contracts (to the companies). We just want compliance." But the United States, which is home to a large number of biotech and pharmaceutical companies, is dismissive of the proposal to create international rules tying patent rights to the prior consent of indigenous communities, and the condition that the origin of the product's source must be made public. "The U.S. is very interested in flexibility," Douglas Neumann, a U.S. State Department official who deals with biological and environmental affairs, told delegates at a gathering organized by the WTO Council for Trade Related Aspects of Intellectual Property Rights, also known as TRIPS. In Neumann's view, the disclosure condition would cause uncertainty for the product developer and "would discourage innovation." He said the patent system "has helped people around the world to have better lives."
But proponents of the proposal do not embrace this argument. "Are we going to kill innovation? We are not going to blow up the patent system. Our proposal positively protects the traditional knowledge," Moraes said, adding that the "burden of proof" lies with the patent seekers. The U.S does not object to national laws, but rejects an international legal mechanism, because, as Neumann suggested, it could affect negotiations on contracts. The U.S. also seeks clarification of the definition of "traditional knowledge." How this clash between intellectual property rights and social and environmental protections will play out is a question that has to be settled by the 149 members of the WTO and the parties to the Convention on Biological Diversity, according to observers.. Brazil, which has taken the lead in complying with the implementation requirements of the convention, argues that the intellectual property laws and the convention have to be "mutually compatible." Though discussed in previous meetings as well, the issue was formally taken up by the WTO Commission on Trade and Environment back in 1995. It gained momentum during the 1999 meeting in Seattle, where huge protests broke out against the WTO policies. Last year at a WTO meeting in Hong Kong, developing countries once again raised this issue. They argued that the TRIPS rules must be amended to oblige all WTO members to make life forms and parts non-patentable. The TRIPS agreement allows for the patenting or other intellectual property protection of genetic material without ensuring compliance with the provisions of the CBD, including those relating to "prior informed consent" and benefit sharing. Developing countries say if this is not possible, at least patents for products based on traditional or indigenous knowledge must be excluded. They argue that Article 16 of the CBD acknowledges a conflict between the objectives of protecting intellectual property and conservation of biodiversity, stating that, "the contracting parties' patents and other intellectual property rights may have an influence on the implementation of this convention, [and] shall cooperate in this regard subject to national legislation and international law in order to ensure that such rights are supportive and do not run counter to its objectives."
Countries are also divided on the question of whether the appropriate forum to discuss this issue is the WTO or the World Intellectual Property Organization (WIPO). At the moment, the WTO seems poised to intensify consultations. Its Doha round of trade talks is scheduled to end this year, but it is not clear whether the issue of traditional knowledge would be part of it. "Right now, we are not discussing the traditional knowledge," a WTO official told delegates at a meeting.