INTELLECTUAL PROPERTY RIGHTS & BIODIVERSITY

“Intellectual Property refers to all categories of Intellectual property that are subject of section 1 through 7 of Part-II of TRIPS Agreement”.

1.       Copyright and neighboring rights

2.       Trademarks

3.       Geographical Indications

4.       Industrial Designs

5.       Patents
6.       Layout designs of integrated circuits

7.       Undisclosed Information

GENETIC RESOURCES

CBD main principles

¨ Member states have a sovereign right to exploit their own resources pursuant to their own environmental policies;

¨ Access to genetic resources shall  be subject to prior informed consent of the providing party: and

¨ Benefits arising from the commercial and other utilization of genetic resources should be shared in a fair an equitable way.

¨ Access and sharing-mutually agreed terms i.e., contractual arrangements.

IP ISSUES

(Based on discussion on International flora- CBD,FAO,WIPO-IGC etc.)

¨ Contractual arrangements will face IP problems in respect of ensuring control over EX-SITU use of genetic resource, technology transfer and joint R&D, Possible IP clauses in agreement: Focuses on ownership, license sharing royalties.

¨ IP role shall be considered in formulating the legislation on access to benefit sharing, in contact of prior informed consent procedures, recording of ownership interest etc.,

¨ In relation to biotechnological inventions-indication of origin source of the genetic resource in certain documents (patent application) for verifying informed consent

IP clauses in contractual arrangements regarding transfer of genetic material is important and useful

The clauses may include:

¨ Sharing of IP rights – providing that provider of genetic materials are entitled to the ownership of IPR on inventions that is the outcome.

¨ Sharing royalties-

¨ Grant-back licenses-providers are ensured the right to sue any patented inventions derived form the use of transferred genetic resource.

WIPO-IGC Working on

¨ Prior informed consent

¨ Patentability of Biotechnology inventions

¨ Benefit sharing

¨ Guiding contractual practices

¨ Management of genetic resources

Possible Methods of protection of Genetic Resources and Traditional Knowledge

TRADITIONAL KNOWLEDGE:

“Body of knowledge innovations and practices of indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of  biological diversity”

Under frame work of CBD:

“Body of knowledge built by a group of people through generations living in close contact with nature”

Under WIPO:

“Tradition based literary artistic or scientific works: inventions: scientific discoveries: designs; marks, names and symbols, undisclosed information etc.,”.

PROTECTION THROUGH PATENTING

For patenting,

Novelty

Utility &

Non-obviousness Tests need to be satisfied

Genetic Resources and Traditional Knowledge may not satisfy these tests.

NOVELTY

¨ GR/TK are discoveries of natural phenomenon. (Duplication of a natural compound not patentable-process for producing it is patentable)

¨ Exception-previously unknown in its purified and isolated form,- ‘demonstrate unexpected properties’- compound slightly altered from its chemical structure in nature is patentable.

UTILITY

¨ Trivial, illegal or immoral (for committing crime or fraud) comes under non-utility.

¨ Biotechnology-morality requirement has set in

¨ Biotech product having religious or moral significance to indigenous people not to be granted patent

¨ TRIPS-rejects patent claim on grounds of violating PUBLIC POLICY OR MORALITY.

NON-OBVIOUSNESS

¨ Unprocessed uses of medicinal plants would be obvious

¨ Process patents in GR have difficulty in satisfying non-obviousness