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mail-out 79: No control on life!



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Mail -out 79      				(August 2000)

European Coordination 'No control on life!'
Florianne Koechlin, Blueridge Institute,  http:// www.blauen-institut.ch

Dear friends

First two news re EU-Life-Patent-Directive:
The German Government announced on August 11 that it will not implement the
EU Life Patents Directive. Germany requests the limitation of the scope of
patent protection on human genes. (info: christoph.then@greenpeace.de).
Wolfgang Wodarg (Social democrat, Germany) and Jean-Francois Mattei
(Conservative, France), both members of the General Assembly of the Council
of Europe, launch an appeal to EU-president Romano Prodi to reject the
EU-Life-Patent-Directive. See http://www.wodarg.de

This mail-out is about the 'Protection of Biodiversity and Traditional
Knowledge', a summary of a very interesting paper India presented during
the July 5-6 meeting of the WTO's Committee on Trade and Environment (CTE).
This summary was prepared by Cecilia Oh (Third World Network) from an
article of SUNS (South-North Development Monitor, from Someshwar Singh).
Cecilia and Someshwar, thanks for this work!

The Indian paper was supported by many Southern countries, while the USA
was not sure " it accepted that there was a phenomenon that could be termed
'bio-piracy'."

 The WTO-TRIPS Agreement and biopiracy
The paper noted that: "There is also a view that the TRIPS Agreement is
aiding the exploitation of biodiversity by privatizing biodiversity
expressed in life forms and knowledge". TRIPS imposes minimum standards of
patent (IPR) protection, while WTO members are free to grant higher levels
of protection under their national laws. Although India may deny patents of
life forms (except on microorganisms and microbiological processes, as per
TRIPS provisions), the US can still grant patents on plants and other life
forms. Thus, biopiracy can still take place by the grant of patents in the
US over biological resources and knowledge taken from India.According to
the paper, Southern countries should therefore check patent applications to
ensure that they satisfied the criteria of patentability (i.e., novelty,
non-obviousness and usefulness). If this is not met, such patents should be
challenged and revoked, as have been the case with the patents on tumeric
and neem. There should also be a requirement for disclosure of the source
of biological material in the patent application.

However, patent revocation and domestic biodiversity legislation alone will
not resolve the problem of biopiracy. At the international level, there is
a need for legal and institutional means for recognizing the rights of
tribal communities over their traditional knowledge, and for mechanisms to
share benefits arising out of the commercial exploitation of biological
resources using such traditional knowledge. "This can be done by
harmonising the different approaches of the Convention on Biological
Diversity (CBD) on the one hand and the TRIPS Agreement (on patents) on the
other as the former recognizes sovereign rights of States over their
biological resources and the latter treats intellectual property as a
private right", the paper suggested. India therefore, proposed that under
the TRIPS Agreement, patent applications should be required to disclose the
source of origin of the biological material utilized in their invention and
should also be required to obtain prior informed consent of the country of
origin:

Protection of traditional knowledge, innovations and practices
Conventional forms of patents (IPRs) are inadequate to protect indigenous
knowledge because they are based on protection of individual property
rights, whereas traditional knowledge is collective. Such knowledge,
developed over a period of time and codified in texts or retained in oral
traditions over generations, may also not satisfy the conditions of novelty
and innovative step necessary for grant of a patent. In this context, the
paper examined 3 options for the protection of traditional knowledge: (i)
documentation of traditional knowledge; (ii) registration and innovation
patent system; and (iii) development of a sui generis system.

Documentation of traditional knowledge
If traditional knowledge is properly documented, it can be made available
to patent examiners the world over so that prior art in the case of
inventions based on such materials/knowledge is readily available to them.
Documentation may also identify the indigenous communities with whom
benefits have to be shared.

One clear benefit of documentation is that it would check patents based on
traditional knowledge in public domain that are today difficult to prevent
due to lack of availability of information with patent examiners. Some
initiatives taken to document traditional knowledge include the Community
Biodiversity Registers (CBRs) and the Traditional Knowledge Digital Library
(a computerized database of documented TK relating to use of medicinal and
other plants).

The paper however cautioned that mere documentation may not ensure benefit
sharing, unless it is backed by a mechanism for protecting the knowledge.
Documentation may only serve a defensive purpose. This necessitates
extending some kind of protection to traditional knowledge. In this
context, the paper considered the registration and innovation patent, and
sui generis systems.

Registration and innovation patent system for traditional knowledge
This involves creating a system for registration of innovations by
inventors. Such registration will be tantamount to giving right to the
inventor to challenge any use of the innovation without prior permission.
For novel and useful innovations, a kind of petty patent giving protection
for a limited duration may be worked out.

Sui generis system for protecting traditional knowledge
A sui generis system, separate from the existing IPR system, could be
designed to protect knowledge, innovations and practices associated with
biological resources. The paper noted that the parameters, elements and
modalities of a sui-generis system were still being worked out. Such a
system would be in addition to the sui generis system of protection for
plant varieties (as per the provisions of the TRIPS Agreement).

International action
The paper noted that: "While securing benefits to the creators and holders
of knowledge for the use of this knowledge is subject to national
legislation, national action alone is not sufficient to ensure realization
of benefits ... The onus must also be shared by the user of this knowledge
all over the world so as to ensure compliance of the consent requirement
for using the knowledge and equitable sharing of benefits as visualized in
the Convention on Biological Diversity." Therefore, national action, and a
basic understanding and respect for an internationally recognised regime to
ensure rights to these communities have to go hand in hand. In this
context, India has suggested in international fora, in the CBD and the WTO,
that applications for patents should disclose the following:
- the source of knowledge and biological material;
- an undertaking that the prevalent laws and practices of the country of
origin have been fully respected.

Observer status
At the CTE meeting, the CBD reiterated its request for observer status in
the TRIPs Council. The US had blocked the CBD from being granted an ad hoc
observer status at the TRIPS Council at its last meeting.
(Source: SUNS 4712, Someshwar Singh, 20 July 2000, http://www.twnside.org.sg/