UNCTAD Handbook: IP And The CBD Protocol On Genetic Resources

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The Nagoya Protocol, adopted under the Convention on Biological Diversity, provides a set of rules to prevent misappropriation of genetic resources. As such, it crosses paths with the international intellectual property system. This interface is the subject of a handbook to be published by the United Nations Conference on Trade and Development.

UNCTAD organised an Ad Hoc Expert Group Meeting on the Development Dimensions of Intellectual Property: Biological Diversity and Access and Benefit Sharing (ABS) on 16-17 April to receive feedback to the draft handbook by experts in the field. The handbook is expected to be published later this year.

The Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the Convention on Biological Diversity was adopted in October 2010. Currently, 92 countries have signed the protocol and 16 countries have ratified it. The protocol will enter into force after the 50th ratification.

The draft handbook looks at the intellectual property implications of the Nagoya Protocol and how it plays with intellectual property rules as managed by international organisations, such as the World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights, the World Intellectual Property Organization, the Food and Agriculture Organization, and the World Health Organization.

The handbook is authored by: Kiyoshi Adachi, chief of the Intellectual Property Unit, Division on Investment and Enterprise at UNCTAD; Hartmut Meyer, biologist and consultant; Xavier Seuba, senior lecturer in international public law and international economic law at the Universitat Pompeu Fabra in Barcelona, Spain; and David Vivas-Eugui, consultant and former senior economic officer at UNCTAD.

The draft handbook addresses the sources of international law, disclosure of origin, the patentability of life forms, limitations and exceptions to IP laws, positive protection of traditional knowledge, costs and benefits of geographical indications, and private contract law.

Meyer, who authored chapter 4 on the positive protection of traditional knowledge, said one of the questions was the economic potential of traditional knowledge and what kind of IP rights are actually needed, adding that the question could not just focus on pharmaceuticals.

Another question is “how to balance customary rights of indigenous peoples and local communities with modern rights of scientific and industrial inventors,” he said, adding that the scientific sectors in developing countries are seeking IP rights protection too.

Vivas-Eugui, who authored chapter 5 of the draft handbook, said geographical indications (GIs, which refer to goods that have a specific geographical origin from which they derive certain qualities, reputation or characteristics) could contribute to conservation goals, but only if sustainable practices are actually incorporated into the technical specifications. GIs do not directly address misappropriation concerns, he said, although the existence of GIs on a biological resource and the traditional knowledge contained in the technical standards may be useful to defeat claims of novelty in certain patent applications.

Invited to comment on the draft handbook, Jayashree Watal, counsellor at the Intellectual Property Division of the World Trade Organization, talked about the relationship between TRIPS and the CBD. She said the draft handbook should mention two tracks of this relationship.

The first track, which she said is already mentioned in the handbook, is paragraph 19 of the WTO Doha Ministerial Declaration “which is how the mandate clearly came into the TRIPS Council,” she said. Then there is paragraph 12 (work programme), she added, which was about implementation-related issues and concerns. “TRIPS was also part of this,” she said, and “the only two outstanding implementation issues that remain, which are not part of the negotiating basket of the Doha Round, are TRIPS issues.”

One is a link to the extension of higher level geographical indications to goods other than wines and spirits, and the other one is the relationship between TRIPS and CBD. The language of Article 12(b) was found to be ambiguous, stating: “the other outstanding implementation issues shall be addressed as a matter of priority by the relevant WTO bodies, which shall report to the Trade Negotiations Committee, established under paragraph 46 below, by the end of 2002 for appropriate action.” So the issue went to the director general, who is chairman of the Trade Negotiations Committee (TNC).

Given that some member states considered this to be a negotiating issue under paragraph 12 and others considered the issue as clearly not part of the TNC negotiations, the director general decided to look at these issues as DG and to undertake consultations. The current WTO director general, Pascal Lamy, “took it upon himself” to handle these consultations in 2009. Since 2011, the discussions have been “frozen” but at some point, she said, it is going to come back.

Massimo Vittori, managing director of the Organization for an International Geographical Indications Network (OriGIn), said practical examples would be an interesting addition to chapter 5 of the draft handbook. The rationale for GIs is not the preservation of biodiversity, he said, but might offer certain solutions to address these problems.

Beatriz Gomez, associate programme officer in the Nagoya Protocol Unit, CBD secretariat, said the 12th Conference of the Parties to the CBD in Korea next year is the target for convening the first meeting of the parties to the Nagoya Protocol.

The WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) met from 22-26 April to discuss a draft text on the protection of traditional knowledge (IPW, WIPO, 22 April 2013).

 

Catherine Saez may be reached at info@ip-watch.ch.

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