Trade Policy Note Final-rev08 - Development

esearch and breeding (the prevalent practice in developing countries). 90 They should
incorporate the concept of Farmers Rights as embodied in the International Treaty on
Plant Genetic Resources, and draw on the experiences of those developing countries
which have drawn up legislation on these matters.
Another concern is the possible conflict between the TRIPS Agreement and the
Convention on Biodiversity (CPD), which stresses the sovereignty of States over their
genetic resources, and respect for the innovations, knowledge and practices of
indigenous and local communities. The focus has been on the need to prevent biopiracy,
defined by the CPD as “unauthorized access to use of biological resources or
traditional knowledge of the indigenous peoples by third parties without
compensation and without necessary authorization”. In addition, patents derived from
such genetic material may not involve significant innovation or novelty. National laws
should be drawn up to prevent bio-piracy containing obligations such as declaring the
country of origin, and demonstrating its prior consent, or of a particular indigenous
community if applicable, and to compensate such communities for the development
of new varieties, based on material that they have supplied. 91 Such laws should also
raise the threshold of plant variety protection so that protection is limited to
significant innovations or inventive steps deemed socially beneficial. 92 Many
documented cases of bio -piracy have been submitted by developing countries in
support of their proposal 93 aiming at the inclusion in the TRIPS Agreement of an
obligation to require the disclosure of the origin of genetic resources and/or associated
traditional knowledge, 94 which they consider necessary for the effective application of
such laws.
GIs and Traditional Knowledge
Developing countries are using a variety of legal mechanisms to protect traditional
knowledge. Geographical indications (GIs) may provide one effective means to this
end. 95 Unlike patents and trade marks GIs are community owned, cannot be sold and
do not expire. They empower indigenous communities by providing recognition and
90 For detailed suggestions as to how IPR legislation can make use of the flexibilities in the TRIPs
Agreement in pursuit of the MDGs and development friendly outcomes see Correa, Carlos M.,
Intellectual Property Rights, the WTO and Developing Countries: The TRIPS Agreement and Policy
Options (Zed books: London/New York, 2000) (www.zedbooks.co.uk).
91 See Carlos Correa, “Reviewing the TRIPS Agreement ” in A Positive Agenda for Future Trade
Negotiations, op.cit..
92 See recommendation by the Commission on Intellectual Property Rights, “Integrating Intellectual
Property Rights and Development Policy ” (London: 2002)
(www.iprcommission.org/graphic/documents/final_report.htm ).
93 See submission from Brazil, Cuba, Ecuador, India, Peru, Thailand and Venezuela IP/C/W/420 on
www.wto.org.
94 For example, the case of camu-camu recently submitted by Peru in WTO document IP/C/W458
describes in detail how a traditional product native to Peru’s Amazon region had served as a basis for
patents in developing countries without the knowledge or consent of Peru (www.wto.org).
95 The TRIPS Agreement (Article 22:1) defines GIs as “indications which identify a good as
originating in the territory of a member , or a region or locality in that territory, where a given quality
,reputation or other characteristic of the good is essentially attributable to its geographical origin”.
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