BIOPIRACY Imitations Not Innovations - Biopirateria

Biopiracy: Imitations Not Innovations 17
International Treaty on Plant Genetic Resources for Food and Agriculture. The
objectives of the treaty are the conservation and sustainable use of plant genetic
resources for food and agriculture, and the fair and equitable sharing of the
benefits arising out of their use, in harmony with the CBD, for sustainable
agriculture and food security. Though this treaty deals specially with the
indigenous knowledge related to food and agriculture, it reflects the importance
and recognition accorded to IK per se.
Despite the fact that efforts are being made in various international fora for
the protection and recognition of IK, corresponding efforts are not being reflected
in intellectual property regimes of the user nations. In the near absence of
national legislation on bio-prospecting, the commercialization of biotech products
and processes, based on genetic resources obtained from developing countries,
continues to be based on free market principles of demand and supply.
By definition, patents cannot be granted for substances that exist in nature
as these do not fulfil the criterion of novelty or inventive step. However, the
procedures followed in determining the novelty of patentable inventions differ
even among industrialized countries. Developing countries rightly believe that
patent systems that do not provide searching for the written and oral prior art
for worldwide novelty (such as is the case in US) and that do not insist on
disclosure of the origin and proof of prior informed consent, as few countries do
today, for the use of the biological materials or IK on which the invention is
based, help in perpetuating the inequitable system. One prime cause for this
situation is that the international agreements/treaties relevant to the protection
and recognition of IK lack mechanisms required for its enforcement. International
conventions and treaties dealing with IK are characterized by the fact that they
are not binding. Every clause that deals with benefit-sharing is contested and
refused. ILO Convention No. 169, which says a lot about legal standards for
indigenous rights, fails to protect the IPR of indigenous people. Whereas the
UN Declaration on the Rights of Indigenous People recognizes the rights and
aspirations of the Indigenous People, it is a non-binding document, which
cannot be legally enforced. In the International Treaty on Plant Genetic Resources,
developed nations have successfully blocked the international recognition of
Farmers’ Rights. They also contest any notion of paying for the use of traditional
germplasm in a benefit-sharing arrangement. The CBD, which has attempted
to push through the interests of IK, has been thwarted by the American refusal
to ratify it and accept its conditions. International agreements of this kind are
not binding on the nations signatory to them nor are there any provisions that
would compel the nations to implement provisions of these agreements. The