BIOPIRACY Imitations Not Innovations - Biopirateria

18 Biopiracy: Imitations Not Innovations
TRIPS Agreement remains the only binding international treaty of relevance,
and therefore to be meaningful, any move to protect IK and bioresources will
have to be reflected in its provisions.
In one of the most coherent demands made of developed countries, India
along with Brazil, China, Cuba, Dominican Republic, Ecuador, Pakistan,
Thailand, Venezuela, Zambia and Zimbabwe had in 1996, in the WTO
Committee on Trade and Environment, demanded an amendment to Article 29
of TRIPS, to impose conditions on patent applicants that would require adequate
disclosure of country of origin of the bioresources or IK. Apart from disclosure,
developing countries want the inclusion of provisions for proof that prior informed
consent has been obtained from the owners of the genetic material and IK. In
addition to this, proof of agreement on benefit-sharing with owners of genetic
resources and IK, has to be given by the patent seekers. All these requirements
shall be conditions to be fulfilled for the grant of patent. Examples of national
patent legislation incorporating disclosure of origin include that of India, Andean
Communities and Costa Rica. In India, Section 10 of the Patents Act, 1970,
provides that the applicant must disclose the source and geographical origin of
any biological material deposited in lieu of a description. Also section 25
(opposition to grant of patent) now allows for opposition to be filed on the
ground that “the complete specification does not disclose or wrongly mentions
the source or geographical origin of biological material used for the invention”.
The nature of IK is such that most of it is transmitted orally rather than
in written form. This poses particular problems when parties not authorized by
the holder of that knowledge seek to obtain IPRs over it. In the absence of any
accessible written record, a patent examiner in another country is unable to
access documentation that would challenge the novelty or inventiveness of an
application based on IK. The only option for the aggrieved party, that is, the
holders of the knowledge, is to challenge the patent during the granting process
or after grant, where national laws permit. For instance, this is what the Indian
Government achieved by overturning the patents on basmati rice and turmeric
in the US. The presence of administrative or quasi-judicial patent opposition or
re-examination procedures has facilitated the overturning of these patents. In
the absence of such procedures it would have been necessary to initiate proceedings
before the relevant court with the inherent cost and time implications. Even
with such procedures, it is extremely difficult and expensive for developing
countries to monitor and challenge IPRs issued all around the world.
One defence against biopiracy is the documentation of IK. To address this
problem, WIPO and a number of developing countries led by India and China