by Chakravarthi Raghavan

Geneva, 19 Apr 2000 -- A two-day meeting at the World Intellectual Property Organization this week on "Intellectual Property and Genetic Resources" appears to have thrown up many more complex issues needing study and analysis, even as private corporations in the North, with some help from their home governments, are speeding ahead to pirate and misappropriate rights of others for profit.

The two-day meeting, chaired by Mr. Weerawit Weeraworawit, Deputy Director-General of the Department of Intellectual Property in the Ministry of Commerce of Thailand, was convened as a result of Colombia's move last September at the Standing Committee on Law of Patents (SCP), for a provision to ensure that product and process patents relating to genetic resources are given only when these resources have been legally acquired from the country of origin.

The SCP suggested that this question be brought on the agenda of the WIPO working group on bio-technological inventions, and that a separate meeting be also convened to consider the issue.

The meeting this week mandated the WIPO secretariat to issue a questionnaire to its member states on their legal practices in a wide range of issues covered in the talks and prepare an overview paper. The report of the two day meeting is to be sent by WIPO to the Conference of Parties of the Convention on Biological Diversity (CBD), while WIPO itself is expected to set up a committee to go further into these questions.

But the Chairman's conclusion (issued in a WIPO press release) seemed to be attempting to blur the controversies swirling around patenting of life, bio-piracy of Third World resources by Northern corporations, that are rushing to claim and register patents on the basis of 'discovery'.

While Mr. Richard Wilder, Director on Global Intellectual Property Issues at the WIPO, at a press briefing, said Wednesday that many complex issues had been raised needing further study, but the chair's conclusion said the meeting had witnessed "an exhaustive" exchange of views and clear consensus.

The consensus, in the chairman's text, had as its first point the breath-taking statement: "The issue of genetic resources and intellectual property is not a North-South issue, but a matter of great importance and concern to all the Member States of the WIPO. It has to be approached by considering all the relevant and related issues."

Perhaps genetic resources and IPRs may be of concern to all states, but the fact seems to remain that while there is some 'plundering' and 'bio-piracy' of commons in the North (as in Yellowstone Park in the US, where an agreement between a private enterprise and the Park authorities has landed in courts, and there are questions in Canada over rights to resources on tribal lands), there have been no reports of corporations of the South privately 'accessing' such resources in the North and patenting them, whereas there is plenty of evidence and examples of Northern corporations and even of research institutions conducting explorations and taking away genetic resources from the South, and then patenting the mere discovery or use based on traditional knowledge.

The Weerawit statement said the issues of access to genetic resources, bio-diversity, protection of traditional knowledge and expressions of folklore, access to and transfer of technology, scientific and technical cooperation in preservation and sustainable use of bio-diversity, benefit sharing and relationship with international treaties on intellectual property are complex and inter-related and should be tackled in a comprehensive manner.

Intellectual Property has an indispensable role in the formulation of an internationally acceptable regime on these issues and WIPO, in coordination with other international organizations, should facilitate continuation of consultations among Members and through appropriate legal and technical studies.

The issue of access to genetic and biological resources, the statement added, helped contribute to the momentum of the ongoing consultative process on the new global issues of folklore, traditional knowledge, genetic resources and bio-diversity and merits in-depth and intensive study and discussion.

Wilder said at the briefing that the CBD gave states the right to control the access to their genetic resources. The proposal of Colombia last year (to link grant of patents based on genetic resources to their having been acquired legally) had evoked a lot of discussion over whether the procedural WIPO Patent Law treaty should be used to deal with this problem, or whether it should be tackled through a substantive instrument.

He said that under the WIPO procedural treaty for enabling filing of patent applications at one stroke in member-countries by an application to the WIPO, some bio-tech patent applications in the bio-tech and bio-genetics have been received. However, he said, whether such patent applications can be granted, and whether they satisfy the three tests of novelty, inventiveness and industrial applicability, was a matter to be determined by each country, and not by WIPO.

And while the US law enabled grant of patents on some of the products or their use (as in the case of neem, turmeric etc) since the traditional and oral knowledge of communities abroad was not viewed as 'prior knowledge' in the way publications in scientific journals were, the US law did not discriminate between nationals of member states (and thus not contrary to the WIPO's Paris Convention).

In WIPO's view genes could be a patentable subject matter, though individual countries would have to determine whether the patent application satisfied the three tests. But the current meeting was aimed at exploring whether common international norms were possible in this area.

At the meeting, according to participants, Colombia gave examples of rare plants and animals, and genetic resources, being illegally accessed and taken away by foreigners.

A number of developing countries gave presentations about how the issue of access to bio-diversity and sharing of benefits, was being regulated through national laws.

A WIPO bureau document before the meeting spoke of the 'multi-faceted' notion of traditional knowledge - encompassing several components by terms such as 'indigenous knowledge', 'folklore', 'traditional medicinal knowledge' etc. And, traditional knowledge, was not necessarily ancient, since it was being created every day, and evolving as a response of individuals and communities to the challenge posed by social and physical environment, and in terms of use is also contemporary knowledge.

Bio-diversity and knowledge associated with using it in a sustainable manner are "a comparative advantage of those least developed countries that are biodiversity rich" and therefore protection of traditional knowledge will enable them to participate more effectively in global markets and improve their economic performance.

The WIPO document also said that the implementation of the CBD and its Art.8 (j) relating to in-situ conservation, required three sorts of legislative actions:

* definition of standards concerning availability, scope and use of rights (including IPRs) in knowledge, innovation and practices of indigenous and local communities, as well as establishment of measures concerning enforcement of those rights;

* promotion of wide application of such knowledge, innovations and practices with approval and involvement of holders of such knowledge; and

* encouragement of equitable sharing of benefits arising from utilisation of such knowledge, innovations and practices.

There are differences on how the first issue could be addressed, the WIPO document acknowledges - whether by use of existing mechanisms of intellectual property or by developing a new sui generis system of IPR protection, whereby features of existing mechanisms would be adapted to the particular characteristics of traditional knowledge. And the issue of 'farmers rights', being addressed at the FAO International Undertaking on Plant Genetic Resources, is also relevant.

[However, NGOs and experts working with local governments in Africa and elsewhere to help them evolve systems to protect traditional knowledge, complain that WIPO/UPOV officials in meetings and seminars (from where NGOs are excluded) have been presenting the UPOV-1991 as the only legal sui generis system.]

While not elaborating on the implementation of the second and third categories of issues, the WIPO document says that these two depend very much on the outcome of the debate on the first category of issues.

A wider application of traditional knowledge for in situ conservation of biodiversity implies facilitation of technology transfer by holders of such knowledge to potential users. But technology transfer is a process, irrespective of the modality chosen for transfer, comprises three different steps - comprehension, communication and absorption. For this to happen, traditional knowledge must be systematically documented so that it forms a coherent set of instructions that a potential user can learn and apply. But such documentation raises IPR-related concerns, including public disclosure of information, which, if made without appropriate controls, may impair protection of traditional knowledge by patent or the trade secret system. It also raises issues, common to traditional and non-traditional knowledge, of public policies on tax incentives as well as recourse to compulsory licences.

However, while explaining the problems relating to IPR protection of traditional knowledge, innovations and practices, the WIPO document, does not appear to be addressing the second and third category of issues identified by it, and which the Colombian proposal sought to address by requiring patent granting authorities to inquire about legal ownership.

And while it is a substantive issue, not capable of being addressed by a procedural draft Patent Treaty, an unanswered public policy question arises if the procedural draft Patent Treaty facilitates filing of patents, without resolving the substantive issue, and a country like the US, not a party to the CBD, can thus avoid the CBD obligations, but can use the TRIPS and WIPO conventions to assert the IPRs of its corporations. (SUNS4652)

The above article first appeared in the South-North Development Monitor (SUNS) of which Chakravarthi Raghavan is the Chief Editor.

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