European Commission Directorate-General for Trade

Biodiversity

What the debate is about

The debate on the relationship between intellectual property and biodiversity mainly evolves around the alleged contradiction between the recognition, by the Convention on Biological Diversity (CBD), of the states' sovereign rights over their generic resources (or biological material) and the possibility, under the TRIPs Agreement (Agreement on Trade Related aspects of Intellectual Property rights), to provide patents on inventions incorporating genetic resources.

Developing country Members have expressed the view that the TRIPs Agreement should be reconciled or brought into harmony with the CBD. Allegations have been made that TRIPs would encourage misappropriation of genetic resources or "biopiracy", i.e. the abusive patenting, by Northern companies, of genetic resources from the South. This is in many respects a course caricature of a much more complex reality, but some of the underlying concerns are justified.

TRIPs and CBD

Paragraph 27.3(b) of the TRIPs Agreement deals with the patentability of so-called "life forms". Members are not obliged to grant patents on plants and animals, but must allow patents on micro-organisms (provided they meet the patentability criteria, i.e. they must be new, involve an inventive step and be capable of industrial application). The obligatory review of Article 27.3(b) of the TRIPs Agreement expanded into a broad discussion on the interplay between the TRIPs Agreement and the CBD, and the protection of traditional knowledge (TK).

The CBD provides that states have sovereign rights over their genetic resources. As part of this sovereignty they can regulate property, access and contracts relating to access to genetic resources and related traditional knowledge, and regulate conditions, in particular as regards the fair and equitable sharing of the benefits arising from the use of genetic resources.

What developing countries want

Developing countries have called for amending the TRIPs Agreement (which allows the patenting of inventions including living material) in order to harmonise it with the CBD. The most radical proposals (mainly from the African group) tend to a general ban on any form of IP protection for living material.

Other countries (such as Brazil or India) rather claim that the TRIPs Agreement undermines, or at least insufficiently supports, the objectives of the CBD because it does not oblige those seeking patent protection for genetic resource-based inventions to respect the CBD principles on access and benefit sharing, or does not provide tools enabling providers of genetic resources or TK holders to verify whether patent applicants have done so.

The Doha mandate

Paragraph 19 of the Doha Ministerial Declaration instructs the TRIPs Council to examine the TRIPs/CBD relationship and the protection of TK, under three different processes: the (continuation of the) 27.3(b) review, the more general 71:1 review and as part of the "outstanding implementation issues" (i.e. Paragraph 12 of the Ministerial Declaration). The list of outstanding implementation issues was compiled by the WTO Secretariat (Job 152 rev.1, 27 October 2001). It deals with about 59 outstanding implementation issues that were raised by developing countries at the Seattle Ministerial Conference and later on. As far as the TRIPs Agreement is concerned, the list includes a range of proposals in several areas (geographical indications, transitional periods, link with CBD, farmers' rights, patentability of living organisms and TK).

Where we are now

The biodiversity issues have seen no major progress since Doha although numerous communications and papers have been tabled by WTO Members. The discussions in the TRIPs Council have focused for some time now on the creation of a direct interface between the CBD and the TRIPs Agreement itself by incorporating a requirement into the TRIPs Agreement that patent applicants should disclose the source or origin of the genetic resource and/or related TK used in an invention. The EU has actively participated in the debate and taken a flexible and developing country-friendly approach. This issue is currently also debated at WIPO - see enclosed document submitted by the European Community and its Member States dated May 17, 2005.

Supporting information

• Report on "Disclosure of Origin in Patent Applications" (QMIPRI 2004)