CBD input to TRIPS Review of life-form patents

by Gurdial Singh Nijar

Montreal, July 5 -- The Intersessional Meeting of the UN
Convention on Biodiversity (CBD) recommended Thursday that its
Conference of the Parties (COP) should develop ways and options to
closely follow the work at the WTO and WIPO on the TRIPS issues,
and provide them with inputs from the perspective of the

The World Trade Organization's TRIPS agreement and the Convention
on Biological Diversity (CBD) are linked and there is a need to
ensure their mutual supportiveness, the intersessional meeting

Earlier at the plenary meeting, the African Group of countries
had called upon COP to invite the TRIPS Council to take advantage
of this year's review of Article 27.3 (b) to clarify and overcome
the potential conflicts between the Convention and the TRIPS

This Article allows for the patenting of life forms, including
micro-organisms and micro-biological processes.

The African Group also suggested that the TRIPS review be
deferred until after the 5th session of the CBD's Conference of
Parties in May 2000.

"The TRIPS Agreement creates potential for disastrous conflicts
between the technologically-advanced and the less
technologically-advanced countries," Cameroon Ambassador
Philomenon Yang said, speaking on behalf of the African Group.

Yang added: "It will endanger the traditional rights of farmers
and of local communities all over the world... (and) greatly
jeopardize the application of the Convention,".
The potential conflicts highlighted include

* the sui generis protection of plant varieties (the inclusion in
national laws of Farmers' Rights as well as the right for farmers
to continue with their traditional practice to save, use,
exchange and sell farm-saved seed and propagating material); and

* the right of countries to exclude plants, animals, micro-
organisms and any parts thereof and microbiological processes for
plant and animal production.

The rest of the developing world supported Africa in quick
succession, and came out against the patenting of life forms.
Norway, supported by the European Union, emphasized that in
working out the relationship between the two agreements, the
knowledge and innovations of indigenous peoples and local
communities should be protected - a key element in the CBD.

The USA saw no conflict between the two agreements. The
relationship is complementary and not contrary, said the US
delegation head. TRIPS establishes appropriate levels of
protection for IPRs, including patents that can be supportive of
the CBD.

In an obvious reference to the call by countries that TRIPS not
undermine the objectives of the CBD, the US, a non-party to the
CBD, was alone in warning against any weakening of patent laws,
"as this would result in less incentives for the protection of

Disputing these contentions, a representative of The Third World
Network cited numerous examples of the serious negative impacts
of IPRs over life forms in developing countries.

The examples cited by the TWN representative included:

* the grant of patents on genetic resources from developing
countries, often without the knowledge and consent of the owners
of the resources;

* broad-scope patents that limit access to a wide segment of

* protection rights claimed by plant breeders over materials
deposited in international gene banks; and

* the protection by IPRs of living materials which raised ethical
issues sufficient to exclude private parties from obtaining
exclusive rights over such materials.

Discoveries, and not inventions, are also being patented in clear
violation of basic patent law tenets, said the TWN
representative. One example was the patents on DNA fragments.

The Japan Bioindustry Association has said 'no' to such patents.
The Association represents 300 major Japanese corporations, 60
research institutes and 1,500 individual members.

The Third World Network stressed the need for urgent pro-active
participation in the on-going TRIPS review.

The Acting Executive Secretary, Hamdallah Zedan told the meeting
that a representative would be sent to brief the TRIPS Council at
its next meeting on the review of Article 27(3)(b) on 7th July in
Geneva. (SUNS4471)

The above article first appeared in the South-North Development
Monitor (SUNS).

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