Reconciling TRIPS and CBD through disclosure requirement

The Convention on Biological Diversity (CBD) provides a multilaterally agreed set of rules for access to and sharing of benefits arising out of the commercial use of genetic resources, while WTO TRIPS agreement is sought to protect modern biotechnologies. In view of this, the current paper believes that CBD and TRIPS should be seen in conjunction with one another.

Nevertheless, the paper emphasises that the implementation of CBD and TRIPS in a mutually supportive manner raises several issues that require careful consideration. These issues relate to the concerns with the grant of intellectual property rights (IPRs) over products and processes based on biological resources and traditional knowledge (TK) associated with the same. In addition, they also relate to the implementation of benefit sharing mechanism under CBD.

Employing developing countries’ proposals, the author concludes that:

• TRIPS should be amended so as to provide for mandatory disclosure of source of origin of biological resources in any patent application containing an invention that uses these resources
• the disclosure of source of origin must be applied also in terms of TK, in patent application containing an invention that uses such knowledge
• arguably, the inclusion of such provisions would help both countries that have been given the rights over their biological resources by CBD and the local communities, who have been using associated TK for sustaining their livelihood
• this would also complement measures taken to ensure benefit sharing in a fair and equitable manner with commercial interests exploiting the resources and knowledge
• nonetheless, wrongful or inadequate disclosure can defeat the entire objective of the patent system