Beruflich Dokumente
Kultur Dokumente
resources
1) Introduction
Advancements in the field of genetic engineering found out that knowledge of
indigenous communities and genetic resources if channelized in appropriate manner
are capable of bringing out successful commercial products. The growing importance
of bio-technology and increasing number of patents granted to biotechnology based
inventions highlight the potential value of genetic resources and associated
traditional knowledge. The values of traditional knowledge in development of final
product have always been a subject of controversy. The relationship between access
to genetic resources and benefit sharing and intellectual property is based on the
principle that the grant of patents or any other intellectual property rights over
biodiversity related innovation should be conditioned of biodiversity components
being acquired, obtained or accessed legally1.
Most of the developed countries including Europe and US are having very liberal
approach towards granting of patents and usually patents are given to final products
based on traditional knowledge ignoring the common knowledge associated with the
invention. There are various examples regarding granting of patents in these
jurisdictions over products based on biological resources commonly used in
developing countries like use of turmeric in wound healing, composition of jamun,
bitter-gourd and eggplant for treatment in diabetes, various products obtained from
neem tree etc. Biopiracy is a rampant phenomenon in the globalised world which
made the developing countries to be more conscious about their valuable biological
resources. In order to prevent biopiracy and to create a sense of mutual trust there
was a need for an efficient mechanism to regulate the handling of genetic resources
and associated traditional knowledge.
This has led to the development of complex and controversial legal frameworks
regarding access to genetic resources and equitable benefit sharing. Biological
resources are common heritage of mankind but benefits of use of these resources
are exploited by Multinational companies and developed nations with their
1 See Manuel Ruiz Muller, Disclosure of origin and legal provenance, available at
http://ictsd.org/downloads/2011/12/disclosure-of-origin-and-legal-provenancethe-experience-and-implementation-process-in-south-america.pdf
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5 Ibid note 3
6 See Janak Rana Ghose, Access and benefit sharing systems: An overview of
the issues and regulations available at http://ranaghose.com/research/abs.pdf
7 Ibid note 6
8 Convention on Biological Diversity
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applicant for patent should be asked to provide along with the application, detail of
the country from which he borrowed information regarding his invention, and provide
evidence to show that all legal requirements of the particular country for access and
fair and equitable benefit sharing arising from commercial use of such resources has
been fulfilled16.
The rationale behind all these measures is to ensure that in cases where biological
resources have to be exchanged abroad the holders of those resources should be
made aware of such transfer and to ensure that they receives an equitable share of
benefits which the user incur by using said resources.
3) Equitable Benefit sharing mechanism
Benefit sharing is a relatively new area that has been developed as a consequence
of rapidly changing paradigm concerning claims over genetic resources and
associated traditional knowledge. It is a compensation mechanism which is
developed as an alternative to grant of intellectual property rights to inventions based
on biological resources. Benefit sharing arrangements are intended to create or
strengthen capacity of the stakeholders through several mechanisms including
technology transfer and training which is relevant for conservation and sustainable
use of genetic resources. It is an additional indirect control mechanism that
accompanies the access regime.
Benefit sharing mechanism indicates sharing fairly and equitably with the country of
origin and other stake holders, benefits arising from use of genetic resources and
their derivatives including non monetary benefits and in cases of commercialization
15 See article 45 of bonn guidelines
16 WTO Doha work programme the outstanding implementation issue on the
relationship between the TRIPS and CBD , communication from India.pakistan, Brazil,
Peru, Thailand and Tanzania, WT/GC.W.564,TN/C/W?41,
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of
traditional
knowledge
and
biological
resources
from
organizations
like
FAO,
WIPO
and
WTO.
Extensive
44 See article 23
45 See article 11
46 See Evanson Chege Kamau, bevis Fedder and Gred Winter, The Nagoya
Protocol, what is new and what are the implications for provider and user
scientific community, available at http://www.lead-journal.org/content/10246.pdf
47 See article 10.2 of PGRFA
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48 See article 12 and carry flower, The question of derivatives- promoting use
and ensuring availability of non proprietary plant genetic resources.
49 see Dutfield, Can the TRIPS Agreement Protect Biological and Cultural
Diversity? Available @www.wipo.int/cgi-bin/koha/opac-detail.pl?bib=24572
50 See Doha Ministerial Declaration available at
http://www.wto.org/english/thewto_e/minist_e/min01_e/mindecl_e.htm
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of use of use of
genetic material of the claimant in the development of the variety and the commercial
utility and viability as well as demand for the variety in the market 55. Authority plays a
central role in determination of benefit sharing as it is left to determine benefit
sharing on case to case basis on very general guidelines given under the Act
Section 41 introduces a compensation scheme which in effect is a kind of
penalisation for not sharing the commercial benefits of a variety developed on the
basis of plant genetic resources or knowledge of farmers. Any person or any
53 See sahai Suman, Indias Plant variety protection and Farmers right Act, 2001
Current Scinence , 84(3)2003, 407-412
54 See Intellectual property rights and sustainable development
55 See section 26(5) of the Act
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58 Intellectual Property needs and expectations of TK holders, WIPO report on Fact finding
missions on IP and TK(1998 -1999) available at www.wipo.int/tk/en/tk/ffm/report/final/
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Benefits sharing
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Articles Referred
ABS
Management
Tool,
best
Practice
standard
and
handbook
for
for
facilitating
biodiversity
research
available
at
http://www.bfn.de/fileadmin/MDB/documents/service/skript163.pdf
Access
to
Genetic
resources
in
Africa
available
at
http://www.ias.unu.edu/resource_centre/ABS%20in%20Africa.pdf
RV Anuradha, Access, benefit sharing , intellectual
establishing
links
between
TRIPS
and
property rights:
available
at
http://wtocentre.iift.ac.in/Papers/2.pdf
See
http://www.sib.admin.ch/uploads/media/ABS_Ethical_Aspects.pdf
benefit
sharing
within
WIPO,
available
at
http://www.ias.unu.edu/resource_centre/UNU_ABS_Report_Final_lowres.pdf
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TBGRI
Kani
model
available
at
http://www.lead-
journal.org/content/07001.pdf
Dutfield, Can the TRIPS Agreement Protect Biological and Cultural Diversity?
Available @www.wipo.int/cgi-bin/koha/opac-detail.pl?bib=24572
Doha
Ministerial
Declaration
available
at
http://www.wto.org/english/thewto_e/minist_e/min01_e/mindecl_e.htm
Evanson Chege Kamau, bevis Fedder and Gred Winter,
The Nagoya
Protocol, what is new and what are the implications for provider and user
scientific
community,
available
at
http://www.lead-
journal.org/content/10246.pdf
F McConnell, The Biodiversity convention, A negotiating History available at
www.ssrn .com
sHamdallah
Zedan
on
Bonn
Guidelines
available
at
http://www.planttreaty.org/sites/default/files/bonn_guidelines.pdf
Intellectual Property needs and expectations of TK holders, WIPO report on
Fact
finding
missions
on
IP
and
TK(1998
-1999)
available
at
www.wipo.int/tk/en/tk/ffm/report/final/
International regime of access and benefit sharing mechanism available at
http://www.sawtee.org/publications/Policy-Brief-16.pdf
Janak Rana Ghose, Access and benefit sharing systems: An overview of the
issues and regulations available at http://ranaghose.com/research/abs.pdf
Kerry Ten Kate & Sarah A Laird, The Commercial Use of Biodiversity : Access
to
Genetic
resources
and
Benefit
sharing
available
at
http://books.google.co.in/books?id=yRfL4Q_t0cC&printsec=frontcover#v=onepage&q&f=false
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in
bio
agreement
which
happened
prior
to
CBD
see
www.ciesin.org/docs/008-129/008-129.htm
Natalie P Stionanoff, Biological resources and benefit sharing, the intersection
between traditional knowledge and intellectual property.
pushpangathan, value addition and commercialization of biodiversity and
associated traditional knowledge, available at www.nopciar.com
scope of access and benefit sharing under the international treaty available at
http://www.bioversityinternational.org/fileadmin/bioversityDocs/Policy/Access_
and_Benefit_Sharing/SGRP%202008%20Policy%20Brief_Scope%20of
%20ABS%20under%20the%20Treaty.pdf
Schroeder, Global medical ethics, benefit sharing: Its time for a definition
available at www.justor.org/stable/27719838
Shahid Alikhan and Raghunath mashelkar, Intellectual property and
competitive strategies in the 21st centuary, Kluwer Law international , london
See sahai Suman, Indias Plant variety protection and Farmers right Act, 2001
Current Scinence , 84(3)2003, 407-412
Venekataraman and latha, IPR, TK and biodiversity of India JIPR july 2008
WTO Doha work programme the outstanding implementation issue on the
relationship between the TRIPS and CBD , communication from India.
Pakistan, Brazil, Peru, Thailand and Tanzania, WT/GC.W.564,TN/C/W?41
Websites referred
www.heinonline.com
www.justor.com
www.ssrn.com
www.legalserviceindia.com
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