IMPACT OF INTELLECTUAL PROPERTY RIGHTS ON

BIODIVERSITY CONSERVATION AND SUSTAINABLE

DEVELOPMENT
Allocation of IPR’s-over biological resource-may endanger
sustainable growth of universe
IPR has socio economic impact on human phase.
The interactive balancing act between both the IPR and Biodiversity
needs an hour.
The current IPRs regime is mainly encouraging the commercialization
of biodiversity and related traditional knowledge, monocultures,
Protection of New plant varieties and genetically modified organisms,
Bio -piracy which usually have a direct implication on biodiversity.
 BIODIVERSITY
CONSERVATION

ACCESS AND
BENEFIT SHARING
AND AGRICULTURE
TECHNOLOGY
TRANSFER

INTELLECTUAL
PROPERTY
RIGHTS

FOOD SECURITY
ENVIRONMENTAL
BIOSAFETY & RIGHT TO
HEALTH

TRADITIONAL
KNOWLEDGE
BIODIVERSITY
CONSERVATION
INTELLECTUAL PROPERTY RIGHTS AND BIODIVERSITY CONSERVATION:
IPRs are composite of “ideas, inventions and creative expressions ”.It usually
provides such a right to ownership would encourage for further innovation
,creativity and to the benefit of everyone.

The main basic objective of CBD :

• Conservation of biological diversity
• Sustainable use of biodiversity components
• Fair and equitable share of benefits arising out of genetic utilisation
resource.
 Transfer of technology (bio technology) is also one of the modes of achieving
the objective of CBD, IPR is identified as one of the significant aspect of
technology transfer.
Article 15 - generally focused on creating systems to facilitate the applications for
access, resulting in individually structured benefit-sharing agreements, after
negotiations between applicant, providers, and competent national authorities.
TRIPS agreement 1995 deals with the intellectual property rights, which includes
patent and sui generis system for plant variety protection invoked by UPOV.
The Bonn Guidelines On Access To Genetic Resources And Fair And Equitable
Sharing Of Benefit Arising Out Of Their Utilisation”, adopted by the Conference
of the Parties to the CBD, provided a series of voluntary guidelines and decision-
making tools developed that provide technical assistance to countries in
implementing the CBD.
Nagoya protocol, 2010 is the supplementary agreement to CBD 1992, it sets out
the obligation on contracting parties.
IPR related treaties are invoked by WIPO Cooperation treaty (PCT), 1970 and
Patent Law treaty (PLT), 2000 .
Diamond vs. Chakarvarti
(Supreme Court,447 U.S,303)

•patent for a live, man-made

microorganism.
 new species of bacterium
metabolizing hydrocarbons in
a manner unknown in
naturally occurring organisms
using recombinant DNA
processes.

Issue- May a live, man-made

microorganism be patented?
Held - (Burger, C.J.) Yes. A
live, man-made
microorganism is a non-
naturally occurring
composition and therefore
may be patented
INTELLECTUAL PROPERTY RIGHTS AND AGRICULTURE:
1) Agriculture + Biodiversity= agro bio diversity.
2) Globalisation of agricultural trade –threat to-global food security
3) IPR extension-private rights on seed variety and agricultural research.
4) TRIPS require all WTO members to provide IPR protection to certain new plant
variants, developing countries can choose to provide patents or develop a sui
generis system to protect innovations in agriculture.
5) The establishment of the international institutional mechanisms, such as, the
Convention on Biological Diversity (CBD) and the WTO and further, signing of
International Treaty on Plant Genetic Resources for Food and Agriculture
(ITPGRFA) and International Convention for the Protection of New Varieties of
Plants (UPOV) 1961, the growing importance and the global scope of IPRs in
agricultural management and its sustainable use are well realized and
recognized.
GM seeds were introduced in international market, 1994(V-Gurt)
Use of terminator technology seeds-threat to human health
Indian legislation:
oSeed Bill 2004 is also urging its stand in regulating seed quality.
oConstitution of the National Commission of Farmers, by Government
of India -“Green Revolution to Ever-Green Revolution” (“water
harvesting, soil health improvement, dissemination of new technologies, infrastructure
development and application of science and biotechnology, and organic farming and
farmers welfare the pivotal points triggering the new model)

Rights of farmers - Indian Plant Variety Protection and Farmers’

Rights Act 2001 India has chosen to develop a sui generis system.
By this the corporate breeders right are protected and involves
threat on farmers.
IP RIGHTS AND FOOD SECURITY-RIGHT TO HEALTH:

 Food insecurity- central concern - developing countries - mal nutrition

 International concern like Doha Ministerial Conference, the WTO emphasised
that special and differential treatment is necessary to allow developing countries to
take into account their development needs, highlighting among them food security.
 Similarly, the Plan of Action adopted by the World Summit on Sustainable
Development (WSSD), 2002 to eradicate poverty and to increase food
availability and affordability as well as the need to substantially reduce the number
of people suffering from hunger.
 Introduction of agro biotechnology is also in arise now to have possibly modified
pro-vitamin-A rice for nutrition value.
Secondly the predominant “Right
to health” is the fundamental right
of every human being .
Patenting plants which carry
medicinal effect is the target of
world countries especially for the
life threatening diseases like
HIV/AIDS epidemics.
 possession of patent right by
pharmaceutical company-
monopoly-for years.
INTELLECTUAL PROPERTY RIGHTS AND TRADITIONAL
KNOWLEDGE:
Traditional knowledge is also one among the factor of bio diversity.
 The knowledge of local communities, farmers and indigenous
peoples, for instance plant varieties locally developed, wild and
domesticated biological resources, knowledge of healers regarding
medicinal and therapeutic properties of plants as well as on how to
conserve these resources is now recognised precious for future
development or even survival of mankind.
 Biodiversity based farming system to monocultures is promoted
through IPRs
Biopiracy :
commercial exploitation of
biological materials
PATENT GRANTED ON TK BASED PRODUCTS
TURMERIC CASE
NEEM CASE
BASMATI CASE
JEEVANI DRUG (KANI TRIBE,INDIA)
AYAHUASCA(TRADITIONAL MEDICINE USED
BY NATIVE OF AMAZON)
oThe patent for developing a bean named ‘Enola’ (of a particular
yellow colour) was granted to Mr. Larry Proctor in 1999 .
oTraditional Knowledge is a complex multi facet issue.
The WIPO established the Inter-Governmental Committee on
Intellectual Property and Genetic Resources, Traditional Knowledge
and Folklore (“IGC”) in 2000 to reconcile the international intellectual
property regime with concerns relating to conservation of biological
resources as well as those relating to effective protection for
traditional knowledge.
Thus main concern of protection of traditional knowledge should be
regarding sustainable use of indigenous knowledge and benefit
sharing. An international system may be more realistically based, at
least in the short term, on a basic agreement on some essential
elements of TK protection and the mutual recognition in national or
regional level.
INTELLECTUAL PROPERTY RIGHTS AND ENVIRONMENTAL BIOSAFETY:
o Genetically modified (GM) plants and animals pose new threats to the
conservation of biodiversity.
 International stand on CBD Article 19(3) makes obligation on parties to make
appropriate procedure in managing the sale,handling and use of modified
organism out of biotechnology for the conservation and sustainable use of
biological diversity.
•The Cartagena Protocol on Bio safety recognizes the adverse effect of trans-
boundary movement of genetically modified organisms (GMO) on conservation and
sustainable use of bio diversity.
•Environmental release of GMO lead to:
i. risk human health toxic on food
ii. Use of chemicals in agricultural field
iii. Nutritional value reduction
iv. Genetic pollution
v. High in cost for agriculture.
• India a diversified country, has substantial genetic diversity and is a
centre of origin of many crop species
• The Department of Biotechnology (DBT) and the Ministry of
Environment & Forests (MoEF) are the two regulatory bodies.
• In respect of CBD India enacted “The Biological Diversity Act 2002”
to conserve and make Environment Impact Assessment raise of bio
safety is out of the consequence on development of bio technologically
transgenic organisms into the environment.
• India is a pioneer country to introduce biosafety regulations .
INTELLECTUAL PROPERTY RIGHTS ACCESS AND BENEFIT SHARING AND
TECHNOLOGY TRANSFER:
• (ABS) refers to the way in which genetic resource be accessed and benefit
arising out of such resource be shared to the provider

• Acess of genetic resource can be of in -situ ( within ecosysytem) or ex-

situ(outside the ecosysytem).
• Benefits arising out like monetary or non monetary benfits
arising out of utilisation of genetic resource and their
traditional knowlege are to be shared to the acess providing nation.

• through Prior informed consent (PIC)

and mutually agreed terms (MAT)
• Article 15 of the CBD, which was adopted in
1992 and provides a global set of principles for access to genetic resources, as
well as the fair and equitable distribution of the benefits that result from their
use.
Competent National Authorities -bodies established by goverment to grant
acess to user and to represent the provider on local or national level.
Bonn Guidelines: Voluntary guidelines intended to assist governments in the
adoption of measures to govern access and benefit-sharing in their countries.
No clear provision how benefits are distributed to the local community
No standard contents of PIC and MAT
CONCLUSION:
The recent increased awareness of the value of biodiversity, the need
for its conservation and sustainable usage for present and future
generation must be made essential for the growth of traditional
knowledge(TK).
The increased economic value of traditional knowledge has led to the
search for better ways to access the knowledge through legal
mechanism.
The need for transfer of environmentally sound technology (EST) to
developing countries has for a long time been seen as one of the major
aspects of the process of sustainable development.
At the International level, both procedural and substantive steps should
be taken at both the CBD and the WTO that would enhance the ability
of the agreements to be implemented in a mutually supportive way.
To ensure realisation of the CBD’s goals and Sustainable development
goals, parties should consider:
(i) Insisting on permanent observer status in the council for TRIPS
(ii) Developing strong guidelines for access and benefit sharing
(iii) Providing additional comments on the role of intellectual
property in access and benefit sharing.
(iv) Supporting the conclusion of a binding international undertaking.
The implementation of IP obligations from a sustainable
development by striking an appropriate balance between
innovation in one hand and acess to TK and TT on other
hand and Creating appropriate mechanisms to local
innovation.
Thus IPR’s are out of governments to legislate for them
and to determine their extent such rights must be seen in
the pursuit of the objectives of sustainable development
which leads to advancement of a nation.
Diamond vs. Chakarvarti (Supreme Court,447 U.S,303)
• Brief Fact Summary- Chakrabarty (Plaintiff) sought to patent a live, man-made
microorganism.
• Synopsis of Rule of Law- A live, man-made microorganism is a non-naturally
occurring composition and therefore may be patented.
• Facts - Chakrabarty (Plaintiff) developed a new species of bacterium capable of
metabolizing hydrocarbons in a manner unknown in naturally occurring
organisms using recombinant DNA processes. The microorganisms exhibited
great promise in the treatment of oil spills. Plaintiff applied for a patent, which
was denied by the Patent Office (Defendant) on the basis that the
microorganisms were products of nature and therefore unpatentable. The Board
of Appeals affirmed. The Court of Customs and Patent Appeals reversed, and the
United States Supreme Court granted review.
• Issue- May a live, man-made microorganism be patented?
• Held - (Burger, C.J.) Yes. A live, man-made microorganism is a non-naturally
occurring composition and therefore may be patented.