The Incorporation of the CBD Mandate on Access and Benefit-Sharing into TRIPS Regime: An Appraisal of the Appeal of Developing Countries with Rich Genetic Resources

Abstract

It is clear that most valuable genetic resources are located in developing countries. The value, academically and from a business perspective, has been luring biological researchers and bio-technologically advanced companies to conduct bio-prospecting activities in these areas. The patents resulting from this illegal bio-piracy are then granted in developed nations. The recent national implementation of the CBD by imposing a relatively restrictive policy on access and benefit-sharing of genetic resources may correct this unjust situation. But, the CBD is a conservation treaty, and by its very nature, cannot govern the national IPR system of countries that are not contracting parties to the treaty. Developing countries thus endeavor to play a very aggressive role in pushing for the revision of the WTO/TRIPS with a view to accommodating the CBD requirements. The approach is not welcomed by patent powerful Members, such as the United States. This article will examine whether appeal would be fair and just in the TRIPS context and how the WTO should address the issue. The article proposes that the proposal partially departs from the integrity of the patent system. For the sake of balancing rights and obligations, a new concept for the conditioning of the grant of patents on disclosure of the CBD elements deserves the careful contemplation of the international community. Even if the approach were not entirely adopted and thus not mandatory for all WTO members, this article suggests that it should discretionary for all members. Hence, the policy of linking the CBD to national patent systems should not be challenged at the WTO by countries that disfavor the appeal.

Keywords: genetic resources, bio-piracy, patent, CBD, ABS, WTO, TRIPS, Doha Declaration