The Relationship between TRIPs and the CBD: A Way Forward?

Posted: 18 May 2009

See all articles by Mitchell Smith

Mitchell Smith

Bond University Faculty of Law

Date Written: May 11, 2009


The relationship between the Trade-Related Aspects of Intellectual Property Rights Agreement (TRIPs) and the Convention on Biological Diversity (CBD) remains disputed. Relevant to the debate are developing countries, who hold a vast majority of the world’s biological resources yet have traditionally lacked the enforcement mechanisms necessary to protect them. This paper considers the responses of India, the Andean Community and Costa Rica to the provisional conflicts between TRIPs and the CBD. It is argued that in meeting CBD obligations, all three have created legislation that may be considered inconsistent with the broad level of patentability provided for under TRIPs. A potentially more useful approach to the TRIPs-CBD conflict is one that allows broad patentability of biogenetic resources, but that requires exceptions to exclusive rights over patents generally provided for in TRIPs. Also suggested is further utilisation of bioprospecting contracts created through more extensive legislation.

Keywords: TRIPs, Convention on Biological Diversity, Patents, Biogenetic Resources

Suggested Citation

Smith, Mitchell, The Relationship between TRIPs and the CBD: A Way Forward? (May 11, 2009). Available at SSRN: or

Mitchell Smith (Contact Author)

Bond University Faculty of Law ( email )

Gold Coast, QLD 4229

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