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

Abstract

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