REVIVING DISCUSSIONS ON THE RELATIONSHIP
BETWEEN THE TRIPS AGREEMENT
AND CONVENTION ON BIOLOGICAL DIVERSITY
COMMUNICATION
FROM BRAZIL, INDIA and PERU
_______________
1 INTRODUCTION
1. Despite the explicit directive of the Doha and Hong Kong Ministerial
Declarations, discussions on the mutual supportiveness of the Agreement on
Trade Related Aspects of Intellectual Property Rights (TRIPS) and the
Convention on Biological Diversity (CBD) have been dormant since 2011. The
delegations of Brazil, India and Peru call on the Members of the World Trade
Organization (WTO) to provide a clear mandate under the Ministerial Declaration
of the 14th Ministerial Conference to revive discussions on this issue.
2 AN OVERVIEW OF THE CBD (1992) AND RELATED INSTRUMENTS
2. A WTO-WIPO-WHO joint study of 2020 titled 'Promoting Access
to Medical Technologies and Innovation' notes the profound influence of
traditional medical knowledge on modern medicine. With 88% of WHO members
acknowledging traditional and complementary medicine use, international trade
in these products is growing rapidly. However, the study notes that this has
come on the back of the rampant misappropriation of genetic resources (GR) and
associated traditional knowledge (TK). Some prominent examples of biopiracy
include neem (India), turmeric (India), kava (Pacific Islands-Fiji and
Vanuatu), ayahuasca (Brazil), quinoa (Peru), and hoodia (South Africa).[1] Assessing the economic
loss to developing countries due to biopiracy is a complex task involving
multiple factors, such as the loss of intellectual property (IP) rights,
restricted access to genetic resources, negative impact on traditional
industries, and discouragement of research and development in the country of
origin.
3. According to a recent WHO report, developing countries, especially
those with rich biodiversity in Asia, Africa, and South America, supply
approximately two-thirds of the plants used in western and global medical
systems. This highlights the dependency of global health industries on the
biodiversity of these regions.[2] While recent data is
publicly unavailable, a 1999 report by the United Nations Development Program
estimates that if a 2% royalty were charged on genetic resources developed by
local innovators in the South, the North would owe over USD 300 million
in unpaid royalties for farmers' crop seeds and more than USD 5 billion in
unpaid royalties for medicinal plants.[3] Another study notes that approximately 29,000
herbal substances used by more than 1000 companies have annual revenues
exceeding USD 60 billion, with the bulk of the herbal products, or at least the
raw material, sourced from biodiversity-rich countries in Asia, Africa, and
South America.[4]
4. The CBD (1992) marked the first step towards recognising the
sovereign rights of states over their biological resources. It conditioned
access to biological resources and associated traditional knowledge with prior
informed consent (PIC) and access and benefit sharing (ABS) with local
communities, who are the rightful holders of such knowledge. The Nagoya
Protocol, which came into force in 2014, further developed the legal framework
established under the CBD to operationalise the requirements of PIC and ABS. A
significant shortcoming of the CBD and Nagoya Protocol is that it does not link
these requirements with the patent system, resulting in the grant of erroneous
patents to biopiracy-based inventions and lack of enforcement of the PIC and
ABS commitments, particularly in a transboundary context.
3 THE ADOPTION OF THE WIPO TREATY (2024) ON GENETIC RESOURCES AND
ASSOCIATED TRADITIONAL KNOWLEDGE
5. To address the above shortcomings, negotiations have been ongoing at
the WIPO for over two decades to advance the conservation of genetic resources,
traditional knowledge and traditional cultural expressions through the IP
system. In 2000, the WIPO Intergovernmental Committee on IP and Genetic
Resources, Traditional Knowledge and Folklore (hereinafter 'IGC') was
tasked with concluding an international legal instrument to protect genetic resources,
traditional knowledge and traditional cultural expression through the IP
system. In May 2024, the WIPO Treaty on Intellectual Property, Genetic
Resources and Associated Traditional Knowledge ('the WIPO treaty') was
adopted to increase the mutual supportiveness of the systems for the
preservation of genetic resources and associated traditional knowledge and
patent rights.
6. The WIPO treaty requires patent applicants to disclose the source of
the genetic resources and traditional knowledge on which their claimed
invention is based. The disclosure requirement, if complied with by the
applicant, would aid the patent office in conducting a prior art search. It
would help prevent the patenting of inventions based on genetic resources and
associated traditional knowledge that do not fulfil the requirements of novelty
and inventiveness. Genetic resources and associated traditional knowledge
obtained from one country are often used as a basis for seeking a patent in
another. In such situations, the disclosure requirement would make the patent
office the checkpoint to identify instances of transboundary utilisation of
genetic resources and traditional knowledge.
7. While a progressive instrument, the WIPO treaty could be further
strengthened by integrating these commitments under the TRIPS Agreement. First,
the WIPO treaty does not offer recourse to international dispute settlement if
states fail to establish the disclosure requirement under their domestic patent
systems. Second, the WIPO treaty does not address the requirements to obtain
PIC under mutually agreed terms (MAT). Hence, even though the treaty introduces
the disclosure requirement, it does not provide for compliance with the ABS
requirements. The WIPO treaty shifts the burden to ensure compliance on the
government agencies and local communities of the provider country, who must
monitor published patent applications worldwide to ensure compliance and enforce
ABS through PIC under MAT. Thus, amending the TRIPS Agreement to integrate the
mandatory disclosure requirement could subject this commitment to the WTO's
legal framework. Further, the TRIPS Agreement could build on the WIPO treaty to
require evidence of PIC and benefit‑sharing arrangements as a
prerequisite for patent grant or commercialization, thereby reinforcing the PIC
and ABS commitments.
4 ESTABLISHING A LINKAGE BETWEEN THE CBD AND THE TRIPS AGREEMENT
8. Given the close relationship between IP and international trade, the
TRIPS Agreement integrated the minimum standards of IP protection provided
under the various WIPO treaties into the trading regime, with the underlying
objective of extending the WTO's binding dispute settlement, predicated on
legally-supervised trade retaliation, to IP protection and enforcement. In
2001, paragraph 19 of the Doha Ministerial Declaration mandated WTO
Members to discuss the relationship between TRIPS and CBD as part of the TRIPS
review under Article 27.3(b) guided by the objectives and principles set out in
Articles 7 and 8 of the TRIPS Agreement. The Hong Kong Ministerial Declaration
of 2005 reiterated the need to work towards a relationship between the TRIPS
Agreement and CBD (paragraph 39).
9. In 2008, a coalition of 109 WTO Members proposed an amendment to the
TRIPS Agreement to implement the mandatory disclosure requirement and called
for further negotiations linking the requirements of PIC and ABS with the
patent system (document _TN/C/W/52).
10. This was followed by another proposal in 2011 (document _TN/C/W/59), which garnered the support of 73 developing countries comprising
India, Brazil, China, Colombia, Ecuador, Indonesia, Peru, Thailand, and the
African and ACP Groups. Drafted as a textual proposal to amend the TRIPS Agreement
through the introduction of Article 29bis,
the submission spells out the provision for the mandatory disclosure of origin
in patent applications, evidence of PIC and ABS as a pre‑requisite
for patent grant or commercialization, and the legal implications of
non-compliance, including patent revocation (see Annex I).
11. The adoption of the WIPO treaty could provide a fresh impetus to
resume these negotiations. A recent submission by Bangladesh, Colombia, Egypt
and India (document _IP/C/W/708) has called for reviving WTO negotiations on this issue. Preserving
genetic resources and associated traditional knowledge through the TRIPS
Agreement will have two obvious advantages. First, the disciplines would be
subject to the WTO's binding dispute settlement as compared to the WIPO treaty,
which does not offer recourse to international dispute settlement. Second, it
provides an opportunity to negotiate stronger disciplines and address the
shortcomings of the WIPO treaty, in the context of achieving sustainability
objectives. For instance, in contrast to the WIPO treaty, the proposed
amendments to the TRIPS Agreement could require evidence of prior consent and a
benefit-sharing arrangement as prerequisites for the grant of a patent or its
commercialization. This would strengthen the enforcement of the PIC and ABS
commitments, especially in a transboundary context.
5 WAY FORWARD
12. In the context of protecting the legitimate rights of traditional
communities and preventing misappropriation of genetic resources, the momentum
gained from adopting the WIPO treaty must be channelled towards reviving
negotiations on TRIPS-CBD linkage, thereby fostering greater harmony between
the environmental, IP and trade regimes. This will ensure the flow of benefits
to local and indigenous peoples of the developing countries as the providers
and conservers of the genetic resources and the associated knowledge. This
would also prevent the grant of erroneous patents and facilitate and ensure
adequate and effective protection of Intellectual property rights.
13. Given this background, the delegations of Brazil, India and Peru
call on WTO Members to revitalise the discussions on the relationship between
the TRIPS Agreement and CBD as part of the mandate of the 14th Ministerial
Conference of 2026.
ANNEX
1
AMENDMENT
TO ARTICLE 29bis, TRIPS, AS PROPOSED UNDER _TN/C/W/59
Presented below is
the draft amendment to the TRIPS Agreement proposed by the delegations of
Brazil, China, Colombia, Ecuador, India, Indonesia, Peru, Thailand, the ACP
Group and the African Group under (document _TN/C/W/59) (2011).
Article 29bis
Disclosure of Origin of Genetic Resources and/or
Associated Traditional Knowledge
1._