Bridging the Gap Between the Biodiversity Convention and TRIPs: A
New Way to Approach Technological Innovation and Economic Development
By: Reid Johnson 1a
In the modern world, the majority of
the world’s biotechnology industry is headquartered in developed countries,
while developing countries hope to use the coveted technology in order to
bolster their economies and general well-being.
With the developed countries’ firm hold on the infrastructure to
investigate new biotechnologies, they dominate innovation, exports of
technology intensive goods, and technology transfer. With this stronghold, developed countries
have been able to establish legal frameworks that foster their property
interests, while developing countries are forced to pay to use these needed products. The top five countries with the largest
valuation of patent rights are developed countries: the United States, Germany,
France, the United Kingdom, and Italy. As a result of this
imbalance, another split in the great North-South debate has emerged in the
field of intellectual property and the biotechnology industry.
More specifically, the developed northern countries
want to derive full economic benefits from their innovation, knowledge, and
technology while protecting their interests through strong intellectual
property laws. Conversely, developing countries favor weaker
intellectual property protection in order to access advanced technology and use
it for industrial development, modernization, and to compete in the modern global
economy. Currently, the North has prevailed.
The primary international law regarding
technology-transfer comes from the Agreement on Trade-Related Aspects of
Intellectual Property Rights (TRIPs). However, prior to TRIPs’ ratification,
the Convention on Biological Diversity (CBD) was endorsed to conserve
biodiversity throughout the world. While
each of the agreements maintain opposing goals, TRIPs has emerged as the
predominant source of law at the expense of the CBD. This essay will outline the two agreements
and their underlying goals and values, identify issues in their application,
and discuss a solution to bridge the gap between the competing legal frameworks
that will promote further technology innovation in developing countries while
still providing incentives for developed countries to seek out new
Overview of the International Biotechnology
Industry and its Competing Perspectives on Legal and Social Constructs
Modern scientific and market forces have led to
a rise in the biotechnology industry with respect to the exchange of genetic
resources. There is a large split between the North, which
controls the majority of the technology that harnesses this industrial surge,
and the South, where the biodiversity that provides the genetic resources for
the industry is located. Essentially, “bioprospectors extract natural
resources from these host countries and use the resources to create new
agricultural, pharmaceutical, and other technological products.” Many of these products are coming from
traditional, remote communities who have used the natural organisms for
centuries. Researchers look to these communities for
“leads” to find potential new products and cut research costs by millions. After doing so, the multi-national
enterprises use the genetic and biochemical resources to produce “high-value
commodities and thus enjoy substantial gross earnings from the commercial
product.” These products take large amounts of
resources to study and develop, and most of the work takes place far from the
original source of the genetic material.
While these new developments can produce
multi-million dollar products, the original holders of the resources are
unlikely to receive compensation for access to the undeveloped genetic
resource. Because the return on these developments is
even a relatively small share of the profits could produce large revenues for
the developing country. Additionally, if
the technologies can be transferred to the host country, the host country could
establish foundations for development.
However, if strong intellectual property rights (IPRs) are maintained,
the developing countries will be forced to pay large royalties to use the
technologies. These payments add to development costs, and
can make production unaffordable for developing countries. Moreover, development in the
biodiversity-rich developing countries is stifled by the lack of payment for
access to the resources while the developed countries’ production methods have
been protected by their respective IPRs.
As the benefits of conserving genetic resources
can be seen on an international and national level, intellectual property
regimes have been utilized in determining the rights to the materials and
knowledge associated with genetic resources. The international ideal seeks to conserve
genetic resources for future generations and to preserve traditional knowledge. At the national level, a source country has an
interest in “regulating access and ensuring that the benefits accruing from
commercialization of traditional knowledge are shared with its indigenous and
local communities and those of user countries in ensuring efficacious access to
genetic resources.” Conversely, user countries (i.e. the
developed countries) rely on national patent systems to control their products
and fully realize the gains of their investments. As a result, biodiversity has been
transformed into a commodity and rights to access the materials have spawned
debates regarding the treatment of biodiversity in the field of
biotechnology. The competing
perspectives on the issue have thus polarized the debate.
The bioprospecting perspective seeks to provide
scientific researchers with access to locate and to use genetic resources and
knowledge in order to create new technologies for the benefit of all. It is believed that all three objectives of
the CBD – sustainable use, conservation of biological resources, and
benefit-sharing – can be met through bioprospecting. Thus, bioprospecting is seen as a way to
generate products and revenue from resources and knowledge that would have
remained undeveloped in their original location.
Bioprospectors are scientists or researchers
who search the world attempting to locate substances that they can use to
derive valuable new drugs or food sources. This process is extremely expensive and
lengthy. It is estimated to take, on
average, 7-18 years from the start of any research and development program to
arrive at a marketable product, if a product with sufficient demand were
developed at all. Thus it is important for companies to focus
on products which may produce a high demand. While the amount of effort and risk involved
are tremendous, it is relatively easy to copy these products. Due to the effort and risk, the
pharmaceutical and agricultural industries remain dependent on strong
intellectual property protection, especially patents, to protect their
The biopiracy perspective views the researchers
and scientists, as well as the corporations for whom they represent, as
“biopirates” that steal natural and biological resources from developing
countries’ ecosystems in order to make a profit without compensating the host
country. Proponents of the biopiracy perspective suggest
that the resources and associated traditional knowledge belong to indigenous
cultures and the hosts’ ability to control the resources is being supplanted by
monopoly rights of developed countries. This neo-imperialist perspective is based on
the theory that TRIPs contains “a built-in bias against traditional knowledge
and rights of indigenous communities.” Proponents of the biopiracy prospective feel
that TRIPs “encourage[s] firms/private parties to claim patents on either
genetic material per se, or traditional knowledge uses of genetic material
without any obvious intellectual contributions … [which] lead[s] to misappropriation
of traditional knowledge….” Because of this, the industrialized countries
should have a moral obligation to ensure that source countries and the
indigenous people receive an equitable share of benefits arising from the use
of traditional knowledge and commercialization of genetic resources. Developing countries mainly prescribe to this
viewpoint and strive to invoke weaker intellectual property regimes so that
they may facilitate the transfer of technology and foster development under
their own accords.
Study – The Neem Tree
The Neem Tree from India presents an
illustration of the competing perspectives.
Indian Neem Tree seeds contain azadirachtin, a powerful insecticide that
is not harmful to humans. While the Neem Tree has been used for
centuries in India, in 1992, W.R. Grace & Co. (Grace), an agricultural
chemical company based in Florida, patented “both a method of stabilizing
azadirachtin solution and the stabilized azadirachtin itself.” Grace used the improved plants to make
Neemix, an insecticide used on food crops. While Grace’s commercialization of
traditional biocultural knowledge was viewed as a success story for the food
industry, the traditional Indian people were not compensated for their “key
insights or essential materials.” Also, because traditional knowledge is
treated as a common heritage available to all, IPR systems recognize the
improvement of traditional knowledge or traditional plant varieties, but not
the traditional knowledge itself. Therefore, there was no remedial mechanism
available to the Indian people whose traditional practice was essentially
stolen and exploited by Grace. This practice is allowed under TRIPs, but it
circumvents the CBD’s recognition of India’s sovereign rights over its natural
resources. This case and the corresponding viewpoints
are products of the current national and international intellectual property
regimes. While this case study
exemplifies the biopiracy perspective, larger forces must be considered. An overview
of the national and international legal frameworks is necessary before fully
understanding the issues at hand.
The Convention on Biodiversity
The CBD, which entered into force in 1993, is a binding
international agreement that seeks to conserve all forms of biological
resources and promote sustainable use of biological diversity. It recognizes that “conservation and
sustainable use of biodiversity can only be tackled when viewed within the
economic context in which biodiversity operates.” In doing so, the negotiators established that
biological diversity was a common concern of humankind, but affirmed that countries
have sovereign rights and responsibilities over their own biological resources
and the use thereof. Additionally, “the [CBD] adopts three broad
strategies: promoting biological conservation and sustainable use through
national law and policy, creating an international institutional structure to
support implementation and achievement of the [CBD’s] three objectives[,] and establishing
a set of principles for the international exchange of genetic resources and the
biotechnologies derived from them.” These strategies constitute the CBD’s
underlying values and objectives.
While the conservation of biodiversity is a
primary goal of the CBD, the transfer of technology appeared to be a chief
concern of the drafters. This is evident
by Article 1 recognizing the “fair and
equitable sharing of the benefits arising out of the utilization of genetic
resources, including appropriate access to genetic resources … and …
appropriate transfer of relevant technologies, taking into account all rights
over those resources and to technologies….” This inclusion demonstrates the drafters’
attempt to create an agreement that encourages the free flow of technology from
country to country and the benefits derived from it.
The CBD uses specific language in order to
establish an agreement where the biodiversity-rich countries trade access to
genetic resources for a greater share of the benefits derived from the
resources. Article 15 recognizes the sovereign rights
of countries over their natural resources and gives them the authority to allow
access based on mutually agreed upon terms and with prior informed consent. This was seen as a procedural safeguard to
strengthen the bargaining power for developing countries.
Article 16 recognizes that both access to and
transfer of technology are essential elements of the CBD and requires the
Contracting Parties to “provide and/or facilitate access for and transfer to
other Contracting Parties of technologies that are relevant to the conservation
and sustainable use of biological diversity or make use of genetic resources
and do not cause significant damage to the environment.” However, the CBD specifically acknowledges
IPRs by stating that “access and transfer shall be provided on terms which
recognize and are consistent with the adequate and effective protection of
intellectual property rights.” While the agreement explicitly recognizes
that IPRs may conflict with the overall effectiveness of the CBD, it requires
peaceful cooperation with national and international law. The primary laws that the CBD refers to are
national intellectual property mechanisms and TRIPs.
In addition, Article 19 institutes a
requirement to “provide for the effective participation in biotechnological
research activities by those Contracting Parties, especially developing
countries, which provide the genetic resources for such research, and where
feasible in such Contracting Parties.” These clauses attempt to promote the transfer
of technology and biological research, but they also recognize the role that
intellectual property must play in the process.
If carried out as envisioned, the CBD provides developing countries a
tool for sustainable development and benefit-sharing while still adhering to
the appropriate intellectual property measures of TRIPs.
One major problem with the CBD is that one
major player, the United States, has not ratified the Agreement. The United States’ major objections to the
agreement pertain specifically to its technology clauses. In particular, the Unites States “objected to
the [CBD’s] treatment of intellectual property rights, the requirements to
share benefits and technology gained from biological resources, and even the [CBD’s]
limited requirements for domestic conservation.” While President Clinton did sign the CBD in
1992, the Senate refused to ratify it and efforts to do so have waned. As the largest holder of intellectual property, the United States’
failure to endorse the CBD presents a major setback in the attempt to create a
working framework for international transfer of technology. As a result, developing countries are
required to battle the opposing goals of a primary technology entity and the
corresponding legal framework, TRIPs.
Intellectual Property Regimes
Intellectual property laws are territorial in
that they “vary in nature and scope from one country to another.” Although a technology may be protected in one
country, its “intellectual property may not be recognized in another country.” While various international agreements
attempt to harmonize intellectual property protection, differences in national
systems still remain and produce conflicts among several industries. As a result, these differences have fueled
the debate over the appropriate approach to the biotechnology industry. Because the United States has been on the
forefront of promoting its patent regime on an international basis, an overview
of its laws pertaining to patenting genetically engineered organisms is
imperative. Subsequently, this paper will
discuss TRIPs as it pertains to genetic resources.
Patent Law Regarding Genetically-Engineered Micro-Organisms.
In the United States, patenting of
biotechnology draws its authority from the Constitution, federal statutes, and
the judiciary. The Constitution empowers
Congress “[t]o promote the Progress of Science and useful Arts, by securing for
limited Times to Authors and Inventors the exclusive Right to their respective
Writings and Discoveries.” To support this goal, Congress enacted the
U.S. Patent Act, which established protection for “[w]hoever invents or
discovers any new and useful process, machine, manufacture, or composition of
matter, or any new and useful improvement thereof….” The patent holder is given the exclusive
rights of use for a period of twenty years if the invention meets the
requirements of novelty, non-obviousness, and utility. In the landmark case of Diamond v. Chakrabarty, the U.S. Supreme Court held that the live,
genetically-engineered micro-organisms that broke down crude oil were
patentable subject matter under § 101 because it had “markedly different characteristics
from any found in nature” and had “the potential for significant utility.” This ruling paved the way for the
biotechnology industry because it made living matter patentable if the
invention “is the result of human intervention.”
However, novelty still remains a necessary
requirement for a patent and an individual cannot receive a patent in the U.S.
if “the invention was known or used by others in this country, or patented or
described in a printed publication in this or a foreign country, before the
invention thereof by the applicant for patent.” Therefore, because nature is free to
everyone, it may not be specifically reserved to anyone. Nevertheless, the U.S. Board of Patent
Appeals and Interferences read the decision to mean that a plant can in fact be
patentable if it meets the patent requirements. Subsequently, the U.S. Patent and Trademark
Office (PTO) issued over 1800 broad utility patents for germplasm.
The U.S. Plant Patent Act of 1930 also provides
a method of patenting plants. The Plant Patent Act provides that: “Whoever
invents or discovers and asexually reproduces any distinct and new variety of
plant, including cultivated sports, mutants, hybrids, and newly found
seedlings, other than a tuber propagated plant or a plant found in an
uncultivated state, may obtain a patent therefor….” The acceptance of discovery in place of
invention weakened the requirements for patents and expanded what can be
patented. Additionally, Congress enacted
the Plant Variety Protection Act of 1970, which provided protection for plant
varieties that are new, uniform, distinct, and stable discoveries. The “new” requirement of the Act means “the
plant variety was not previously sold and allows a one-year grace period for
U.S. use and longer grace periods regarding foreign use.” Although the Plant Patent Act and the Plant
Variety Protection Act provide for plant patents, most biotechnology
applications are pursued under utility patents rather than plant patents. After establishing this framework for
patenting plants, the United States has made significant efforts to promulgate
this view of property of genetically engineered living matter to the
international arena. These initiatives
eventually “laid the groundwork for international conventions for patent-like
rights over plants.”
on Trade-Related Aspects of Intellectual Property Rights
TRIPs contains minimum intellectual property standards
and requires each country to treat all foreigners as they would a domestic
rights holder. It also brings the focus of intellectual
property into the scope of trade. TRIPs is the primary source of law pertaining
to IPRs, and adherence to it is a basic membership requirement to the World
Trade Organization (WTO). Moreover, due to rising research costs and
the capital-intensive nature of technological innovation, IPRs have become a
market-leveraging instrument in global trade.
TRIPs primarily attempts to foster
international trade, open capital markets, and ensure that IPRs are adequately
protected. The objective as stated in Article 7: “[t]he
protection and enforcement of intellectual property rights should contribute to
the promotion of technological innovation and to the transfer and dissemination
of technology, to the mutual advantage of producers and users of technological
knowledge and in a manner conducive to social and economic welfare, and to a
balance of rights and obligations.” This primary objective accounts for
technology transfer, but TRIPs also contains several conditions that inhibit
the rise of developing nations. For
instance, TRIPs establishes IPRs as private rights, and strongly attempts to
“reduce distortions and impediments to international trade … taking into
account the need to promote effective and adequate protection of intellectual
However, TRIPs does recognize the needs of
developing countries. For instance, it acknowledges “the underlying public
policy objectives of national systems for the protection of intellectual
property, including developmental and technology objectives” and “the special
needs of the least-developed country Members in respect of maximum flexibility
in the domestic implementation of laws and regulations in order to enable them
to create a sound and viable technological base….” As a result, TRIPs does attempt to account
for both sides of the debate, but TRIPs is viewed as a major victory for developed countries,
as it is modeled on Western intellectual property laws. In order to focus in on this issue,
international patent laws will be discussed in detail.
Technology transfer in the biotechnology
industry primarily pertains to patents. Because
patents are territorial in nature “they are effective only in the territory
that created and granted the patent right.” Article 27 of TRIPs requires member countries
to make patent protection available “for any inventions, whether products or
processes, in all fields of technology, provided that they are new, involve an
inventive step and are capable of industrial application.” However, there are exceptions: “Members may
exclude from patentability inventions … which [are] necessary to protect ordre public [sic] or morality,
including to protect human, animal or plant life or health or to avoid serious
prejudice to the environment….” Additionally, Article 27(3) provides an
important clause for the field of biotechnology. Article 27(3) states that:
Members may also exclude from patentability: …
(b) plants and animals other than
micro-organisms, and essentially biological processes for the production of
plants or animals other than non-biological and microbiological processes. However, Members shall provide for the protection
of plant varieties either by patents or by an effective sui generis system or by any
This exception allows countries to effectively
eliminate patents for certain substances, but it is limited by the requirement
that the country must provide an effective sui
generis system. Therefore, as long as there is some level and
form of protection for plant varieties, there is no required international
standard. This allows for protection of a
genetically modified plant at the cellular level, “but not necessarily to the …
plant itself as long as there is an alternate patent or other system is
offered.” Consequently, in order to comply with WTO
membership regulations, countries that previously precluded patenting plants
and agricultural products are required to do so on some level.
Products that satisfy these requirements are
awarded a twenty-year monopoly over the making, using, offering for sale,
selling, importing, assigning, and/or transferring the product by succession. This framework provides the mechanism for establishing
minimum intellectual property regimes throughout the world. While there is much common ground between the
CBD and TRIPs, there are also differences because TRIPs fails to provide any
provisions for benefit-sharing from genetic resources or protection of
traditional knowledge. As a result,
social and legal issues have emerged as application of the two agreements has
produced varying results.
Application of Article 27 – The Novelty Requirement
Article 27 requires an invention to be “new.” Novelty is considered the most fundamental of
all the patent requirements. This is because “[g]ranting patents to old
inventions already in the public domain can stifle innovation and diminish the
incentives to invent.” However, two approaches for establishing
prior use have evolved in the context of geographic limitations. The European Patent Convention (EPC) places
no geographic limitation and thus allows proof of prior use of an invention
anywhere in the world, without publication. The second approach restricts novelty by
geography. In the United States, prior foreign knowledge
or foreign use of an invention does not defeat the novelty requirement in and
of itself. In order to defeat novelty, the prior
disclosure of the invention must be patented in a foreign country or printed in
a publication. This difference presents the ability to
obtain patents using foreign resources by simply picking a place of patent
Again, the case of the Neem Tree illustrates
the complexity of this issue. In an
effort to revoke Grace’s patent with the European Patent Office (EPO), it was
argued that the patent should be revoked because of lack of novelty. The EPC requires prior use to be “everything
made available to the public by means of a written or oral description, by use,
or in any other way, before the date of filing of the European patent
application.” Challengers of the EPO patent claimed that
the patent was invalid because local farmers had been using Neem seed oil
extract for the same purpose “as described in the [European] patent several
years before it was filed.” The EPO sided with the challengers of the
patent and revoked the patent.
Contrary to the EPO’s decision, the PTO issued U.S.
Patent No. 5,281,618 to Grace. While this can be seen as Western improvement
and commercialization of traditional biocultural knowledge, several
international organizations and countries sought to invalidate the patent. However, the PTO dismissed their claim. The opposition viewed the patent as a symbol
of Western “biopirates” who “take plants used by traditional cultures, or who
learn uses of these plants, invest in improving the traditional technologies,
and profit from their commercial development without compensating the traditional
people who provided key insights or essential materials.” Grace’s ability to obtain substantial profits
and protection without compensating the holders of the resources or knowledge
exemplifies the heart of this debate.
Consequently, the primary way to rectify this problem is at the
Comparison of CBD and TRIPs
While the objectives of the CBD and TRIPs are
seemingly unrelated, there are convergences and conflicts between the two. There is common ground between the two agreements
in that they both provide for proprietary mechanisms for genetic resources and
can be used to promote sustainable development.
The primary conflict between the two rests with the proprietary approaches to genetic resources and the
values that they represent. It is argued
that through the use of the patent, TRIPs privatizes genetic resources, whereas
the CBD aims to conserve resources and vests sovereignty over them in the countries
where they are located. Additionally, these issues have been propelled
by political forces, which have polarized the stakeholders. Industrial and biotechnology-skilled
countries are seeking access to the genetic resources of developing countries,
who in turn want technology transfers and a share in the benefits of the
resulting products. While there are similarities between the two
binding agreements, it is apparent that their objectives and the political
forces that propel them are at odds.
As long as a country’s laws on IPRs meet the
minimum standards set by TRIPs, it can be argued that there is no inherent
conflict between the CBD and TRIPs. This is primarily because, although TRIPs is
a global instrument, intellectual property rights are ultimately national
property grants. Both the CBD and TRIPs
emphasize the existence of property in genetic resources, albeit distinctive,
but not necessarily conflicting categories of property. It must be observed that “TRIPs does not
prohibit the … use of resources in their natural state and has not affected a
change of ownership thereof from state to private.” While some argue that the mere alteration of
the natural product is trivial, this argument is based on judicial construction
of the elements of patentability, and does not in and of itself substantiate
the argument that TRIPs destroyed the standard of ownership set by the CBD. The CBD itself offers a similar avenue for
privatization by allowing domestic legislation for the privatization of genetic
resources. As a result, the notions of propriety
differences are not necessarily at odds and individual country legislation is
capable of complying with both Agreements.
There is also potential for using intellectual
property protection, and the compensation it brings, to provide necessary
incentives to conserve biodiversity. If a source country maintains adequate
control over its indigenous knowledge and genetic resources, it can
legitimately assert ownership and demand compensation for its cultivation. It can then negotiate contracts with pharmaceutical
and biotechnology companies, as well as government agencies. The benefits derived from such contracts can
provide the proper incentive for biodiversity conservation and sustainable use
of resources. With the industrialized countries’ need for genetic
resources, developing countries can thus attempt to sustain these resources and
maintain the supply and create revenue.
In this sense, the IPRs are “supportive of and do not run counter to”
the CBD’s objectives. However, there are competing theories that
emphasize the conflicting nature of the two binding agreements.
The divergences between the two agreements
emphasize the differences in the underlying objectives and values rather than
the implicit functions of the agreements.
The differences between these agreements demonstrate the conflict
between “Western big business … couched in international trade and the
preexisting economic and cultural values of developing countries.” The CBD, which is the cornerstone for
international environmental interests, embraces the implicit value of nature
itself. It recognizes that “biological diversity is
about more than plants, animals and micro-organisms and their ecosystems—it is
about people and our need for food security, medicines, fresh air and water,
shelter, and a clean and healthy environment in which to live.” TRIPs takes a proprietary approach to the
biotechnology industry in that genetic material and life forms represent
commodities, whose ownership becomes exclusive and remunerative.
These underlying values became apparent in the language
included in and omitted from the agreements.
Essentially, TRIPs allows for intellectual property protection that can
be implemented in a manner that undermines the CBD’s objectives. “TRIPs neither requires sharing the benefits
of biotech products with the countries that supply the genetic resources, nor
gives recognition for the traditional knowledge of original communities as a
form to be patented.” In addition, it does not require any
disclosure of the origin of the resources for applicants to exercise their
rights. Ultimately, because “TRIPs is the latter
Agreement and the more detailed one for intellectual property protection,
Article 30 of the Vienna Convention on the Law of Treaties dictates that TRIPs
prevail.” These differences represent the political
forces that shaped the drafting of the agreements.
the realm of intellectual property, the biotechnology industry has been run
according to modern power relationships rather than actual science. The biotechnology industry has been able to
“privatize the benefits of bio-technologies that derive from genetic resources
while at the same time socializing the cost of access to those genetic
resources.” Developing countries are on the opposite side
of the spectrum; they wish to “privatize genetic resources [and] socialize
access to technologies.” Thus, both sides would like to privatize
solely the profits while socializing the costs. “For the North this would mean that the South
gives up its genetic resources but recognizes its IPRs; for the South this
would mean that the North gives up its IPRs but recognizes a Southern claim on
the use of its genetic resources.” The development of the industry without prior
legal mechanisms spawned these approaches.
division is grounded in past actions by the biotechnology industry and its
relation to developing countries.
Historically, “[d]eveloping countries were aggrieved that their genetic
resources which formed the basis of many biotechnological inventions were being
sold back to them at monopoly prices as a result of intellectual property
protection….” Developing countries saw Article 15 of the
CBD “as a means to assert control [over the] use and exchange” of their own
resources. Simultaneously, developed countries wanted
the genetic resources to be preserved in order to distill their unrealized
economic potential. As a result, biodiversity negotiations slated
a bargain in which the South “bears the obligation to conserve biodiversity [and
the North is obligated] to share in the costs and benefits of this
conservation.” The CBD provisions on the equitable sharing
of benefits and rewards demonstrate this balance.
However, the negotiation of TRIPs failed to
bridge this gap and solidified the polarized power differences. When determining to what extent intellectual
property protection should be made part of global trade, the biotechnology
industry stood strong. The Intellectual
Property Committee, which was formed to establish a consensus on the
incorporation of intellectual property in the General Agreement on Tariffs and
Trade (GATT), is comprised mainly of large industry interests, especially
software and biotechnology. Patent protection was the key concern for
developed countries during the negotiations of TRIPs and as a result, the CBD
was left as the primary tool that developing countries can use to assert
control over their resources, negotiate the exchange of benefits, and preserve
This interplay between the CBD and TRIPs has
invoked much uncertainty and opposition in the global biotechnology arena. The stakeholders have been forced to use the
tools that work in their favor to gain leverage over opposing sides, rather
than operate in a system in which every interest is represented. Harmonization of international patent systems
in an inclusive manner can help alleviate the inequalities associated with the
biotechnology industry and all of humankind will gain from the
improvements. Until this happens,
developed countries will continue to win out and exacerbate development
problems in the South.
In order to account for the interests at stake,
TRIPs must be amended to provide protection for developing countries and their
local communities and to provide a proper legal mechanism for the transfer of
technology. Three changes should be made
to Article 27 of TRIPs in order to adopt the development considerations of the
CBD and provide for the proper balance of benefit-sharing and IPRs. First, because TRIPs requires “protection of
plant varieties either by patents or by an effective sui generis system,” a clause that requires
proof of benefit sharing as a result of the patented plant varieties must be
enacted. Additionally, another
requirement is needed to identify the source of traditional knowledge (if used)
and provide the knowledge holders with a percentage of royalty payments. Finally, all geographic limitations to the
novelty requirement should be enumerated in Article 27. Taken together, these amendments can help
bridge the gap between the polarized stakeholders and produce inclusive
international patent requirements.
These changes can help developing countries
build their technological base and economies at the same time. Additionally, the changes provide an incentive
for developing countries to sustainably maintain biodiversity within their borders.
A system of property rights, incentive
structures, and resource access will still be maintained by the entity
producing the product. The producers’
only concessions will be to transfer technology and grant a percentage of their
royalties to the source of their information that allowed it to cut research
costs in the first place. This would
still produce significant profit for any commercially viable product and will
encourage developing countries to allow access to genetic resources and to strengthen
their patent systems. Also, by including
geographic limitations in Article 27, the patent system will reduce the ability
to forum shop and increase the likelihood that host traditions will be
maintained and be compensated. By
enacting these changes to the current TRIPs framework, the interests of the
North and the South are represented and the goals of technological innovation
and development are accounted for as well.
Consequently, future injustices like the Neem Tree will be reduced and
development in all facets of the biotechnology industry will be promoted.
Reid Johnson is a J.D. Candidate, May 2011, at Gonzaga University School of
 See Keith E. Maskus, Lessons
From Studying the International Economics of Intellectual Property Rights, 53
Vand. L. Rev. 2219, 2228-29
 See id. at 2230.
 See id. at 2228-2232.
 Walter Reid et al., A New Lease on Life, in Biodiversity
Prospecting: Using Genetic Resources for Sustainable Development 6-7 (1993).
 Debra M. Strauss, The Application of TRIPs to GMOs: Intellectual
Property Rights and Biotechnology, 45 Stan.
J. Int’l L. 287, 308 (2009).
 Id. at 7.
 Id. at 7.
 Id. at 7, 16-17.
 Id. at 15.
 Strauss, supra note 5, at 16.
 Id. at 16-17.
 See id. at 15-18.
 Ha-Joon Chang and Ilene Grabel, Strong IP Regime Not in Interest of
Developing Countries, Third World
Network, http://www.twnside.org.sg/title2/twr171k.htm (last visited Oct. 27, 2010); see also Maskus, supra note 1, at 2238 (noting the increased challenges for
developing countries due to IRPs).
 See The World Factbook, Central Intelligence Agency, https://www.cia.gov/library/publications/the-world-factbook/fields/print_2195.html (last visited Oct. 27, 2010)
(providing the small GDP of, inter alia,
sixty-eight developing countries); see
also Reid et al, supra note 4, at
16 (noting that “a commercially marketable drug requires an estimated $231
million and 12 years on average to develop”).
 See Reid et al., supra
note 4, at 16.
 Padmashree Gehl
Sampath, Regulating Bioprospecting:
Institutions for Drug Research, Access and Benefit-Sharing 3-4 (2005) (discussing the CBD and
 Id. at 4.
 See id. at 17 (discussing the use of patents to protect companies’
 Id. at 5
 Megan Dunagan, Bioprospection Versus Biopiracy and the
United States Versus Brazil: Attempts at Creating an Intellectual Property
System Applicable Worldwide When Differing Views are Worlds Apart – and
Irreconcilable?, 15 L. & Bus.
Rev. Am. 603, 621-22 (2009) (referring to a British explorer who located
and removed rubber seeds from Brazil and produced rubber that was sold on the
 Sampath, supra note 16, at 17.
 Dunagan, supra note 22, at 621-22 (using Brazil as an example of a country
that was subject to biopiracy).
 Sampath, supra note 16, at 5.
 Id. at 43.
 See generally Dr. John Mugabe, Intellectual
Property Protection and Traditional Knowledge: an Exploration in International
Policy Disclosure, World Intellectual
Prop. Org. (1999), http://www.wipo.int/tk/en/hr/paneldiscussion/papers/pdf/mugabe.pdf (discussing how intellectual
property law does not adequately protect traditional knowledge and innovations
of indigenous people).
 See generally Ikechi Mgbeoji, Global
Biopiracy: Patents, Plants, and Indigenous Knowledge 34 (2006) (noting
that the when the United States was a developing country it “refused to respect
international intellectual property rights [in order to] further its social and
 David Hunter et al., International Environmental Law and Policy
1043 (3rd ed. 2007).
 See id.
 Hunter et al., supra note 33, at 1043.
 Convention on Biological
Diversity Preamble, June 5, 1992, 31 I.L.M 818 (1992) [hereinafter CBD].
 Sampath, supra note 16, at 35.
 Id. at 38.
 Hunter et al., supra note 33, at 1024-25.
 CBD, supra note 41, at art. 1.
 See Sampath, supra note
16, at 38.
 CBD, supra note 41, at art. 15.
 Sampath, supra note 16, at 38.
 CBD, supra note 41, at art. 16(1).
 Id. at art. 16(2).
 Id. at art. 16(5).
 Id. at art. 19(1).
 Hunter et al., supra note 33, at 1022.
 Justice Department Announces New Intellectual Property Task Force as
Part of Broad IP Enforcement Initiative, U.S.
Department of Justice (Feb. 12, 2010), http://www.justice.gov/opa/pr/2010/February/10-ag-137.html.
 Mugabe, supra note 31, at 10.
 U.S. Const. art. I, § 8, cl. 8.
 U.S. Patent Act of 1952, 35
U.S.C. § 101 (2006).
 Id. at §§ 101-103, 154.
v. Chakrabarty, 447
U.S. 303, 310 (1980).
 Strauss, supra note 5, at 292.
 35 U.S.C. § 102(a) (2006).
 Diamond, supra note 64, at
 Ex Parte Hibberd, 227 U.S.P.Q. 443, available at 1985 Pat. App. LEXIS 11, *3-*5 (B.P.A.I Sept. 18,
 Haley Stein, Intellectual Property and Genetically
Modified Seeds: the United States, Trade, and the Developing World, 2 Nw. J. Tech. & Intell. Prop. 160,
 U.S. Plant Patent Act of 1930,
35 U.S.C. § 161 (2006).
 Plant Variety Protection Act of
1970, 7 U.S.C. § 2402 (2006).
 Dunagan, supra note 22, at 608; see
generally 7 U.S.C. § 2402 (2006).
 Lara E. Ewens, Note, Seed Wars: Biotechnology, Intellectual Property,
and the Quest for High Yield Seeds, 23
B.C. Int’l & Comp. L. Rev. 285, 292-293 (2000).
 Mgbeoji, supra note 32, at 125.
 See Daniel C.K. Chow et al., International
Intellectual Property: Problems, Cases, and Materials58 (2006).
 See Agreement on Trade-Related Aspects
of Intellectual Property Rights, art. 1, Apr. 15, 1994, 33 I.L.M 1197 (1994)
[hereinafter TRIPs]; see also Chow et
al., supra note 76, at 58.
 Sampath, supra note 16, at 40.
 TRIPs, supra note 78, at preamble.
 Id. at art. 7.
 Id. at preamble.
 See Chow et al., supra
note 76, at 57-58.
 Id. at 271
 TRIPs, supra note 78, at art. 27(1).
 Id. at art. 27(2).
 A sui generis system means a system of its own. Black’s Law Dictionary 845 (8th ed.
 TRIPs, supra note 78, at art. 27(3)(b).
 Id. at art. 27(3).
 Strauss, supra note 5, at 306-07.
 See id. at 306.
 TRIPs, supra note 78, at arts. 28, 33.
 TRIPs, supra note 78, at art. 27(1).
 Chow et al., supra note 76, at 371.
See Chow et al.,
supra note 76, at 371.
 35 U.S.C. § 102(a) (2006).
 See Mgbeoji, supra note
32, at 147-148.
 European Patent Convention, art.
54(2), Oct. 5. 1973, 1160 U.N.T.S. 231, available
at 1973 WL 147553 (2007).
 Neem Tree Patent Revoked, BBC
News (May, 11, 2000), http://news.bbc.co.uk/2/hi/science/nature/745028.stm.
 Craig Jacoby & Charles
Weiss, Recognizing Property Rights In
Traditional Biocultural Contribution, 16 Stan.
Envtl. L J. 74, 75-76 (1997).
 Id. at 76.
 Remigius N. Nwabueze, Ethnopharmacology, Patents and the Politics
of Plants’ Genetic Resources, 11 Cardozo
J Int’l & Comp. L. 585, 604 (2003) (analyzing the alleged contradiction
between the CBD and TRIPs).
 Strauss, supra note 5, at 308.
 See Mgbeoji, supra note 32,
 Nwabueze, supra note 109, at 605.
 See Hunter et al., supra
note 33, at 1027.
 See id. at 1027, 1033, 1041.
See id. at 1027,
 Id. at 1050.
 Strauss, supra note 5, at 305.
 Id. at 308.
 Strauss, supra note 5, at 308.
 Id. at 309.
 Sampath, supra note 16, at45.
 Mgbeoji, supra note 32, at 99.
 Sampath, supra note 16, at 45.
 Id. at 46
 See generally id. at 39 (discussing the CBD provisions on benefit
 Sampath, supra note 16, at 46.
 Id.; see also Peter Drahos,
Global Property Rights in Information:
The Story of TRIPs at the GATT,
Prometheus: Critical Studies in
Innovation 6, 12 (1995), available
(explaining that the Intellectual Property Committee that was formed to
generate consensus for the United States’ plan to include intellectual property
into GATT in Europe, Canada, and Japan consisted of Bristol-Myers, Johnson and
Johnson, Merck, Pfizer, Monsanto, General Motors, IBM, Hewlett-Packard, General
Electric, Du Pont, FMC Corporation, Rockwell International, and Warner
Communications). The GATT is an
agreement covering international trade in goods. GATT/WTO,
Duke University School of Law, http://www.law.duke.edu/lib/researchguides/pdf/gatt.pdf.
 See Sampath, supra note 16,
 TRIPs, supra note 78, at art. 27(3)(b).