The Biodiversity Convention and Intellectual Property Rights: A Study in Sustainable Development

1. Pearce D.W. , “Economics, Equity, and Sustainable Development”, Futures, Vol. 20 (1988:6), 593–605, at 598, cited in Hans-Ragen Harborth, “The Debate about Sustainable Development: Starting Point for an Environment-Oriented International Development Policy?”, 44 Economics (1991), pp. 7–31 at 7.

2. World Commission on Environment and Development, Our Common Future (Oxford and New York, 1987), p. xv.

3. Goodland R. Ledec C. , Neoclassical Economics and Principles of Sustainable Development, Office of the Environmental and Scientific Affairs, The World Bank (Washington, DC, 1986), quoted in E.B. Barbies, “The Concept of Sustainable Economic Development”, Environmental Conservation, Vol. 14 (2: 1987), pp. 101–110, at 105.

4. For the text of the Convention, see ILM 818 (1992). The Convention came into force on December 29, 1993.

5. In simple terms, biotechnology is understood to be a technology that uses or causes, organic changes in animals, plants, micro-organism and any biological material, and also changes in the inorganic material by biological means. It is defined as the “application of scientific and engineering principles to the processing of materials by biological agents to provide goods and services”, see Bull, Holt and Lily, Biotechnology: International Trends and Perspectives (OECD: 1992), p. 21, cited by Beler and Straus in Beier, Cresp. Straus, Biotechnology and Patent Protection: An International Review (OECD: 1985), p. 16.

6. rDNA technology modifies the genetic code of living organisms, i.e., micro-organisms, plants and animals and by so doing, new species of plants and animals are created. The end result is a genetically modified or manipulated organism (GMO). This process is much more advanced and faster than the traditional techniques of breeding plants or animals. See, M. Roberts, “A Consumer View of Biotechnology”, 4 Consumer Policy Review, P. 99 (April 1994), see also, Bier, Crespi, Straus, Op. cit. 5, at 22 et seq.

7. The United States signed the Convention on 4 June 1993 by the new administration of President Clinton, but has not yet been ratified.

8. See, the Policy Makers' Guide: Global Biodiversity Strategy”, jointly edited by the World Resources Institute (WRI), the World Conservation Union (IUCN), and the United Nations Environment Programme (UNEP), (1992).

9. These objections have been met to some extent by an Internationally accepted procedure incorporated in the Budapest Treaty on the International Recognition of the Deposit of Micro-Organisms, 1977.

10. In developed countries, particularly in the US, GMOs was granted patent in 1980, see. In re Diamond v. Chakraborty (16 June 1980). 206 USPQ 193. The US Patent Office granted first patent on transgenic animal to Leder et al. on April 12, 1988 (No. 4,736,966). The European patent Office (EPO) granted patent in the Harvard Onco-Mouse case (April 3, 1992), see the Technical Board of Appeal of the EPO's decision, 1990, OJEPO 476.

11. See, GATT Doc. MTN/FA II-AIC of 15 Dec. 1993.

12. The Convention currently has 24 State parties. See WIPO, Inter-Governmental Organisations 103 (Feb. 1994).

13. The European Union (EU) by its Council Regulation No. 2100/94 has adopted a community Plant Variety Right based on the 1991 UPOV Act, which came into force on 27 April 1995, see EUOJ No. L-227/1, 1 Sept. 1994. With this, it is hoped that the 1991 Act will come into force soon.

14. For instance, in Brazil, internationally developed new high yielding varieties led to the devastation of crop in 1972 when it was exposed to a disease; and in 1975, Indonesian farmers lost 500,000 acres of rice to leaf-hopper insects for similar reason, see, UNCTC, Transnational Cooperations in Biotechnology, DOC. St / CTC / 61 (UN, 1988), p. 82.

15. See, Angus J, Wells, “Patenting New Life Forms: An Ecological Perspective”, 16 EIPP 111 at 116 (1994).

16. See, Stephen Crespi, “The EC Directive on Biotechnology Patents: An Evaluation of the Ethical, Social and Political Objectives”, 4 IP in Business (Jan-Feb., 1992), p. 17 at 18.

17. See, Joseph Straus, “The Rio Biodiversity Convention and Intellectual Property”, 24 IIC (5: 1993), pp. 602–615, at 609–610.

18. See, Geoff Tansly, “World Bank accused of attempted raid on gene reserves”, Financial Times, June 21, 1994, p. 28.

19. Press release of US Patent and Trademark Office (USPTO), 22 June 1992, “Questions and Answers — US Position on the Convention on Biotechnological Diversity”. See also the report, “PTO Biotech Group Explains Objection to Earth's Biodiversity Treaty”.

20. See, Patent World, Issue 53 (June 1993), p. 18.

21. Quoted by Straus, op. cit. 17, at p. 608.

22. Ibid. at p. 609, citing the Commission on Intellectual and Industrial Property of the International Chamber of Commerce, IIC Doc. No. 450/725: 210/417 of Oct. 12, 1992.

23. See, UNCTAD, “The Role of the Patent System in the Transfer of Technology to Developing Countries”, UN Doc. TD / B / C 6 / 16, Dec. 1975.

24. For example, India is among the 12 mega diversity areas, with over 45,000 species of plants, with reference to genetic wealth, see, M.S. Swaminathan, “A Plant Variety Protection System for India”, in V. Ramanchandriah (ed.), GATT Accord: India's Strategic Response (Commonwealth Publishers, New Delhi, 1994), pp. 175–188 at 182–183.

25. See, Art. 2 of the TRIPs agreement.

26. Stone, “The Biodiversity Treaty: Pandora's Box or Fair Deal?” 256 Science 1624 (1992), Report in 256 Science 1142 (1993), quoted by Straus, op. cit. 17 at 604–605.

27. See, for more on this point, M.S. Swaminathan, “Draft Plant Varieties Recognition and Protection Act: Rationale and Structure” in Ramanchandriah, op.cit. 24, pp. 189–243.

28. AGRO Food Industry Hi-tech, July-August 1992, p. 23.