Recently, a group of about 100 countries including India, Brazil, EU and Switzerland has submitted a non-paper to the trade negotiations committee on the WTO proposing that three intellectual property issues, including amendment of TRIPS Agreement related to biodiversity, extension of the higher level of protection for geographical indications (GIs) currently only required for wines and spirits, and the issue of creating a multilateral register for GIs of wines and spirits, should be part of the horizontal process.

Such a step form these countries is being considered appreciable because if they are successful in implementing the steps for protection of bio-piracy and GI through amendment in TRIPS, it would enable domestic institutional mechanisms to ensure sharing of benefits of such commercial utilization by the patent holders with the indigenous communities whose TK has been used. These efforts are certainly of great importance as it would check the blatant bio-piracy being carried out by corporations. Bio-piracy generally is an individual’s attempt to patent properties of items known as traditional knowledge by the indigenous peoples for generations.

Bio-piracy has emerged as a term to describe the ways that corporations claim ownership of, free ride on, or otherwise take unfair advantage of the genetic resources and traditional knowledge and technologies of countries rich in bio-diversity. It is alleged by these nations that their biological, scientific and cultural assets are being “pirated” by these corporations.

In the past, there have been several cases of bio-piracy such as controversy on neem, turmeric, basmati patenting. The grant of patents on non-patentable knowledge (related to traditional medicines), which is either based on what is already a part of the traditional knowledge of the indigenous community, or a minor variation thereof, has been causing a great concern to the nations rich in biological resources. The formulations used for the treatment of human ailments from traditional knowledge are time-tested since they have been in practice for centuries. The absence of effective international regime to protect the interest of holders of such valuable biodiversity and traditional knowledge provides an easy opportunity for interlopers for getting patents on these therapeutic formulations derived from traditional medicine systems.

There is a need to provide appropriate legal and institutional means for recognizing the rights of communities on their TK based biological resources at the international level. This can be done by harmonizing the different approaches of the Convention on Biological Diversity (CBD) on the one hand, and the TRIPS Agreement on the other.

The CBD envisages that the benefits accruing from commercial use of TK have to be shared with the people responsible for creating, refining and using this knowledge. Article 8(j) of the CBD provides for respecting, protecting and rewarding the Knowledge, Innovations and Practices (KIP) of local communities. Efforts of India are appreciable in this regard as the provision for discloser of the source and geographical origin of the biological material in the specification has been provided in the proviso to Subsection 4 of Section 10 of the Patents Act, 1970, as amended by the Patent (Amendment) Act, 2005. In the absence of clear provisions in TRIPS Agreement providing for a mutually supportive relationship of that Agreement with Members’ obligations under the CBD, implementation of the TRIPS Agreement may allow for acts of bio-piracy and thus result in systemic conflicts with the Convention. With a view to avoiding conflicts in the implementation of TRIPS Agreement, an amendment of the Agreement to accommodate some essential elements of the CBD is considered necessary. India has proposed, in this context, that patent applicants should be required to disclose the source of origin of the biological material utilized in their invention under the TRIPS Agreement and should also be required to obtain prior informed consent (PIC) of the country of origin. India along with Brazil, Peru, Venezuela, Thailand, Indonesia, Philippines, etc. had submitted a joint paper in June 2002 in the WTO proposing that the TRIPS Agreement should be amended in order to provide that Members shall require that an applicant for a patent relating to biological materials or to traditional knowledge shall provide, as a condition to acquiring patent rights the following:

1. Disclosure of the source and country of origin of the biological resources and of the traditional knowledge used in the invention;



2. Evidence of prior informed consent through approval of authorities under the relevant national regimes; and



3. Evidence of fair and equitable benefit sharing under the national regime of the country of origin.

India and other supporting countries are of the view that the amendment is of importance as it would check the blatant bio-piracy.