IPR

Conflict Resolution between the Protection of Biodiversity and Biotechnology Patents

calendar27 Jun, 2023
timeReading Time: 7 Minutes
Conflict Resolution between the Protection of Biodiversity and Biotechnology Patents

The progress made in the area of intellectual property rights (IPRs) is expected to have an impact on the biotechnology and biodiversity sectors. This has given rise to concerns regarding protecting plant varieties and public health. Biotechnology research has mainly focused on exploring diverse genetic resources, which has led to a growing debate on the relationship between access to biological and genetic components, agriculture systems, food security, and rising poverty levels worldwide. The use of IPRs for plant varieties and the involvement of biotechnology can have far-reaching consequences. The idea of using intellectual property rights as a means of sharing the benefits derived from the use of genetic resources has been discussed in various Biodiversity Conventions.

Impact of IPR on Development

The importance of safeguarding intellectual property rights (IPRs) to reduce poverty and promote growth in developing nations is under scrutiny. Researchers are investigating how the IPR regimes of these countries affect their access to innovations. However, there is a lack of information and data on developing nations, resulting in conflicting trends and conclusions about the relationship between IPRs and development.

The UK Commission on IPR released a report in 2002 that examined the effects of IPR on development. The report found that the ownership of IPR may impact trade flows in developing countries, especially for industries like chemicals and medicines that are sensitive to IPR. However, the data on this is inconclusive. The report also noted no significant evidence to suggest a connection between foreign investment and IPR ownership. Most evidence on the importance of IPR in trade and investment comes from technologically advanced emerging countries. The report suggests that while there may be some benefits to IPR for developing countries, these are unlikely to outweigh the disadvantages in the near to medium term, especially for less advanced nations.

The commission sees IPR not as an end goal but rather as a means to promote innovation and enhance the competitiveness of developing nations.

Biodiversity and Intellectual Property Rights

Intellectual property rights (IPR) serves two purposes regarding Protection of Biodiversity. Firstly, it safeguards products made with specific raw materials in the biodiversity system, such as expensive furniture made with Kashmiri wood from a particular species of teak tree in the Kashmir region.

The second benefit is that it protects items created directly from traditional knowledge, for instance, the application of Malabar Pepper for medicinal purposes. The geographical indications system established by intellectual property law safeguards the latter.

Today, there is an increasing demand for herbal and organic products in urban societies worldwide, indicating the importance of products derived from biodiversity beyond rural, tribal, and indigenous spheres. The agricultural sector’s most significant impact on biodiversity is through its derivatives in enhancing soil fertility, preventing crop failures, balancing the nutritional value of crops, and ensuring food security.

The expansion of commercial agriculture research and development has led to the creation and use of new plant varieties. Intellectual property laws give a practical solution to prevent genetic erosion and conserve these novel plant varieties.

Innovation is not driven solely by financial gain. Other factors drive innovation, such as social recognition, reform, goodwill, and the need to survive. For instance, Asian farmers developed hundreds of thousands of rice varieties from a single species to meet various ecological and social needs. The spirit of social welfare inspires traditional healers, farmers, and others to innovate to meet societal needs. Intellectual property protection incentivizes these innovators to work within the biodiversity system, making recognizing and safeguarding their work easier.

In the past, India has been firm in its opposition to patent rights that restrict the ability to developing countries to access and utilize advanced technologies or that relate to areas such as food, health, or medical treatment (such as pharmaceuticals and agricultural chemicals). However, India became a signatory to TRIPS and entered into agreements with WTO, which necessitated the creation of a law to regulate intellectual property rights (IPR) concerning biodiversity. Subsequently, India implemented the Protection of Plant Varieties and Farmers Rights Act, 2001 to address this requirement.

Protection of the Biodiversity Resources

The Biological Diversity Act of 2002[1] was created to Protection of Biodiversity, encourage sustainable use of biological resources and their derived products, and ensure fair and equitable distribution of the benefits derived from their use. This legislation aims to preserve traditional knowledge and has a forward-thinking vision. However, the current implementation strategy for this act, which focuses primarily on documenting knowledge to create Plant Breeders’ Rights (PBR), needs significant improvement.

The Protection of Plant Varieties and Farmers’ Rights Act of 2001 recognizes farmers as cultivators and stewards of the agricultural gene pool and as breeders who have successfully developed many varieties. It has the potential to safeguard biodiversity in the agricultural sector. According to section 14(c) of the Act, farmers must register their varieties, or a farmer’s association or an authorized person may do so on their behalf. The Act also requires that the origin of the biological source used in the invention be declared at the start of the patent filing process in section 10(4)(d)(ii). It must be approved by the National Biodiversity Authority (NBA). If the biological source of the invention is obtained from a foreign country, it must also be declared to avoid potential issues in the future.

This law recognizes traditional customs such as planting, harvesting, and sharing farm produce, which are still vital to modern practices such as organic farming and plantations with abundant resources. Implementing the provisions of these acts could lead to significant changes for local communities and traditional knowledge holders. However, there is a need for a better implementation strategy to achieve the desired outcomes and protect biodiversity.

IPR and Biotechnology

The Biological Diversity Act of 2002 (hereafter referred to as the BD Act) establishes a structure for access to genetic resources and benefit sharing. Section 6 of the BD Act, which went into effect on July 1, 2004, states that gaining IPRs from using biological resources in India requires the approval of the National Biodiversity Authority (hereafter referred to as NBA).

Over the years, patenting biological forms has been a contentious issue in India. To address the challenges of patenting living organisms, the Indian Patent Office has developed several initiatives. India’s position on patenting life forms has evolved, with the country initially opposed to it and even demanding a review of TRIPS Article 27.3, which allows for excluding plants and animals from patenting but includes microorganisms. However, as a member of TRIPS, India had to comply with the provision. It amended the Patent Act, 1970, by adding section 3(j), which allows for patenting microorganisms and not just the methods that produce them. Despite this, there is still confusion about what constitutes microorganisms. The issue of genetically modified organisms (GMOs) is clear, as they require human intervention to develop and do not occur naturally.

Biotech companies invest significant money in research and development to create new and improved microorganisms. These companies take significant risks, and it is admirable that they are rewarded for their efforts. Genetic engineering and biotechnology are crucial to a country’s economic development.

The Biological Diversity Act of 2002 (hereafter referred to as the BD Act) establishes a structure for access to genetic resources and benefit sharing. Section 6 of the BD Act, which went into effect on July 1, 2004, states that gaining IPRs from using biological resources in India requires the approval of the National Biodiversity Authority (hereafter referred to as NBA).

It is regarded as a life science that encompasses the application of innovation, pharmaceuticals, and other important items. The phrase now refers to hereditary construction, tissue culture, and cell advancement. The concept encompasses a wide range of strategies for modifying live beings for human objectives – returning to creature training, development, and “upgrades” to these through reproduction strategies that use forgery and hybridization.

The ability to isolate and escalate a specific quality from the immense number in a living being’s genome (the finished arrangement of qualities or hereditary material existing in a cell or life form) for learning fundamental standard techniques. Without a doubt, the proximity of complete genome movements for an increasing number of living things promises to change the way these sciences – and the endeavors subject to them – operate.

The Impacts of Biotechnology on Biodiversity

DBT has provided the legislature’s innovation strategy and the Vision Statement on Biotechnology to provide a system and crucial direction to various divisions to accelerate the speed of biotechnology advancement in developing countries. This agreement also intends to chart the course of progress in areas such as farming and nourishment biotechnology, modern biotechnology, restorative and therapeutic drug, demonstrative biotechnology, bio-building, nanotechnology, clinical biotechnology, condition and intellectual property law, copyright law, trademark law, design law, and so on.

Genetic engineering, or genetic modification, involves using biotechnology to manipulate an organism’s genome directly. Agriculture is a sector that has experienced significant changes due to genetic engineering. The crops that are genetically engineered are commonly called “Transgenic crops.” These crops have been developed to be resilient against herbicides and pesticides. They are also designed to withstand environmental factors such as weather conditions and have improved nutritional value.

Despite all these benefits, there is some adverse impacts as well:

  1. Ecological Balance: The use of biotechnology can disrupt the ecological balance and threaten biodiversity, despite claims that it contributes to diversity by creating new species. This is because uncontrolled genetic modification can interfere with natural interactions and lead to larger-scale problems.
  2. Genetic Pollution: Genetic pollution concerns environmental scientists because it involves the unregulated flow of genes into natural populations, resulting in a depletion of pure genetic resources.
  3. Monoculture: Transgenic crops contribute to monoculture’s prevalence in industrialized agriculture, where large fields are planted with a single high-yielding variety. This genetic uniformity can increase susceptibility to pests and diseases, which can spread quickly throughout the crop.
  4. Genetic Erosion: Monoculture also leads to genetic erosion, where the already small gene pool of endangered species is further reduced. Although transgenic plants can be high yielding, their uniformity eliminates biodiversity faster by replacing natural seeds with a small number of transgenic seeds with unique genetic traits.

Challenges to Biodiversity

Due to the increasing demand for products derived from biodiversity resources, there is an opportunity for local communities to benefit from sharing their knowledge and resources. These communities have long been the guardians of biodiversity resources; improving them will ultimately benefit biodiversity. Unfortunately, these communities have often been left out of the commercialization of their knowledge and expertise, with most profits going to corporations. International safeguards, such as the Nagoya Protocol and Convention on Biological Diversity, have been implemented to ensure that businesses that exploit traditional knowledge and natural resources do so reasonably and distribute benefits to local communities. However, these agreements only apply to resources gathered after implementation and do not address existing traditional knowledge in the public domain.

It is more advantageous for local communities to independently sell their biocultural products and pursue a full “benefit capture” strategy rather than relying on multinational corporations for potential benefits. This approach is more time-consuming and labor-intensive, but it maximizes the protection of biodiversity resources and ensures that local communities benefit from development and profit-sharing. By doing so, local communities can achieve economic growth and continue to serve as stewards of biodiversity resources.

Conclusion

In summary, while plant biotechnology has the potential to address global food shortages, genetically modified crops can be harmful to biodiversity. They limit gene expression to only what is needed, disrupting natural genetic structures and ecological balance. The relationship between genetically engineered crops and biodiversity is currently under investigation. In addition, other important issues like the conservation of biodiversity and the ethical considerations surrounding the protection and commercialization of biotechnological inventions and Protection of Biodiversity have been discussed in various forums, including the World Trade Organization (WTO), Convention on Biological Diversity (CBD), and World Health Organization (WHO).

Read Our Article: The Role Of IPR In The Protection Of Biodiversity

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