Paying for bio-resources

The developing countries, including India, which have proposed an amendment to the accord on trade-related intellectual property rights (TRIPs), to incorporate a bio-piracy prevention clause, can draw satisfaction from the endorsement that their move is receiving from different quarters, though final acceptance is not yet a given. The latest to back the move at the World Trade Organisation (WTO) Council's recent meeting in Geneva was the group of least developed countries. This support, of course, is not without reason. Like India, many of these countries are well endowed with bio-diversity and traditional knowledge about the gainful uses of herbs and other natural bio-resources, which are now being sought out by the big international pharmaceutical and seed companies for commercial exploitation. India, of course, has been a major victim of bio-plunder, requiring it to fight numerous legal battles to get patents revoked on products derived from Indian herbs and using the recipes outlined in its ancient texts.

To avoid such international litigation in future, the proposed amendment seeks to make it mandatory disclosing the source (provider) and the country of origin of a biological resource or its associated traditional knowledge used for inventions put forth for patent protection.

What is even more significant is the stipulation that patent seekers will have to reveal the way they proposed to share the benefits arising from the commercial use of these resources with the countries or the communities to which they originally belonged. Though some countries, especially the front-runners in tapping such biological and intellectual wealth, have some reservations about this move, the vast majority of WTO member countries seems favourably inclined. It is no wonder then that even a country like China, which is both a major holder and user of bio-diversity and traditional knowledge, has (even if belatedly) chosen to join those who moved the amendment.

The biggest gain that the patent-poor but conventional wisdom-rich nations hope to get from this amendment, apart from curbing bio-piracy, is to turn the global intellectual property protection regime (read patent regime) to their advantage. Besides, they would be in a position to bank on the WTO's dispute settlement mechanism in the case of any breach of the disclosure provision as also of fair and equitable benefit-sharing. Though some of the existing global protocols have similar provisions aimed at thwarting bio-piracy by bestowing sovereign rights to countries over their native bio-resources, such piracy becomes difficult to establish in the absence of proper disclosure provisions.

The financial gains from the WTO initiative could be substantial for the countries rich in bio-diversity. Some idea of this can be had from the estimates made by the UN Food and Agriculture Organisation (FAO) way back in 1998, which showed that if the commercial seed industry alone were to share even 1 per cent of its annual seed sales with the providers of biological resources, the beneficiary countries would get about $150 million (Rs 600 crore) per year. Obviously, this figure would be far higher now and would swell even further if the pharmaceutical, notably nutraceutical, industry is included in the reckoning. It is chiefly for this reason that sundry pharmaceutical industry bodies are averse to this move. They also fear that patenting procedures would become cumbersome, more time-consuming, as well as more costly. India as a potential gainer from the move needs to do all it can to get this amendment of TRIPs ratified at the WTO Council.