IPR and Bioprospecting in the Context of Post-CBD Developments

The relationship between the Convention on Biological Diversity (CBD) and the TRIPS regime is complex and sometimes contentious. The central point of this conflict is the treatment of intellectual property rights (IPRs) related to genetic resources. The CBD recognizes the importance of IPRs. But at the same time seeks to ensure they do not undermine the rights of countries that provide genetic resources. On the other hand, the TRIPS-based IP Regime strongly emphasizes protecting IPRs and has been criticized for not addressing the concerns of developing countries in this area. Many efforts have been made to reconcile the CBD and TRIPS regimes, which include establishing the WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore. However, progress has been slow, and the approaches still differ significantly. Digital Sequence Information (DSI), which refers to the dematerialized form of genetic resources, is a new entrant to this discord. The 15th Conference of Parties (COP 15) to the CBD decided to treat DSI as part of the subject matter regulated under CBD. This means that any research or innovation activities involving DSI must comply with the Access and Benefit Sharing (ABS) framework established by the Convention. The ABS framework requires that the benefits of research and innovation activities that use genetic resources be shared fairly and equitably with the countries and communities that provide those resources. The impact of the COP 15 decision on regional or national IP regimes is still unclear. However, it is possible that the decision could have implications for the way in which DSI is protected under IP laws in some countries. It may also lead to greater scrutiny of DSI-based patent applications to ensure they do not violate the ABS framework. Some countries have been very proactive in challenging patent applications on the grounds of non-compliance with ABS requirements. The decision on DSI can also result in an escalation of such objections. This paper will examine the steps taken at national and regional levels for implementing the COP 15 decision and the possible intersections it can create with the IP regime.