International Dimension of Protection of TK

Presentation by India

Structure of the Presentation

Indian experience Need for international recognition of

systems of protection of TK. Elements of international instrument Role of inter-governmental bodies

Indian Experience

Issues: Bio-Piracy - Misappropriation Benefit sharing and Prior Informed

Consent Recognition and Protection of TK. Commercialisation of TK

Bio-piracy

Bad patents instances of patenting of neem, turmeric,

bitter gourd, brinjal, etc. Expensive legal challenges Search for a mis-appropriation regime –

Documenting TK Prohibiting patents Disclosure of the source of TK

Indian initiatives

Documentation of TK Traditional knowledge Digital Library People’s Biodiversity Register

Disclosure requirement

Provision of mandatory disclosure in patent application of source of biological material used in the invention in Patents (2nd Amendment) Bill.

Prior Informed Consent & Benefit Sharing

Indian Bio-Diversity Bill Provision for prior approval of National

Biodiversity Authority(NBA) before access

NBA to impose terms and conditions for equitable benefit sharing.

Prior approval of NBA before seeking any IPR in India or outside.

Experience in Other countries

Provisions in existing or proposed laws in- Brazil, Costa Rica, Peru, Philippines,

Andean Community (Bolivia, Colombia, Ecuador, Peru and Venezuela), Model OAU Law, etc.

Provisions for PIC, benefit sharing, systems for contract and MTA, some restrictions on IPRs if PIC and benefit sharing is not ensured, respect for customary laws, etc.

Though certain elements are common but each national regime is different from others

Inadequacies of National Systems

Patents being sought in other countries on TK – bad patents.

Patents being sought in other countries for inventions utilising TK without PIC and benefit sharing.

Commercialisation of TK in other countries without PIC and benefit sharing.

Issues relating to protection of TK through alternative system.

Elements of International Instrument

Local protection to the rights of TK holders through national level sui generis regimes.

Effective enforcement of national systems through positive comity among national authorities of various countries

Contd….

Elements of International Instrument

A procedure whereby use of TK particularly for IPR is allowed only after obtaining PIC of country of origin.

International instrument that recognises such national level systems.

Such instrument should prevent bio-piracy and ensure that national level benefit sharing mechanisms and laws are respected worldwide.

Role of Inter-governmental Organisations

WTO-Doha Mandate Harmonization of provisions of

TRIPS and CBD approaches Issue of mandatory disclosure

provision Mandatory PIC Countries may protect TK through

sui generis system – Article 27.3 (b).

Role of Inter-Governmental Bodies

WIPO Development of a sui generis systems

to protect TK. Work on TK database CBD Guidelines for access and benefit

sharing Emphasis on benefit sharing

mechanisms

Way forward for Developing Countries

Development of international instrument in an inter-governmantal fora Clear road-map required By the developing country’s coalition –

Constitution of an Expert Committee Coalition effort required in

WTO, WIPO, CBD, etc.