developing countries & sustainable development srividhya ragavan professor of law university of...
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Developing Countries & Sustainable Development
Srividhya RagavanProfessor of Law
University of Oklahoma Law Center
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Move towards Sustainable Development Development using the trade and
intellectual property regime
Sustainable Development regime in the CBD
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The presentation posits that CBD can be an effective tool for poorer countries to maximize the benefits from the trade and intellectual property agenda of the WTO.
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The Trade and IP Agenda…
Article 27(3) (b) “…members shall provide for the
protection of plant varieties either by patents or an effective sui generis system or by any combination thereof”
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Measuring “Effectiveness”
Article 7+8+ Doha: lends a definition that is flexible and dependent on member’s national requirements
For developing countries: Stimulate R & D without compromising
welfare goals Food security. Biodiversity protection Sustainable development of indigenous
communities, etc.
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The International regime for plant variety protection is ineffective because:
1. Over protects hybrid varieties (Eligibility standards are lower than for utility patents)
Low threshold for eligibility requirements Excessive scope for breeder’s rights Inadequate limitations on breeder’s rights
In essence, the rights regime is similar to the utility patent system - creates an exaggerated private domain
2. Creates IP rights in a closed market – IP rights cannot yield benefit when the market is blocked by subsidies
3. Can potentially result in loss of genetic resources.
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Achievement of the Trade and IP Agenda…
Posited the need for biodiversity assets to generate intellectual property assets E.g., Biotechnology
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Convention on Biological Diversity, 1992
Provides access to genetic resources.
Trilogy of CBD’s Objectives:1. Conservation of biological diversity2. Sustainable development; and3. Equitable sharing of benefits (transfer of
technology) – links with intellectual property
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Biodiversity’s Unique Position
Not an idea based property Prioritized by both developing &
developed countries Creates access for the developed
world Links the developing world with:
Trade and TK Trade and IP
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What do countries want from biodiversity
Developed Nations
Access – for biotechnology assets that are protected as IP
Developing Countries
Return for local resources
Problem area
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Issues for Developing Countries
1. Protection of biodiversity
2. Generating value from biodiversity assets CBD and hence, bio-prospecting are
dependent on mutual agreement to generating value
Bargaining positions are central to determining equities.
Note: Qualifying by-products of bio-prospecting immediately generates a market value.
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Protection of Biodiversity Twin Goals: Biodiversity preservation and community
development.
Mandated under art. 8 (g) Countries should “[e]stablish or maintain the means to
regulate, manage or control risks from biotechnology likely to adversely impact the environment.”
Related with value generation & bio-prospecting
Requires government commitment Merck—InBio Kani India agreement as lacking commitment – TBGRI &
Aurveda pharmacy.
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Valuation of Biodiversity Assets Objective: generating a value that
distributes the risks and benefits of biodiversity assets proportional to several factors: Holding status; Potential market value;
Need for access, etc Crux for solving issues from bio-
prospecting
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Market Value
Bio
Valu
e
Benefits disproportionately enjoyed byaccessor
Risk of disproportionately borne byholder
Risk of capital (biodiversity) should be differentiated from risk of investment
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Models for valuing biodiversity
Prospect Model Built on the need of biodiversity to
prospector Base Compensation+ future value
depending on disclosures Disclosure mechanisms need to be built
into the agreement Information Model
Prospector negotiates an initial rate based on prediction of success
Each further test would be like purchasing an option based on rate of success
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Contract Based Model Assumes any value determined before
a product comes to market is bound to be low
Hence, the model creates a pre-determined risk v. need paradigm for every stage of research based on which further use of resource is negotiated.
The original contract precludes use of material and its by-products under some reasonable circumstances.
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Generating a bio-value
Bio-value need not be connected with biodiversity’s status as an IP.
Value should be identified in need terms Risk of bio-asset should be dissociated
with risk of investment Work towards generating continuous
value One requirement: ownership issues
For sharing IP rights; generating royalties; informed consent, etc.
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Generating continuous bio-value
Mandatory terms in bio-diversity agreement:
1. Fund allocation towards biodiversity conservation
2. Fund allocation towards community development of the locals (TK and biodiversity paradigm)
3. Local manufacturing requirement.4. IP sharing/ownership
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Local Working Requirement
Bio-prospecting agreements can include: training component provision to set up local manufacturing or
research facilities. Can be used to attract foreign direct
investments. Counters the effects of TRIPS – which
forbids the local working requirement.
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The IP Clause
Use of the name as TM; as part of GI, etc. Information provided by communities:
Akin to trade secret Royalties relative to extent of involvement.
Worldwide royalties on sales: X% for first million dollars of sale; Y% for the next 50 million dollars of sale
Joint patent holders (for a percentage of royalty).
Infrastructural changes
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Maximizing CBD’s benefits
CBD embodies flexible language in the narrative (unlike TRIPS)
Involvement:1. National Government involvement2. CBD and FAOs Governing Bodies
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CBD & FAO Governing Bodies
1. Constitute an advisory body to assist countries to negotiate favorable bioprospecting agreements.
2. Formulate advisory opinions regarding the bio-prospecting negotiations.
3. Act or create a library of information, drawing lessons to facilitate fair exchange of genetic and technological resources
4. Market positioning of the product – Kani and AVP.