The CBD and TRIPS; the CBD and UPOV

1. Two different philosophies

2. Points of conflict

1. Patents on life. Article 27.3(b) of TRIPS lets members exclude plants and animals other than micro-organisms, and essentially biological processes, but requires patents for micro-organisms and non-biological and microbiological processes, and requires protection of plant varieties by patents, an effective sui generis system, or both. Developing countries argue that this turns genetic resources into private property, contrary to sovereignty and benefit sharing.
2. No disclosure or PIC condition. TRIPS does not require an applicant to show where a resource came from or that it was lawfully accessed. A patent may therefore be valid in TRIPS terms though the resource was taken in breach of the CBD.
3. TK as prior art. Patent law in many countries did not count foreign oral or unpublished use as prior art (US law before the America Invents Act, 2011), allowing patents on known uses (turmeric, neem).
4. Technology transfer. The CBD asks for transfer on favourable terms; TRIPS strengthens the exclusive rights that make transfer expensive.
5. Farmers’ practices. Strong plant variety and patent rights limit seed saving, which conserves agricultural biodiversity.

3. The argument that there is no legal conflict

Developed countries, especially the US, argue that the two treaties regulate different things: TRIPS sets minimum IP standards; the CBD regulates access to resources. A state can enforce PIC and benefit sharing through access laws and contracts without touching patent law, and nothing in TRIPS forbids that. Patentability criteria (novelty, inventive step) already exclude known TK if properly applied. Article 22 of the CBD also preserves existing treaty rights unless their exercise would cause serious damage to biodiversity. On this view the problem is enforcement across borders, not treaty conflict.

The reply is that contracts cannot be enforced against third parties in foreign courts, that communities lack the means to sue, and that the patent system is the only checkpoint in the user country through which almost every commercial product passes. A disclosure requirement in patent law is the practical way to make the two regimes “mutually supportive”.

4. The negotiations

• Doha Ministerial Declaration (2001), paragraph 19: the TRIPS Council was instructed to examine, in its review of Article 27.3(b), the relationship between TRIPS and the CBD, the protection of TK and folklore, and other developments, guided by Articles 7 and 8.
• Proposed Article 29bis: India, Brazil, Peru, China and others proposed an amendment requiring applicants to disclose the source and country of origin of biological resources and TK, evidence of PIC and evidence of benefit sharing, with consequences for non-compliance.
• Positions: the EU and Switzerland accepted some form of disclosure (Switzerland through an amendment to the PCT; the EU with sanctions outside patent law); the US, Japan and others opposed any change to TRIPS. The WTO talks have not produced an amendment.
• WIPO: the Intergovernmental Committee on IP and Genetic Resources, TK and Folklore (from 2000) eventually produced the WIPO Treaty on Intellectual Property, Genetic Resources and Associated Traditional Knowledge, adopted on 24 May 2024. It requires patent applicants, where the claimed invention is based on genetic resources or associated TK, to disclose the country of origin or source (and the indigenous peoples or local community for TK). It does not make non-disclosure a ground for revoking a patent except for fraudulent intent, under national law. It does not cover derivatives or digital sequence information expressly.

5. India’s domestic answer

India did not wait for the WTO. The Patents (Amendment) Act, 2002 and 2005 introduced source-of-origin disclosure (section 10(4)(ii)(D)), opposition and revocation grounds for non-disclosure or wrong mention of the source or geographical origin of biological material and for anticipation by local or indigenous knowledge (sections 25(1)(j)–(k) and 64(1)(p)–(q)), and the exclusion of TK in section 3(p). The Biological Diversity Act requires NBA approval before grant of IP based on Indian resources (section 6, as amended in 2023) and authorises the NBA to oppose IP grants abroad (section 18(4)). These are discussed in Unit V.

6. The CBD and UPOV

UPOV (the International Union for the Protection of New Varieties of Plants) was founded by the 1961 Convention, revised in 1972, 1978 and 1991. Most new members must join under the 1991 Act. The relationship with the CBD raises distinct issues:

• Breeders’ exemption. Under both Acts a protected variety may be freely used for breeding other varieties (UPOV 1991, Article 15(1)(iii)). This keeps genetic material in circulation, which supports conservation and is close to the CBD’s aim of access. UPOV says it is a form of benefit sharing.
• No extra conditions. UPOV 1991 makes novelty, distinctness, uniformity, stability and a denomination the only conditions of protection and forbids further or different conditions (Article 5(2)). A requirement to prove PIC or lawful access as a condition of grant would breach this. UPOV’s position is that offices may ask for information on origin but cannot refuse protection for failing to give it.
• Farmers’ privilege. UPOV 1991 makes the farm-saved seed exception optional and confined to the farmer’s own holding (Article 15(2)), and extends rights to harvested material and essentially derived varieties. This narrows the space for farmers’ rights under Article 9 of the ITPGRFA and Article 8(j) and 10(c) of the CBD.
• Uniformity. DUS testing rewards uniform varieties and cannot protect variable landraces, which hold most crop diversity.
• “Discovery”. UPOV 1991 defines a breeder as one who bred “or discovered and developed” a variety, which critics say allows appropriation of farmers’ varieties found in the field.

India’s choice. India did not join UPOV and enacted the PPV&FR Act, 2001 as an “effective sui generis system” under Article 27.3(b). It requires disclosure of the geographical location and source of the parental material, registers farmers’ varieties and extant varieties, preserves the farmer’s right to save, use, exchange and sell unbranded seed (section 39(1)(iv)), and provides for benefit sharing and community compensation (sections 26 and 41). Joining UPOV 1991 would require removing several of these.

How this is examined

Likely long questions. “Critically examine the interrelationship between the Convention on Biological Diversity and the TRIPS Agreement.” “Is UPOV 1991 compatible with the objectives of the CBD? Discuss with reference to India’s position.”

Likely short notes. Article 27.3(b) of TRIPS; disclosure of origin; Article 29bis; paragraph 19 of the Doha Declaration; WIPO Treaty on IP, Genetic Resources and Associated TK (2024); breeders’ exemption.