TRIPS and the CBD: Balancing Provisions and Green Technology Transfer

Law of Intellectual Property Rights, Human Rights and Environment · Unit V · Topic 15 of 17 · 7 min read

The balancing provisions of the CBD (Articles 1, 3, 8(j), 15, 16, 19 and 22), the conflict with TRIPS Article 27(3)(b), the Doha paragraph 19 mandate and the disclosure-of-origin proposals, the 2024 WIPO Treaty on genetic resources and traditional knowledge; and the transfer of environmentally sound technology under Agenda 21, the UNFCCC, Kyoto and the Paris Agreement, the Montreal Protocol model, WIPO GREEN and the debate on whether patents block green technology.

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On this page

1. The CBD s balancing provisions
2. Where TRIPS and the CBD pull apart
3. Attempts at reconciliation
4. Green technology transfer: the legal provisions
5. Do patents block green technology?
How this is examined

Cases checked to exist. Read the judgment before quoting a holding.

Every case cited here has been checked to exist — the citation resolves and names the right parties. The propositions attributed to each case have not been verified line by line against the judgment. Case names link through to the full judgment: read it before quoting a holding in an examination answer, and never carry a proposition from notes into court on trust.

The examinable core. Two questions. (1) Are TRIPS and the CBD in conflict, and how can they be reconciled? Answer with the CBD articles, Article 27(3)(b), the disclosure proposal, and the 2024 WIPO Treaty. (2) Do patents obstruct the transfer of green technology to developing countries? Answer with the climate treaty provisions, the evidence on both sides, and the policy options.

1. The CBD’s balancing provisions

Article 1: three objectives, conservation, sustainable use and fair and equitable sharing of benefits, the last “including by appropriate access to genetic resources and by appropriate transfer of relevant technologies, taking into account all rights over those resources and to technologies”.
Article 3: sovereign right over resources and the no-harm duty.
Article 8(j): respect for and preservation of the knowledge, innovations and practices of indigenous and local communities, their wider application with the holders’ approval, and equitable sharing of benefits.
Article 15: access subject to prior informed consent and mutually agreed terms.
Article 16: access to and transfer of technology, including biotechnology. Developing countries are to receive technology on fair and most favourable terms; where technology is subject to patents and other IP, transfer shall be on terms that recognise and are consistent with the adequate and effective protection of IP (16(2)). Article 16(5): parties, recognising that patents and other IP may have an influence on implementation, shall cooperate “to ensure that such rights are supportive of and do not run counter to its objectives.”
Article 19: participation of providing countries in biotechnological research and priority access to its results and benefits.
Article 22(1): the CBD does not affect rights and obligations under existing agreements, except where their exercise would cause serious damage or threat to biological diversity.

Article 16 is itself a balance: it promises technology transfer to developing countries and in the same breath protects IP. The United States signed but never ratified the CBD, in part over these clauses.

2. Where TRIPS and the CBD pull apart

TRIPS	CBD
Genetic material is raw material; private invention on it must be patentable (micro-organisms, genes, processes)	Genetic resources are under national sovereignty; access needs consent and benefit sharing
No requirement to show lawful access	Benefit sharing depends on knowing the source
Rights for individual, identified inventors	Collective, inter-generational knowledge of communities
Binding, with WTO dispute settlement	No compulsory enforcement mechanism

There is no formal conflict, since a state can comply with both. The conflict is one of effect: a patent can be granted under TRIPS on an invention made from material taken in breach of the CBD, and the provider country has no remedy in the patenting country. That is the legal form of the biopiracy complaint (Vandana Shiva, Biopiracy, prescribed).

3. Attempts at reconciliation

The Doha Ministerial Declaration (2001), paragraph 19, instructed the TRIPS Council, in its review of Article 27(3)(b), to examine the relationship between TRIPS and the CBD and the protection of traditional knowledge and folklore.
Disclosure of origin. India, Brazil and other developing members proposed (2006 onwards) an Article 29bis requiring patent applicants to disclose the source of genetic resources and traditional knowledge used and evidence of prior informed consent and benefit sharing, with effective sanctions. The US, Japan and others opposed it as unworkable and a burden on the patent system; the EU and Switzerland offered weaker versions. No amendment has been made.
The Nagoya Protocol (2010) placed compliance duties on user countries, with patent offices as possible checkpoints.
National laws: India’s section 10(4)(d)(ii)(D), section 25(1)(j) and (k) and the BDA’s section 6; similar rules exist in Brazil, the Andean Community and several European states.
The WIPO Treaty on Intellectual Property, Genetic Resources and Associated Traditional Knowledge, adopted on 24 May 2024 after twenty-four years of work in WIPO’s Intergovernmental Committee (IGC). It requires a patent applicant whose claimed invention is based on genetic resources or associated traditional knowledge to disclose the country of origin or source, and the indigenous people or community that provided the knowledge. Revocation is not allowed solely for failure to disclose, except in cases of fraudulent intent. It enters into force after fifteen ratifications.
Digital sequence information: the Cali Fund (2024) under the Kunming-Montreal Framework asks users of sequence data to contribute a share of profits.

4. Green technology transfer: the legal provisions

Agenda 21, chapter 34: access to environmentally sound technology on favourable terms, with measures against abuse of IP, including compulsory licensing with compensation.
UNFCCC (1992), Article 4.5: developed country parties shall take all practicable steps to promote, facilitate and finance the transfer of, or access to, environmentally sound technologies and know-how to other parties, particularly developing countries. Article 4.7: developing countries’ implementation depends on the effective implementation by developed countries of their commitments on finance and technology transfer.
Kyoto Protocol (1997), Article 10(c): cooperation in the transfer of environmentally sound technologies, including those in the public domain.
The Technology Mechanism (Cancun, 2010): the Technology Executive Committee and the Climate Technology Centre and Network.
Paris Agreement (2015), Article 10: a shared long-term vision on the importance of technology development and transfer, a technology framework, and support for developing countries. IP is not mentioned: developing countries, India among them, had proposed language on IP and compulsory licensing for climate technologies, and developed countries rejected it.
The Montreal Protocol model: Article 10A on technology transfer and a Multilateral Fund that pays the incremental costs of switching technology, including licence fees. Indian producers in the 1990s reported difficulty in obtaining licences for patented substitutes for CFCs, which is the usual illustration of the problem.
TRIPS: Articles 7, 8, 27(2), 31, 40 and 66.2 apply to green technology as to medicines. There is no Doha-style declaration for climate technology.

5. Do patents block green technology?

The view that they matter less than claimed. Studies of mature technologies, such as John Barton’s 2007 study for ICTSD on solar photovoltaics, wind and biofuels, found that patents were spread among many firms, competition kept prices down, and the real barriers were cost of capital, know-how and absorptive capacity. Patents are often not filed in poorer developing countries at all.

The view that they matter. In newer fields (advanced batteries, green hydrogen, carbon capture, efficient refrigerants) patents are concentrated in a few firms in a few countries, and know-how is tied to patented processes. Patents also give holders control over licensing terms, and developing countries without bargaining power face high royalties or refusal.

Options. (1) Compulsory licensing under Article 31, as for medicines; (2) a declaration on TRIPS and climate change on the Doha model, proposed but not adopted; (3) patent pools and public funding with open licensing; (4) voluntary platforms such as WIPO GREEN (launched 2013), which matches technology owners and seekers; (5) the Article 66.2 incentives; (6) exclusion of environmentally harmful inventions under Article 27(2) and promotion of green ones through expedited examination, which several patent offices offer.

Assessment. The CBD and climate treaties both rely on technology transfer and both protect IP in the same article that promises transfer. The result is a promise without a mechanism. A good answer argues for using the TRIPS flexibilities, as was done for medicines, together with finance on the Montreal Protocol model, rather than treating IP as either the whole problem or no problem. Philippe Cullet’s prescribed book takes this line: IP must be judged by its contribution to sustainable development.

How this is examined

Likely long questions: “Discuss the relationship between TRIPS and the CBD. Are they in conflict?”, “Examine the balancing provisions of the CBD relating to IPR,” or “IPR and the transfer of environmentally sound technologies: discuss with reference to international instruments.” Short notes: Article 16 CBD; Article 29bis proposal; the 2024 WIPO Treaty; Article 4.5 UNFCCC; WIPO GREEN. Use the comparison table for the TRIPS–CBD question.