Peruvian Analysis of Potential Cases of Biopiracy, Prepared for the 24-28 April Session of the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Fol

April 13, 2006

Geneva, 12 Apr 2006

ANALYSIS OF POTENTIAL CASES OF BIOPIRACY

The Case of Camu Camu (Myrciaria Dubia)

INTRODUCTION

In recent years, Peru has made it clear that the protection of its genetic resources (part of its biological resources) and of the related traditional knowledge of the indigenous peoples of Peru is one of its major concerns in view of the growing trend towards using such

Resources - without the consent of their owners and without giving them any compensation - in order to develop inventions it is ultimately intended to protect under the patent system.

In this respect, as mentioned in document IP/C/W/441 (submitted to the meeting of the Council for Trade-Related Aspects of Intellectual Property Rights (TRIPS) of the World Trade Organization (WTO), held in March 2005), Peru has adopted a series of measures, policies and rules to combat biopiracy.

One of the measures adopted was the creation of the National Anti-Biopiracy Commission , whose basic task is to develop actions to identify, prevent and avoid acts of biopiracy which involve biological resources of Peruvian origin and traditional knowledge of the indigenous peoples of Peru. Initially, this intersectoral commission focused on identifying potential cases of biopiracy of six biological resources of Peruvian origin , i.e. looking for pending patent applications or patents granted abroad that seek to protect inventions apparently obtained from or developed on the basis of these biological resources and/or the traditional knowledge of Peru's indigenous peoples.

In order to highlight the progress made and the problems encountered by Peru in combating biopiracy and also to support its position in various international forums, the results of the first stage of this work were presented to the meeting of the TRIPS Council of the World Trade Organization (WTO) held in March this year , and to the Eighth Session of the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore of the World Intellectual Property Organization (WIPO), held in June 2005.

The Commission has now started to analyse each of the cases identified during the first stage of the search for potential cases of biopiracy. It has benefited from the support of an expert in each of the resources - who has collected information on each resource (background, characteristics, related traditional knowledge, inter alia) - and of a patent examiner - who has examined compliance with the criteria of novelty and an inventive step for each of them, taking into account the information collected.

Outline of the problem

It has become clear in recent years that the market for natural products (derived from biodiversity) has been steadily expanding, particularly in the United States of America, Europe and Asia. At the same time, the trend towards protecting a large number of inventions obtained or developed through the use of genetic resources of Peruvian origin and/or the related traditional knowledge of Peru's indigenous peoples by means of intellectual property rights (especially patents for inventions) has become more marked and has increased.

It can be seen in this connection that a large number of pending patent applications and patents granted do not meet the novelty and inventive step criteria or, when they do meet patentability requirements, they (directly or indirectly) incorporate genetic resources and traditional knowledge that has been obtained illegally, irregularly or questionably, to say the least.

This situation has caused a deep malaise in countries traditionally considered to be 'providers' of resources (and traditional knowledge) and is reflected to some extent in the establishment of protectionist regimes that restrict access to genetic resources and traditional knowledge, which have been underpinned by a change in the paradigm from the idea of mankind's common heritage and free access to that of recognition of the concept of sovereignty, regulated access to resources and protection of traditional knowledge, all of which are concepts introduced by the Convention on Biological Diversity (CBD) from 1993 onwards.

Peru has adopted a consistent position over the years, seeking a solution at the international level that will allow a balance to be achieved between the intellectual property regime and legal systems for access to genetic resources and protection of traditional knowledge. Accordingly, as a first measure, it has proposed the inclusion of requirements on disclosure of the origin and legal source of such resources and knowledge as part of the process of revising Articles and 29 of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).

Objective

This document describes the progress made in identifying and analysing patent applications and patents concerning inventions obtained or developed through the use of camu camu (Myrciaria dubia).

It also contains some comments on the limitations and problems faced by countries such as Peru, or that may be faced by them, in identifying, monitoring and studying patent applications or patents that involve improperly granted rights (because they do not meet patentability criteria) or weaken regimes for access to and/or protection of traditional knowledge. Background and content of the report

As already mentioned, in the first instance, the Commission focused its efforts on seeking out potential cases of biopiracy of six resources, including camu camu (Myrciaria dubia).

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