London, 26 Oct 2005
The Convention on Biological Diversity (CBD) seeks to promote:
- Conservation of biological diversity.
- Sustainable use of its components.
- Equitable sharing of the benefits from the use of genetic resources.
Patent laws should forward these objectives, which are worthy of full support. Accordingly some suggest that patent applications concerned with genetic resources should be obliged to show that such resources have been accessed with Prior Informed Consent (PIC): or at a minimum to disclose the origin of such resources. This, it is said, will enable supplying countries to check that users of such resources are respecting the CBD, and encourage benefit-sharing.
This proposal is totally misconceived. It is based on false assumptions. It is unclear, impractical and disproportionate. If implemented, it will hinder the objectives of the CBD rather than promoting them, and impose burdens on innovators while benefitting no-one.
The Convention on Biological Diversity (CBD) came into force in December 1993. It has about 180 members - the great majority of countries in the world, though excluding the USA. Its objectives are set out in Article 1 as:
It recognises the sovereignty of each member nation to exploit its own genetic resources (Article 3). Accordingly, each nation has the right to control access to those resources (Art 15.1) but is obliged to 'facilitate' such access (Art 15.2). Access is to be granted on mutually agreed terms (Art 15.4) but subject to PIC of the party providing it (Art 15.5). Benefits arising from use are to be equitably shared with the providing party.
Article 15 applies only to the provision of resources for which the providing country is the 'country of origin', or has received in accordance with the CBD (Art 15.3). The 'country of origin' is the country which possesses those genetic resources in in-situ conditions (Art 2). Article 16 deals with access to technology, which is to be facilitated, but taking account of IP rights. Art 16.5 requires members to ensure that IP rights are 'supportive of and do not run counter to' the CBD's objectives.
The objectives of the CBD are worthy of the fullest support*. Biological diversity should be conserved: both for practical and for moral and aesthetic reasons. The components of biological diversity have many valuable existing uses (feeding the world, for example), and there are many more to be discovered. Many important drugs have been extracted from plants, or synthesised from starting materials obtained from them. It is surely unarguable that the benefits from such uses should be fairly shared - though of course there may often be disagreement about what is fair.
However, good objectives are not sufficient. The road to Hell is paved with good intentions. Effective legislation must take account of all relevant circumstances.
Again, it is entirely proper that IP laws should support and not frustrate the CBD's objectives. But it by no means follows that changes to IP laws are good (or even acceptable) ways of achieving those objectives. Existing IP laws provide a way of extracting returns from investments in new uses. In this way they have two effects: they encourage innovators to search for such new uses, and they enable innovators to extract a financial return from the new users. This return may then be shared, equitably, with those who have contributed resources. Regulations which make it more difficult to obtain patents discourage research on new uses. Changes are worthwhile only if the benefits will outweigh the costs.