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Biotechnology patenting and biodiversity protection: resolving conflict.

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Introduction

All the constant developments in the field of IPR are expected to impact the fields of Biotechnology and Biodiversity. There are issues that need to be considered which are related to Plants variety Protection and Public health care. Most of the scientific researches in the field of Biotechnology have focused on biodiverse genetic resources.Analysis of the relationship between access to biological and genetic components, agriculture systems, food security, and growing poverty levels around the world, the application of IPRs to plant varieties and the involvement of biotechnology have particularly critical ramifications.The use of intellectual property rights as part of the “sharing of the benefits” deriving from the use of genetic resources have been discussed several times in the Biodiversity Conventions.

This article aims showcase how biotechnological developments are affecting biodiversity. The links that exist between biodiversity and biotechnology, which in turns meets at IPR.

Impact of IPR on development

The significance of IPR protection in decreasing poverty and encouraging progress in developing nations, as well as the impact of IPR regimes of developing countries’ access to innovations, are actively being examined. However, due to a dearth of data and information on developing countries, new inferences and trends have emerged, pointing towards contradictory messages about the connection between IPRs and development.

In 2002, UK commission on IPR, in its report mentioned some of the effects of IPR on development: 

  1. There is some indication that the degree of IPR ownership influences trade flows into developing nations, specifically for industries that are IPR sensitive, such as chemicals and medicines, although the data is mixed.
  2. There is no substantial evidence that foreign investment is significantly associated with IPR only;
  3. The majority of evidence on the significance of IPRs in trade and investment comes from more technologically sophisticated emerging countries.Any favorable trade and investment consequences for other developing countries are doubtful to outweigh the disadvantages, at least in the near and medium term.

The commission has viewed IPR as an instrument for promoting innovation and contributing to the competitiveness of developing countries, rather than as a goal in and of themselves.

Biodiversity and IPR linkage

Historically, India has taken a strong stance against the issuance of patent rights that limit a developing country’s capacity to receive and employ advanced technologies, or that pertain to food, health, or medical treatment (e.g., pharmaceuticals, agricultural chemicals). But since India was a signatory to TRIPS and it also signed accords with WTO, India had to implement a law on regulating IPR with relation to biodiversity. After this, Protection of Plant Varieties and Farmers Rights Act, 2001, was implemented. This was the first time country acknowledged farmers right. Later, the government also brought Biodiversity act, 2002 to ensure that the resources are used judicially. Let us look at some of the provisions to determine the crossroad between IPR and Biodiversity:

  1. Sec 6 (1) mandates it for anyone who wants to apply for IPR on any biological resource which is obtained from India without prior approval of National Biodiversity Authority.
  2. The Patent Act, 1970 in its S 10(4)(d)(ii) states that whoever is applying for patent has to reveal the origin of the source for the biological source employed in the invention should be mentioned at the start of the patent filing process.It must be approved by the National Biodiversity Authority (NBA).
  3. Although, if the biological source of the invention is not obtained from India but from a foreign land, then it has to be declared to avoid questioning at a later stage.

IPR and Biotechnology

For many years, stakeholders in India have been perplexed by the patenting of biological forms.The Indian Patent Office has evolved over time to develop a number of initiatives to solve the challenges surrounding the patenting of living organisms. India’s stance on patenting living organisms has changed over time. Earlier, India was not in favor of patenting life forms, it also demanded for review of TRIPS Article 27.3 (although allows to exclude plants and animals from patent, but states that micro-organisms are eligible). However, being a member of TRIPS, it had to comply with the provision and therefore, it amended the Patent Act, 1970. By adding section 3(j), the government has allowed to  patent microorganism and not just the methods that produce them. Even though there is still confusion around what constitutes micro-organisms, the issue related to Genetically Modified Organisms (GMOs) is quite clear. GMOs do not occur naturally, a human intervention is necessary for their development.

It should be emphasized that biotech businesses invest heavily in research and development in order to generate new and improved microorganisms.Given the large sums of money poured and the risk taken by these businesses, it is admirable that they be rewarded for their efforts.Genetic engineering and biotechnology play a significant role in a country ’s economic development.

The impacts of Biotechnology on Biodiversity

Genetic engineering, often known as genetic alteration, is the use of biotechnology to directly manipulate an organism’s genome. Agriculture is the area that has been substantially affected by genetic engineering. The genetically engineered crops are known as “Transgenic crops”. They are developed to be resistant against herbicides and pesticides. They are also equipped in tackling the abiotic influences such as, weather conditions and also have a nutritional enhancement.

Inspite of all these benefits, there are some adverse impact as well:

  1. It throws off the ecological balance and interferes with natural interactions. Even though it is claimed that biotechnology is adding to the diversity as it produces new species, but the facts say that it threatens biodiversity at a larger scale.
  2. Genetic pollution– This has been a cause of concern for environmental scientist as it results in depletion of pure scientific resources. Genetic pollution basically refers to an unregulated and unwelcome gene flow into natural populations.
  3. Monoculture is becoming more common as a result of the use of transgenic crops.Monoculture is a strategy of promoting genetic uniformity in industrialized agriculture.To increase productivity, large fields are planted with a single high-yielding variety and costly inputs like hi-tech irrigation systems, fertilizer, and pesticides are used.Because genetic homogeneity crops become subject to attack, a pest or disease that affects one plant spreads rapidly throughout the crop.
  4. Genetic Erosion – Monoculture leads to “Genetic Erosion”.  Genetic erosion is a process in which the already small gene pool of endangered species becomes further smaller. Even though uniformed transgenic plants have the potential to be high yielding under specific conditions, their conformity in genetic material is actually eliminating biodiversity at a faster rate.This is due to the fact that farmers are now focusing on a small number of plant types with unique genetic traits.Natural seeds are devoured as they plant the new transgenic seeds.

Conclusion

To summarize, despite the potential benefits and ambitions of feeding the world through plant biotechnology, genetically engineered crops pose a threat to biodiversity because they restrict gene expression to only what is required, destroying natural genetic constructs and disrupting the natural ecological balance.The interaction between the two systems is being investigated.Other pertinent issues, such as biodiversity conservation and the ethical dimensions of the protection and commercialization of biotechnological inventions, have been discussed in a variety of forums, including the World Trade Organization (WTO), the Convention on Biological Diversity (CBD), and the World Health Organization (WHO).

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Contributed by:– Nidhi Jha, Legal intern at LLL

 biodiversity protectionBiotechnology patentingImpact of IPR on developmentIPR and Biotechnology

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