” This provision has led to a debate between WTO member states whether a revision of the WTO TRIPS Agreement is required to bring the agreement into line with the CBD in particular as far as the protection of traditional knowledge of local and selleck indigenous communities mentioned in Article 8 (j) CBD is concerned. The TRIPS Agreement see more does not make reference to traditional
knowledge. It does, however, require the granting of intellectual property rights to plant varieties, either in the form of patents or “by an effective sui generis system or by any combination thereof” (Article 27.3 (b) TRIPS). As for patents, the same provision of Article 27.3 (b) TRIPS allows for the exclusion from patentability of “plants and animals other than micro-organisms, and essentially biological processes for the production of plants or animals other than non-biological and micro-biological processes”. The provision aims at a fundamental distinction in patent law between non-patentable discoveries and inventions, which may be patented. The TRIPS Z IETD FMK Agreement leaves it to national legislation where precisely to set the threshold
(Gervais 2003, p. 229). However, with the growth of the biotechnology industry, patenting of micro-organisms has become common following the decision of the US Supreme Court in Diamond v Chakrabarty (Rimmer 2008, pp. 24–49) and is now required in the TRIPS Agreement as is the patenting of non-biological and micro-biological processes. From its introduction, Article 27.3 (b) provided for a review of the provision four years after the unless date
of entry into force of the WTO Agreement. While this mandate was reiterated at the Doha Ministerial Conference in 2001, the review has not generated any substantive results (Biber-Klemm et al. 2006, p. 79; Gervais 2003, pp. 227–234). In the international debate about the extension of intellectual property protection to plant varieties in particular, traditional knowledge has been used partly as a counterargument to defend regional, national and local interests especially related to food security and agriculture. It has further been used to raise counterclaims for the protection of knowledge more typically to be encountered in developing countries. The focus of this discussion has recently been on the proposal of a group of developing countries to require the disclosure in patent applications of the origin of any resources and/or associated knowledge used in generating an invention as well as evidence of prior informed consent and equitable benefit-sharing, a proposal which in turn triggered alternative proposals from the US, Japan, the EU and Switzerland (Straus 2008, pp. 229–231). International definitions of “traditional knowledge” The precise definition of traditional knowledge is equally still debated.
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