International Dimension of Protection of TK Presentation by India

Structure of the Presentation Indian experience Need for international recognition of systems of protection of TK. Elements of international instrument Role of inter-governmental bodies

Indian Experience Issues: Bio-Piracy - Misappropriation Benefit sharing and Prior Informed Consent Recognition and Protection of TK. Commercialisation of TK

Bio-piracy Bad patents instances of patenting of neem, turmeric, bitter gourd, brinjal, etc. Expensive legal challenges Search for a mis-appropriation regime – Documenting TK Prohibiting patents Disclosure of the source of TK

Indian initiatives Documentation of TK Traditional knowledge Digital Library People’s Biodiversity Register Disclosure requirement Provision of mandatory disclosure in patent application of source of biological material used in the invention in Patents (2 nd Amendment) Bill.

Prior Informed Consent & Benefit Sharing Indian Bio-Diversity Bill Provision for prior approval of National Biodiversity Authority(NBA) before access NBA to impose terms and conditions for equitable benefit sharing. Prior approval of NBA before seeking any IPR in India or outside.

Experience in Other countries Provisions in existing or proposed laws in- Brazil, Costa Rica, Peru, Philippines, Andean Community (Bolivia, Colombia, Ecuador, Peru and Venezuela), Model OAU Law, etc. Provisions for PIC, benefit sharing, systems for contract and MTA, some restrictions on IPRs if PIC and benefit sharing is not ensured, respect for customary laws, etc. Though certain elements are common but each national regime is different from others

Inadequacies of National Systems Patents being sought in other countries on TK – bad patents. Patents being sought in other countries for inventions utilising TK without PIC and benefit sharing. Commercialisation of TK in other countries without PIC and benefit sharing. Issues relating to protection of TK through alternative system.

Elements of International Instrument Local protection to the rights of TK holders through national level sui generis regimes. Effective enforcement of national systems through positive comity among national authorities of various countries Contd….

Elements of International Instrument A procedure whereby use of TK particularly for IPR is allowed only after obtaining PIC of country of origin. International instrument that recognises such national level systems. Such instrument should prevent bio- piracy and ensure that national level benefit sharing mechanisms and laws are respected worldwide.

Role of Inter-governmental Organisations WTO-Doha Mandate Harmonization of provisions of TRIPS and CBD approaches Issue of mandatory disclosure provision Mandatory PIC Countries may protect TK through sui generis system – Article 27.3 (b).

Role of Inter-Governmental Bodies WIPO Development of a sui generis systems to protect TK. Work on TK database CBD Guidelines for access and benefit sharing Emphasis on benefit sharing mechanisms

Way forward for Developing Countries Development of international instrument in an inter-governmantal fora Clear road-map required By the developing country’s coalition – Constitution of an Expert Committee Coalition effort required in WTO, WIPO, CBD, etc.