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Biodiversity and intellectual property rights: Conflict or synergy

Article in The Journal of World Intellectual Property · July 2022

DOI: 10.1111/jwip.12234

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Received: 31 March 2022 | Accepted: 2 June 2022

DOI: 10.1111/jwip.12234

ORIGINAL ARTICLE

Biodiversity and intellectual property rights:

Conflict or synergy

Rahul Sharma | Lavanya Madhusoodanan | Patrika Soni |

Amit Dubey

Intellectual Property Right Centre,

Chhattisgarh Council of Science & Abstract
Technology, Raipur, Chhattisgarh, India
India is a country with a diverse ecosystem. Traditional
Correspondence knowledge (TK) is an important element of Indian culture
Amit Dubey, Intellectual Property Right
and society. Because of its diversity, India has been a victim
Centre, Chhattisgarh Council of Science &
Technology, Raipur, Chhattisgarh 492 014, of biopiracy on multiple occasions, though it has learned
India.
from the haldi, neem, and basmati episodes. While it is
Email: amitdubeyccost@gmail.com
critical for countries to maintain their biodiversity and
indigenous knowledge, it is also critical to protect the rights
of those who add value to it and expand its usage through
intellectual property rights (IPR). As a result, biodiversity
conservation and IPR come into conflict. Biodiversity
conservation conventions and statutes aim to strike a
balance between the interests of both parties. The
Biodiversity Act of 2002 in India stipulates that indigenous
tribes must give their prior informed consent before
accessing and utilizing a bioresource. It also establishes a
legal framework for benefit sharing in various ways in the
event that any intellectual property on the bioresource or
relevant TK is acquired. However, putting the plan into
action is still a struggle. This, in turn, deprives the true
bearers of the relevant TK, who have either nurtured
bioresources for years. The framework of biodiversity
conservation legislation as a way of protecting TK holders'
rights in the international and Indian contexts is discussed
in this study.

J World Intellect Prop. 2022;1–13. wileyonlinelibrary.com/journal/jwip © 2022 John Wiley & Sons Ltd. | 1
2 | SHARMA ET AL.

KEYWORDS
biodiversity, convention on biological diversity, intellectual
property rights, Trade Related Intellectual Property Rights
Agreement, World Intellectual Property Organization, World Trade
Organization

1 | INTRODUCTION

Biodiversity refers to the variety of living things such as plants, animals, and other organisms that coexist in this
habitat. There are millions of different varieties of plants and animals in it. As per numerous statistics, biological
resources are disappearing as a result of human behavior and environmental conditions, hence there has been a
pressing need to maintain and conserve biodiversity, as biological resources are dwindling, so protection and
conservation of them are urgently needed.1
Biodiversity is divided into three categories: species, habitats, and gene. In general, India is profuse in all three
levels of biodiversity. India's diverse biodiversity is matched by its equally varied cultural diversity and a unique
array of traditional knowledge (TK) systems that have been established, conserved, freely shared, and cared by
society. India is home to a vast array of flora and fauna. India is 10th among the world's plant‐rich countries and 4th
among Asian countries. As per 2011 Indian census the Scheduled caste and scheduled tribe comprises about 16.6%
and 8.6%, respectively of India's total population. Forests and other tough terrains are home to the tribals. They
gained unique insight into the use of a diverse range of flora and fauna. The majority of these are either lesser
known or unknown to the general public. If TK is submitted to scientific analysis, it can help humanity in a variety of
ways.2
Instruments enforcing intellectual property rights (IPRs), such as patents and trade secrets, have gotten a lot of
attention in recent years as means for preserving biodiversity while fostering sustainable development and a more
fair and equitable distribution of the benefits among nations.3 The majority of the world's biodiversity‐rich countries
are undeveloped and lack the technology needed to convert biological resources into products that provide large
measurable advantages.4
The 1990s were marked by a bitter dispute over how to balance biodiversity protection with IPR. The World
Trade Organization's (WTO) Trade Related Intellectual Property Rights (TRIPS)5 and the Convention on Biological
Diversity (CBD)6 are responsible agencies which can affect or control the linking among IPRs, biodiversity, and TK
systems.
The main aim of CBD is that the countries should come forward to protect the biodiversity and TK gained by
the indigenous peoples and local communities who are directly linked with the access of genetic resources and their
related knowledge aspects.
While on the other hand, TRIPs Agreement wants the signatory countries to alter their national IPR policies to
matchup with international standards, which might affects the associated genetic resource and TK of the
indigenous community. Apart from this, several national and international organization such as WIPO, WTO taking
much intrest in the TK and related areas.7
International commerce in genetic resources (OECD, 1996), often known as bio‐trade, has huge economic
stakes now‐a‐days. The annual sales of pharmaceuticals based on traditional medicines/herbs become more than
US$ 32 billion.8,9 Bio‐prospectors are predicted to be able to raise the success rate in trials from one in 10,000 to
one in 2 by consulting indigenous peoples.10 As per Anuradha et al.,11 TK can boosts the efficiency of screening
plants for therapeutic characteristics by more than 400%. Many useful medicinal products that are widely used now
would not exist if indigenous knowledge had not been incorporated.12,13
SHARMA ET AL. | 3

Before 1992, TK rules and resources were regarded as mankind's common inheritance. There were no
international or national laws governing access to genetic resources in most countries. As a result, the commercial
use of indigenous peoples' knowledge and biological resources has increased. The CBD, which recognized the
worth of indigenous knowledge and resources for the first time. CBD was established because of the rapid
depletion of environmental resources and for the need to reward both users and suppliers. It provided a framework
for enabling access to genetic resources as well as a method for benefit sharing that is fair and equitable.14
The United Nations CBD, which entered into force in 1993, demonstrates a strong commitment to long‐term
development. Its ultimate goal is to promote biodiversity conservation through tenable use of all the aspects and
equal distribution of the monetary gain because of genetic resources to the indigenous people and community.
Because of the growing threat to biodiversity, the problem of protecting indigenous knowledge and resources has
been placed within the umbrella of intellectual property (IP).
As a result, the CBD defends a country's sovereign rights over its resources, leading to the modification of
genetic resources' status from “shared legacy of mankind” to “private property of countries of origin.”15 Does the
formation of IPRs for indigenous knowledge and genetic resources help or hinder the channeling of fair economic
rewards to the custodians? IPRs, according to critics, pose a threat to biodiversity by restricting access to resources
and goods produced from them. TRIPS supporters argue that IP promotes technology transfer, which could be one
approach for achieving equitable benefit sharing.16
Even while these agreements' resource‐technology reciprocity and IPR provisions have significant economic
justifications, their global application raises concerns about wealth transfer and respect for national and cultural
independence.17,18
The relationships between IPRs (especially TRIPs) and biodiversity, particularly in regard to access to genetic
resources and benefit sharing (ABS) and TK, have been arguably the most controversial of the many issues
addressed in the CBD.19
We tried to discuss the following point in the manuscript:

• Brief history and relationship of IPRs with biodiversity;

• Outline the precise relationship and variance between IPRs and biodiversity;
• Highlight the absurdities between TRIPs and the CBD and how the how that conflict might be resolved;
• Examine the clauses in social structures for adopting sustainable and appropriate national action;
• Outline possible alternative platform and course of actions that could help to resolve the conflicts between IPRs
and biodiversity.20

The present debate in this area offers some fascinating points of view, which are outlined here to provide
context for this topic.21,22,23

2 | A B R I E F H I S TO R Y OF I P R S AN D B I O D I V E R S I TY

Information is protected in large part under the IPR regime. Genetic resources and TK contain a lot of information
that has a lot of marketable worth. IPR is an exclusive personal right. As an incentive for the inventor or creator to
innovate, IPR gives exclusive rights to holder to prevent others from using a product, technique and monetary gains.
For example, the TRIPS Agreement's patent system empowers patent holder to forbid third parties from using the
patented product or process. As a result, IPR determines who has access to genetic resources and influences the
distribution of benefits derived from their utilization. IPR will have an impact on who receives benefits from genetic
resources, which will have implications for biodiversity protection and usage. Commercial interests are exerting
increasing pressure to obtain IPRs over genetic resources as a result of the value associated with IPRs.
4 | SHARMA ET AL.

This pressure, as well as the associated IPR systems, is posing difficulties for policymakers attempting to implement
the CBD's goals.24

2.1 | Statements and consequences

According to the CBD, the country has sovereign rights over biological resources on its territory. It also states that
the contracting parties must:

i. Respect, preserve, and protect the TK, inventions, and practices of native and local tribal communities who
symbolize traditional lifestyles that showed the relevancy to the conservation and long term use of biological
diversity; and
ii. Assist the fair sharing of profit obtained from the use of such knowledge, innovations, and practises, with the
permission and participation of the holders of such knowledge, innovation, and practices.25

According to the TRIPs Agreement, each country is required to make necessary revisions to its IP laws to offer
protection for items that were previously not covered by IPRs in many nations. Microorganisms, plant types, and
medicinal goods are among the new products that can be included.
Concerns have been raised about the implications of TRIPs, specifically that the grant of IPRs could have the
following consequences:

• It would validate the appropriation of biological resources and knowledge pertaining to such resources for the
purpose of asserting exclusive rights over these resources, a situation known as “biopiracy.”
• The fight over genetic resources is not only about the actual physical resource; but it is also about the ethereal
knowledge base that comes with it. Local and indigenous communities, who have established a wealth of
knowledge regarding the use and qualities of many biological resources via years of sustained expertize,
observation, and utilization, are the originators and caretakers of most of this information.26 However, access to
resources and information has long been governed by the laws (or lack thereof) of snooping, smuggling, and free
access and it is feared that the TRIPs regime will only encourage this.27
• It would result in a proliferation of genetically modified seeds, posing a threat to the ecological balance and
posing a risk to sustainable agriculture.
• It would have negative consequences for small farmers, their land‐races, and farm‐based inventions.28
• It may foster monopolies, resulting in the unsustainable use of a biological resource.
• It may jeopardize biological variety by encouraging the cultivation of just those species with commercial worth.
• The introduction of genetically modified organisms may have negative environmental implications, not all of
which are now anticipated.
• There is no apparent link between enhanced IPR protection and more investment or in‐country research and
development, according to empirical evidence.29
• The presence of a domestic, scientific, or technical infrastructure, as well as the nation's intention to further
technical and industrial development, are two key preconditions that must be met before patent protection may
be justified.30
• IPRs are being tightened, keeping emerging countries out of the knowledge sector.31
• It is upsetting to prescribe universal norms for all countries, regardless of intrinsic variations in their phases of
development, and to limit their options in terms of the kind of exceptions that can be carved out under patent
law.
On the other side, proponents of IPRs believe that the contradiction between the CBD and the TRIPs
agreement is largely fictitious, and that:
SHARMA ET AL. | 5

• Under the CBD, States can enact regulations for access to genetic resources and ensure benefit sharing from
their use, which does not conflict with what the TRIPs Agreement mandates;
• Both are international agreements that have been debated and voluntarily signed; and
• there are enough exceptions in the TRIPs Agreement to satisfy concerns about biodiversity; IPRs are necessary
to prevent misuse and to ensure economic gains from innovation32;
• Greater levels of intellectual property protection would assist developing nations in the short and long term,
including technology transfers and investments33;
• Additionally, IPRs can never be obtained for natural items, and they just seek to reward human inventiveness;
• The patent system is not usually the place to perform technological assessment, patent protection for a novel
technology should not be refused based on speculation about potential negative repercussions.34 Issues with
social and other ramifications should be dealt outside of the realm of patent law.35,36

3 | P R O B L E M S O F A P P L I C A B I L IT Y

Following the discussion of IPRs potential strengths and drawbacks, the realities of customizing them to meet the
needs of local communities can now be considered. The first question is: can IPRs and CBD work within the
framework that already exists?
When applied to local communities, some contend that IPRs' individualistic nature causes a slew of
complications. They fail to notice the reality that these communities adopt a holistic approach to environmental
issues. Such tribal communities have a hard time separating their resources, which provide their subsistence, into
different economic and social assets.37 In terms of IPRs, this creates a new dilemma. Given the necessity to
demonstrate novelty and nonobviousness, how can one identify an invention and a benefit in local communities?
Knowledge is learned over time and passed down through generations in most traditional communities. Its
character evolves and changes as a result of this process. As a result, determining when such knowledge was
discovered and when it reached the public domain is difficult.
The community aspect of indigenous knowledge is the second aspect of the dilemma. It develops through the
sharing of knowledge among community members, such as elders, who have the wisdom of years of experience to
add to knowledge. In this sense, it has always been in the community's public domain and thus fails to meet the
patent's nonobviousness standard. How can one identify the inventor when a whole community is involved in the
growth of TK?
The matter becomes much more convoluted, when different groups around the world use the same indigenous
knowledge.38 For example, how does one determine who invented a herb that is used by the Maasai in Kenya, the
Pygmies in West Africa, and the Amazonian Indians?
These topics should be looked at further in international forums like the WTO's Committee on Trade and the
Environment and the World Intellectual Property Organization (WIPO).39

3.1 | TRIPs and CBD

The CBD was signed in 1993 with the goal of preventing signatories from using developing nations' bio‐wealth and
traditional indigenous knowledge unfairly.
The aims of CBD are:

• Member states' territorial rights to their biological resources;

• Authorization from the nation of origin to facilitate foreign access;
• equitable sharing of revenues and technical assistance among member countries;
6 | SHARMA ET AL.

• IPR regulation should not conflict with the CBD's goals.

Farmers' rights are the primary instrument for protecting the rights of genetic resource providers, according to
the FAO Global Plan of Action. The CBD, on the other hand, benefits a wide range of people. CBD advised the type
of gains, mode of fair sharing among the inventor, creator and acre taker of the traditional indigenous knowledge.40
Before the creation of CBD, all genetic and biological resources were considered to be part of “humankind's
universal heritage,” requiring no access regulation or obligation to share. The plant Rosy Periwinkle, which is native
to Madagascar and is used to cure Hodgkin's disease and juvenile leukemia, has caused the most controversy in this
area. Rosy Periwinkle was consequently grown in almost all of Texas to aid in the manufacture of essential drugs,
with no compensation or profit sharing for the local community.41 CBD, on the other hand, recognized a state's
sovereign power over its own biological resources and the need to provide a mechanism for equitable sharing of
those resources.
The CBD is one of the most important international mechanisms for preserving and protecting the genetic
resources and biological diversity, and provides the way for long term use of use of its components.42
It's worth noting that several industrialized countries throughout the world signed the Uruguay Round of
General Agreement on Tariffs and Trade virtually (GATT) simultaneously in 1994. The GATT formed the WTO and
produced a number of trade agreements, notably the TRIPs agreement. IPR was only incorporated as an element of
worldwide multilateral trading through a set of comprehensive disciplines in the Uruguay Round of the GATT. As a
result, in 1915, the TRIPS Agreement was established, which is the most comprehensive multinational agreement
on IP. The TRIPS agreement now has 164 signatories. Since 1994, India has been a signatory to the TRIPS
agreement.
Stakeholders noticed that there could be a conflict between provisions in the TRIPS agreement and the CBD in
some scenarios. It was also discussed if allowing CBD to take precedence over the goal of the TRIPS agreement
would render CBD ineffective. For example, article 16.5 of the CBD states: The contracting parties, recognizing that
patents and other intellectual property rights may have influence on the implementation of this convention, shall
cooperate in this regard subjects to national legislation and international law to ensure that such rights are supportive of
and do not run counter to its (CBD's) objectives.43

4 | BIOLO GICAL DIVE RSITY P ROTE CTION I N I NDIA

All CBD contracting states were obligated to establish national legislation to carry out the goals set forth in the
agreement. Guidelines on access and benefit sharing, known as the “Bonn guidelines,” were released in April 2002
for the purpose of providing direction on which a national framework might be established. The guideline provides
the ingredients of a transparent and predictable framework for both users and providers of genetic resources,
bridging the gap between policy formation and implementation.44 After ratifying the CBD in 1992, India recognized
its sovereign rights to use its own biological resources and passed the Biological Diversity Act of 2002 (BDA Act),
which allows other parties subject to national legislation to regulate genetic resources.

The main key goals of BDA Act's are:

• Protection of biological diversity.

• long term use of genetic resources of biodiversity.
• equitable sharing of benefits obtained from the use of biological resources.

As a result, the BDA Act was passed by Parliament and insured that it would be implemented through a
decentralized three‐tier system at the national, state, and municipal levels.
SHARMA ET AL. | 7

The Government of India established the National Biodiversity Authority (NBA)45 at the national level. NBA is an
autonomous and statutory agency that provides enabling/facilitative, regulatory, and advisory services to appropriate
Government of India agencies and ministries on issues of biodiversity conservation, sustainable use, and fair and
equitable sharing of benefits emerging from such usage. NBA operates on the basis of a consultation approach
including experts and stakeholders. State Biodiversity Boards (SBBs) are formed by state governments,46 while
biodiversity management committees (BMCs) are formed by local bodies.47,48

4.1 | Bridging IP and biological diversity

It's worth noting that, despite the fact that India has had a patent system in place since 1970, it was significantly
altered following the TRIPS Agreement. India had a grace period till 2005 as a developing country to ensure that its
national legislation complied with its international responsibilities. With this in mind, section 6 of the BDA Act
establishes a link between the BDA Act and the Patents Act, which states: application for intellectual property rights
not to be made without approval of national Biodiversity Authority.
This rule has the immediate impact of prohibiting the filing of a patent application containing biological
resources49 obtained from India, made in India, without first obtaining NBA clearance.
However, in practice, NBA permission is not obtained before the filing of such an application, and such an
application must be filed in order for the patent to be awarded. In other words, in the absence of NBA approval, a
patent application filed in India containing biological resources accessed from India will be denied. Furthermore, the
clause requires an applicant to obtain NBA approval before filing a patent application outside of India. In some
situations, a patent application for an innovation incorporating biological materials received from India may have
been filed outside of India without NBA clearance.
In such circumstances, it has been observed that, when and if a matching application is filed in India, the
preceding application is viewed as a reason of objection in the absence of NBA permission.
While granting the appropriate approval under section 6 of BDA's act, NBA may enforce profit distribution, free
royalty, or both, or impose other conditions including the fair sharing of monetary gains arising from the marketable
utilization of such rights. The state biological board also keeps a close eye on projects and commercial uses of
biological resources, checking to see if prior notice has been given.

5 | F UT UR E P E R S PEC TI V E RE L A TE D T O NAT I O N A L BI O DI V E R S I TY
A UT H OR I TY

It is good that both the NBA and IP have acknowledged the apparent contradiction and are actively working
together to ensure a smooth implementation. However, a few faults must be overcome to have a smoother
coordination that does not jeopardize the innovator's motivation or benefit sharing with the local community.
As previously stated, under the Act's current implementation, any person (as defined under section 3[2] of the
Act) desiring access to biological resources, whether for research, commercial use, or bio‐survey and bio‐utilization,
must apply for an approval to NBA under section 3 via Form 1 of the Act.
Regulation 2 of the rule on use of genetic resources and related indigenous knowledge and profit sharing
regulation 2014, as well as Rule 14 of the BDA regulations, governs benefit sharing for such access.
Section 7 of the Act states that before obtaining biological resources for the purpose of bio‐survey and bio‐
utilization for commercial purposes, any person who is an Indian or a body, cooperative, association, or organization
registered in India must notify the relevant SBB.
If a person desires to apply for an IPR for an innovation produced utilizing a biological resource accessible under
Section 3 or 7, he must request approval from NBA under Section 6 by filling out Form 3 under the Act.50
8 | SHARMA ET AL.

5.1 | Opportunities within TRIPs

In spite of boosting the growth of present IPR status, there are few aspects in TRIPs that communities and nation
can use to save their interests against powerful industrial‐commercial forces:

• Article 8 authorizes lawmaking actions to protect public health/nutrition and the public interest; while
environmental protection is not officially mentioned, it might be consider as an important part of the “public
interest.”
• Article 27(2) allows for the exclusion of inventions from patentability when commercial use is required to protect
the environment from “severe prejudice.”
• Article 27(3) allows countries to spared plants, animals and plant varieties, from patentability if they have another
“effective” form of IPR for those types.
• Article 22 permits for the preservation of “geographical indications” that define products. This could aid in the
protection of some items that are intimately linked to the places where they were created (as has been done, for
instance, with champagne). In this context, countries like India are already exploring domestic legislation.

As previously stated, powerful countries are likely to define what is “effective,” in which case the patent‐like
regime recommended by UPOV might possibly be formed.51

5.2 | Flexibility within CBD

As per above discussion, both Article 16(5) and Article 22 of the CBD give governments certain mobility when it
comes to IPRs. If a government can show that IPRs are incompatible with conservation and sustainable use goals, as
well as equitable benefit‐sharing, it should be justified in refusing them. However, because TRIPs also forms
international law for the purposes of signature, with disclaimer “subject to national and international law” make this
impossible. Now the main point comes into picture that out of TRIPs and the CBD, which holds legal precedence?
In the event of a conflict between their terms, it is hard to conclude that TRIPs, as the later accord, would trump
the CBD under international law. However, because the CBD concentrates on public interest and ethical
prevention, which TRIPs accepts as acceptable justifications for preventive measures, it might be argued that the
CBD's regulations should take priority over TRIPs'. No current case in the international arena has yet been used to
test the interface of the respective accords.
The most significant CBD legislation may be Article 8(j), which requires countries to protect and preserve
traditional and indigenous community knowledge, guarantee that such communities are informed before using their
expertize for wider societal rewards, and motivates fair and equal sharing of benefits resulting from such use. In this
light, it is important analysing whether a state could question another's IPR regime on the premise that it does not
give appropriate safeguards for indigenous or local communities' informal creations, so infringing Article 8j of the
CBD. Can India, for example, bring a general challenge to the US patent regime, citing the turmeric patent as an
example?52

5.3 | Changing IPR regimes

Changes to existing IPR frameworks can be justified using a mix of appropriate TRIPs provisions and the CBD to
preserve the national interest. Many people have claimed, for example, that in addition to the standard
requirements of novelty, and so on, the following information should be required of an IPR application:
SHARMA ET AL. | 9

• Proof of previous informed permission from the nation and community of origin (Articles 15(5) and 8(j) of
the CBD);
• Where appropriate, details of incentive agreements reached with the country of origin (Article 8(j) of the CBD)
• Where relevant, details of benefit‐sharing agreements made with the community of origin (Article 8(j) of
the CBD).

As per Indian proposal, all IPR requests relating to biodiversity and biodiversity‐related information should be
placed on the CBD's Clearing House Mechanism website, permitting concerned governments, tribes, or people to
object if they suspect their rights are being violated.

5.4 | Other opportunities

Other forms of IPRs could be utilized to protect indigenous and local community knowledge. Copyright and know‐
how licenses are examples of this, for example, the use of such licenses in the case of the Aguaruna people of Peru.
Many international policies, such as the ILO Convention 169, FAO Undertaking on Plant Genetic Resources, and the
UN Draft Declaration on the Rights of Indigenous Peoples could be utilized to offset the threat posed by present
IPR regimes.53

Perhaps the most important thing is to guarantee that the precautionary principle is effectively
implemented inside international systems. The principle 15 is also adopted in the CBD Preamble.
“Where there are worries about significant or persistent harm, a lack of complete scientific assurance
shall not be used as a reason for deferring cost‐effective efforts to prevent environmental
degradation,” states Principle 15. However, no significant consideration has been given to
developing a standard to implement the principle within the CBD. To begin, it should be determined
whether IPRs pose a major danger in theory. It appears that they do, based on the debate above. In
any case, countries and communities may object that those enforcing IPR systems face the onus of
responsibility in proving that they do not pose a risk.

One question usually raised by critics of the global implementation of current IPR laws is what rewards will
exist for further innovation if IPRs are not given. The financial gains from IPRs (by granting a market monopoly for a
length of time) are thought to be the main or primary encouragement for innovation in this field. This premise is not
supported by empirical finding.
For the bulk of humanity's time on the planet, invention has been driven by factors other than personal financial
gain, such as survival, goodwill, social recognition, and power. Traditional healers, farmers, and others are still
inspired by a sense of public good and sharing in many cultures, albeit it is not universal. Nonmonetary rewards,
such as customary land security, social recognition and prizes, and other nonmonetary benefits, have been proven
to stimulate innovation more than monetary gain in studies of community involvement in biodiversity management
and restoration use.54

6 | S TR E N GT HE NI N G TH E S Y N E R GI E S

6.1 | What is the way forward?

Following are some recommendations for communities and governments based on the preceding arguments:
10 | SHARMA ET AL.

1. Strive to widen the scope of existing “public interest” platform in IPR regimes, including sui generis systems plant
variety protection schemes and campaigning for the preventive principle to be applied to all trade and other
activities;
2. Suggestion for providing maximum flexibility in applying TRIPs article 27.3 (b) through which the states have the
options to completely avoid all the living form patent protection and further follow sui generis plant variety
protection schemes which will be effective for both country as well as the local community.
3. Attempt for thorough evaluation of the relation between IPR and biodiversity, and further the observation of
evaluation report shared among the international sectors involving in the mentioned field.
4. Under the regimes of IPR, one should disclose all the information about the biological substance namely, the
source of origin and also the details about the TK of that biological substance.
5. One can challenge the government and other commercial groups at international platform who involved in the
violation of article 8 (j) and other CBD rule and force them to follow the rules of article 16.5 and 22 to protect
and preserve biodiversity.
6. Constitute and international agreement applicable to all countries to protect and preserve the indigenous TK and
proved fair profit sharing to all the preserver and creator.
7. Revise the FAO Plant Genetic Resources Undertaking with new beneficiaries and other key step to protect and
sustainable use and fair profit sharing of genetic resources.
8. Constitute and apply domestic rule and regulation for biodiversity and genetic resource protection which in turn
secure the traditional community.

7 | C ONC LUS I ON S

Life on Earth is defined by its biological diversity. It is the bedrock of long‐term development. Local plant varieties and
knowledge systems can be effectively protected using IPR. Constitute and encourage following IPR framework to
commercialize seed production, monoculture, and protection of new plant species, other microbes, and genetically
modified organisms (GMO). The necessity of documenting indigenous knowledge in writing, which can then be used to
dispute a patent claim on knowledge that is already in the public domain, is emphasized in this article.
Second, it emphasizes the value of geographical indications which is a part of IPRs, other than patent. These
may be more useful to indigenous groups looking to control access to their resources since they may be applied to
knowledge that emerges through time and with participation from the entire community. This raises the prospect of
broadening the TRIPs Agreement to require patents to identify the source of genetic resources and the use of
indigenous knowledge, as well as the consideration of sui generis forms of intellectual property, such as community‐
based rights, to enable equitable benefit sharing.
It should be remembered, however, that whatever the political balances were at the time of the TRIPs
Agreement's discussions, the Agreement is obligatory on sovereign signatories as a voluntary assumption of rights
and obligations, and should be accepted as such. However, given the member countries' legitimate socio‐political
and environmental concerns, a debate on the nature of the protections and exceptions that can be carved out is
required.

A C KN O W L E D G M E N T
All the authors are highly thankful to the DC, MSME, Government of India for providing financial help. Authors are
also grateful to the Chhattisgarh Council of Science and Technology (CCOST), Raipur, Chhattisgarh for providing
institutional facility to carry out the project.

CO NFL I CT OF INTERES T
The authors declare no conflict of interest.
SHARMA ET AL. | 11

END NOTES
1
Biodiversity Act, 2002, No. 93 of 2002 (Ministry of Environment and Forests, Government of India, New Delhi) 2002.
2
P Pushpangadan, V George, TP Ijinu, and MA Chithra, ‘Biodiversity, Bioprospecting, Traditional Knowledge, Sustainable
Development and Value Added Products: A Review’ (2018) 7(1) JTMCN 1.
3
MA Gollin, ‘An intellectual property rights framework for biodiversity prospecting’ in WV Reid and others (eds),
Biodiversity Prospecting: Using Genetic Resources for Sustainable Development. (World Resources Institute 1993),
pp. 159–198.
4
MG Bhat, ‘On biodiversity access, intellectual property rights, and Conservation’ (1999) 29 EE 391.
5
Agreement on Trade Related Aspects of Intellectual Property Rights, Marrakesh Agreement Establishing the World
Trade Organisation, Annex 1C, 33 I.L.M.81 (1994) (hereinafter the TRIPs Agreement).
6
Convention on Biological Diversity, adopted June 5, 1992, A/CONF.151/26, 31 ILM 818 (1992) (hereinafter the CBD).
7
A Kothari, RV Anuradha, ‘Biodiversity and Intellectual Property Rights: Can the Two Co‐Exist?’ (1999) 2(2) JIWLP 1.
8
Genetic resources include “materials of actual or potential value, containing functional units of heredity and of
microbial, plant, animal or other origin” (OECD, 1996).
9
J Mugabe, and others, Managing Access to Genetic Resources: Towards Strategies for Benefit Sharing, Biopolicy
International, No. 17 (ACTS Press 1996).
10
D Posey, and G Dutfield, Beyond Intellectual Property: Toward Traditional Resource Rights for Indigenoris Peoples and Local
Communities (International Development Research Council 1996).
11
RV Anuradha, ‘IPRs: Implications for Biodiversity and Local and Indigenous Communities’ (2001) 10 (1) RECIEL 27.
12
Ibid.
13
S Prakash, ‘Towards a Synergy between Biodiversity and Intellectual Property Rights’ (1999) 2 (5) JWIP 821.
14
Ibid.
15
B Tobin, Certificates of Origin: A Role for IPR Regimes in Securing Prior Informed Consent (Sociedad Peruana de Derecho
Ambiental 1995).
16
Ibid., 13.
17
Ibid., 4.
18
S Gudeman, ‘Sketches, qualms, and other thoughts on intellectual property rights’ in SB Brush, D Stabinsky (eds),
Valuing Local Knowledge: Indigenous People and Intellectual Property Rights (Island Press 1996).
19
M Ruiz, ‘ Intellectual Property Rights and Biodiversity: Procesess and Synergies’ Background paper for Workshop on
TRIPs and CBD Global Biodiversity Forum Cancun, Mexico, September 5‐7, 2003.
20
Ibid., 7.
21
Ibid., 6.
22
Ibid., 11.
23
Annex IC: Agreement on Trade‐Related Aspects of Intellectual Property Rights of the Final Act Embodying the Results
of the Uruguay Round of Multilateral Negotiations, Marrakesh Agreement establishing the World Trade Organization
(WTO), 15 April 1994. Hereinafter referred to as the TRIPs Agreement.
24
Ibid.
25
CBD, Article 8(j)). <https://www.cbd.int/convention/articles/?a=cbd-08> accessed on 21.12.2021.
26
MJ Huft, ‘Indigenous People and Drug Discovery Research: A Question of Intellectual Property Rights', 89 North
Western University Law Review (1995), 1678, at 1723.
27
RJ McNeil and MJ McNeil, ‘Ownership of Traditional Medicine: Moral and Legal Obligations to Compensate for Taking’,
North‐East Indian Quarterly (Autumn 1989), 30.
28
UNDP, Human Development Report 1999, at 57.
29
UNDP, Human Development Report 1999, at 70.
30
AE Caroll,‘Not Always the Best Medicine: Biotechnology and the Global Impact of US Patent law’, (1995) 44 Am UL Rev
(Summer), 2433.
31
UNDP, Human Development Report 1999, at 73.
12 | SHARMA ET AL.

32
F Abott, ‘Protecting First World Assets in the Third World: Intellectual Property Negotiations in the GATT Multilateral
Framework', (1989) 22 VJTL 689.
33
J Boyle, Shamans, Software and Spleens: Law and Construction of the Information Society (1996), at 124.
34
RP Merges, ‘Intellectual Property in Higher Life' (1998) 47 MLR, 1051, as cited in RP Merges, Patent Law and
Policy (1997).
35
Ibid., 11.
36
Ibid., 33.
37
Ibid., 10.
38
Ibid., 11.
39
Ibid., 13.
40
Ibid., 11.
41
JAR Nafziger, RK Paterson, and AD Renteln, Cultural Law: international comparative and indigenous (Cambridge
University Press, 2010).
42
H Zedan, Executive Secretary, Convention on Biological Diversity, The WIPO Seminar on International Property
Development, 2005.
43
S Singh, ‘Biodiversity Laws As A Means To Protect Traditional Knowledge: Issues, Challenges And Success Stories’
(2020) 11 (01) IJLT (Part‐III) 226.
44
Ibid., 40.
45
Section 8: Establishment of National Biodiversity Authority.
46
Section 22: Establishment of State Biodiversity board.
47
Ibid., 41.
48
Section 41: Constitution of Biodiversity Management Committee.
49
Indian Patent Office (IPO) has also issued Guidelines for Processing of Patent Applications Relating to Traditional
Knowledge and Biological Material on 18th December 2012.
50
Ibid., 41.
51
Ibid., 7.
52
Ibid.
53
Ibid., 10.
54
Ibid., 7.

A U T H O R B I O G R A P H IE S

Dr. Rahul Sharma received his PhD degree from Pt. Ravishankar Shukla University, Raipur, India,
in 2016 in physico‐organic chemistry with Prof. Kallol K. Ghosh. Presently, he is working as
Project Scientist at Patent Information Centre (PIC) with Dr. Amit Dubey, Scientist ‘D’,
Chhattisgarh Council of Science and Technology, Raipur, India. His research interests include
organic synthesis, medicinal chemistry, surfactants, micellar kinetics and oxime‐based AChE
reactivators.

Lavanya Madhusoodanan completed her Master's Degree in Medical Biotechnology from Pt.
J.N.M. Medical College, Raipur, India in 2019. Presently she is working as a Junior Research
Fellow at Patent Information Centre (PIC) with Dr. Amit Dubey, Scientist ‘D’, Chhattisgarh
Council of Science and Technology, Raipur, India. She is pursuing her Ph.D. in Biotechnology
with Dr. Ashish Saraf from MATS University, Raipur. Her research interests include proteomics
for biotechnology, Bioinformatics and Medical Biotechnology.
SHARMA ET AL. | 13

Patrika Soni received her master's degree in Biochemistry from the Devi Ahilya Vishwavidya-
laya, Indore, India in the year 2020. At present, she is working as a Junior Research Fellow in
Patent Information Centre (PIC) project with Dr. Amit Dubey at Chhattisgarh Council of Science
and Technology, Raipur, India. Her area of interest comprises of Biochemical analysis, Molecular
biology, Tissue Propagation.

Dr. Amit Dubey is Deputy Director and in charge of Central Laboratory Facility and Intellectual
Property Rights Centre at Chhattisgarh Council of Science and Technology, Raipur, India. He did
his Ph.D. in Biotechnology and published a number of research articles of high repute. His areas
of interests are Bio‐fertilizers (Microbial Inoculants), Fermentation Technology, Phytochemicals,
Mushroom, Tissue Culture and Environmental Studies.

How to cite this article: Sharma, R., Madhusoodanan, L., Soni, P., & Dubey, A. (2022). Biodiversity and
intellectual property rights: Conflict or synergy. The Journal of World Intellectual Property, 1–13.
https://doi.org/10.1111/jwip.12234

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