International Regulatory Regime Of Biopiracy: Focused On CBD And Trips

Generally Speaking, Biopiracy refers to the phenomenon where the technicallyadvanced western companies (in particular, the pharmaceutical company and thebreeding company) obtain, develop and commercialize the genetic resources (GR)and related traditional knowledge (TK) without consent from the countries (usuallythe developing countries) and the indigenous or local communities where the geneticresources and related traditional knowledge is vested in and exercise exclusive controlover the economic benefits stemming from the commercialization of the GR and TKvia intellectual property rights. It is noteworthy that the developing countries andindigenous or local communities where the GR and TK is located have not receivedany benefits from the exploration of their resources, instead, they have to pay theexpenses for drug， seeds and other products, which is unacceptable. This paper isaimed to discuss the international regulatory regime of biopiracy via analysis of thelegislative background, implementation and different opinions of the parties ormember states of the Convention on Biological Diversity (CBD) and Agreement onTrade-related Aspects of Intellectual Property Rights (TRIPS) for the purpose ofidentifying the achievements, deficiency and the major problems in the internationalregulatory regime of biopiracy.In addition to the preface and the conclusion, this paper is divided into fourchapters. Chapter1examines the existing definitions of biopiracy and analyzes thecomponents of biopiracy and the prejudice brought by biopiracy against thedeveloping countries through briefing the Enola Bean case. Biopiracy reflects twosets of confrontation, namely the developed country versus the developing countryand the exclusiveness of intellectual property rights versus the benefit-sharing. It isalso pointed out that the GR and related TK is what people are looking for during thebiopiracy. Section2dig out the reasons of biopiracy, reviews the evolving of thelegal status of genetic resources, the expansion of the patentable subjects and theconflicts between the TK and the existing intellectual property system.Chapter2introduces the background of the CBD, CBD’s redress of the legalstatus of the genetic resources and the development track of the Acess andBenefit-sharing (ABS) and provides detailed analysis of the major ingredients of ABS,including prior informed consent, mutual agreed terms and the monitoring of theenforcement of CBD. Taking into consideration the cross-border nature of thebiopiracy, the Author look into the major problems derived from the implementationof ABS, including the negative attitude of the developed countries towards theregulation of biopiracy and the deficiency of the monitoring on the international level.In view of the close relationship between ABS and intellectual property rights, theAuthor also reserves one section to comment on the contribution of the WorldIntellectual Property Organization.Chapter3reveals the negotiation and consultation among the member statesunder the TRIPS. In the review of Article27.3(b), the member states have carriedout in-depth discussion over the patentability of the invention in life form, theprotection of TK and the feasibility of the Sui Generis legal regime. In addition, theAuthor discusses the possibility of protecting TK under TRIPS and the proposals fromthe member states. The Author also concentrates on the different stances on thedisclosure requirement of GR in the patent application based on the relationshipbetween CBD and TRIPS.Chapter4gives attention to the resource endowment of China and the biopiracycases occurred in China and opines on China’s position in international negotiations taking into account of the development of China’s biotechnology. The Authoranalyazes the domestic laws on the administration of access to GR and the thirdrevision of the Patent Law which incorporates the GR disclosure requirement inpatent application and provides insight into the mechanism of the disclosurerequirement and its actual effects.