TCS Daily

TCS Convention on Biodiversity Coverage:Bangkok's Mouse Trap

By Duane D. Freese - February 16, 2005 12:00 AM

It used to be said that if you built a better mouse trap the world would beat a path to your door, they were coming to convey riches upon you. Today, in Bangkok, though, representatives from around the world are beating a path to inventors doors to steal the profits of their inventions.

Ministers and nongovernmental organizations from 188 countries -- signers of the Convention on Biological Diversity -- are negotiating in Thailand through Feb. 18 a new regime for access to and benefit-sharing from global genetic resources.


The CBD was one of two conventions coming out of the United Nations grand Earth Summit on sustainability and the environment in Rio de Janeiro in 1992, the other being the Convention on Climate Change.


While that latter convention aim was to protect the world from human-induced climate change, the CBD purpose is to protect the worlds rich biological diversity from destruction by human hand. The protection was broadly defined. It includes not only protecting the about 1.75 million known species of plant, animal, insect and microorganism, but also the estimated 3 million to 100 million that may exist, along with genetic differentiations between species, protection of ecosystems and of communities of ecosystems and humans.


Signatories to the convention basically have agreed to provide such protection within their own borders. The problem -- especially for developing countries -- is how to pay for it.


And thats what has the delegates in Bangkok beating a path to inventors doors.


A group of 17 developing nations, which possess about 70 percent of the worlds estimated biodiversity in plants, animals, insects and microorganisms, are pushing to make their sovereignty over that diversity a part of the patent process.


Their argument for doing so follows this line. The world owes them something to maintain their biodiversity, as theyve agreed to do in signing onto the CBD. In order to become members of the World Trade Organization, these countries have agreed to rules that require them to provide basic patent protections for intellectual property. Why not, the thinking goes, wed the two?


How? Well, make it a part of international patent law that inventors disclose the origin of genetic material for a product or the traditional knowledge of indigenous peoples that may have helped in the invention in the application. That way these countries could garner royalties from such patents while protecting against biopiracy -- defined as the unauthorized and uncompensated taking of biological resources and traditional knowledge.


It almost makes perfect sense -- until you really think about what they are trying to protect and what patents are supposed to protect.


Patents are meant to protect something new, and novel, and useful. You cant patent a life form that occurs naturally in nature. But a genetically engineered hybrid? Yes. Because youve invented something new. You cant patent a persons DNA. But a medicine or cancer or health cure that makes use of a DNA map? Yes, because its new and novel and useful. You cant patent or copyright common knowledge. But a medical therapy built upon it? Yes, as long as its not just what was done before.


There is a key difference between patentable genetic inventions and general genetic resources. The patent on a genetic invention lapses. Twenty years is the limit on a patent -- which usually translate into 10 years of useful protection by the time a genetic invention gets to the market. The protection for the genetic resources of biodiversity supposedly is to go on forever. Protecting items in perpetuity with instruments of limited time frames wont work.


And then there is the issue of costs. The notion among those pushing for a patent protection for biodiversity is that the genetic resources and traditional knowledge are just exploding with cures and therapies that are worth a green mint.


They forget about all the costs. On average more $800 million goes into every new drug thats brought onto market.


Why the high cost? Because it is rare to find a direct one to one correspondence between a product in nature and a new wonder drug. Indeed, on average, more than a 100 failures go into creating a single marketable commodity. And only about one in five of those that make it to market ever make a big profit. And the profits from those blockbusters then must pay for the development of new products.


If it were so easy to develop such products, then biodiverse nations would not suffer as they do today from maladies from AIDS to malaria to river blindness to malnutrition that lay waste to their people.  


The majority of the actual cures theyve gotten have been derived from money spent deciphering the clues of nature, a lot of intelligence and sweat and tears and years of frustration in biotech products -- products that are today serving all of mankind.


What the developing countries need isnt access to benefits from biotechnology in the form of royalties but greater incentives for invention within themselves -- and more open markets in the developed world for what they produce.


The ugly fact is that just as protection of the environment is being used here as an excuse to rob inventors of the just rewards of their efforts, so it has been used to deprive developing countries of markets for their products.


A study by the International Trade Commission in 2001 of world trade found the least developed countries were the most discriminated against by the environmental regulations limiting imports in developed nations. Fully 40 percent of their exports were affected, mostly by gaming the health and safety exceptions in trade laws to deny entry to poor countries' agricultural products.


It was because of such gaming that officials of Indias Commerce Department at the time of the ITC study said India stoutly opposed the linkage of trade and environmental issues as disguised protectionism. Yet, in Bangkok, its environmental ministers are linking trade and environment by pushing biodiversity protection into patents.


Biodiversity will get protection from invention, not by royalties; invention that increases the wealth of all nations, providing the wherewithal for protection. Thats the better mouse trap Bangkoks negotiators need to protect.



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