After reading this article you will learn about the trade and biodiversity conservation conflict.
In the pre TRIPS era, India designed its patent system in accordance with its development priorities. In large measure this system was a successful one. The new regime, which is supposed to be fully implemented in 2005, allows India as with other developing countries-much less freedom to tailor the system to fit its perceived national interest.
Nonetheless, the IRP and biodiversity management laws that the government has drafted and enacted are serious attempts to reconcile the country’s international commitments with its concerns about access to genetic resources, sustainable use, and equitable benefit sharing.
To the extent that such laws are TRIPS-compatible, which they largely appear to be, the global IPR regime does allow a significant measure of flexibility. But many developing countries may encounter external pressure that inhibits them from taking full advantage of this. India’s ability to resist such pressure is relatively strong given its importance as an emerging economic power with a huge domestic market.
Furthermore, successive governments have faced very strong parliamentary and extra-parliamentary criticisms whenever they have sought to introduce legal instruments to implement the patent and Plant Variety Protection (PVP)-related provisions of TRIPS, ensuring that the TRIPS implementation process is very slow.
So is the overall effect of the global IPR regime an allocation of rewards and incentives that will hinder or help India to add value to its biogenetic resources while encouraging conservation and the sustainable use of biodiversity?
If we consider first the case of PVP, it seems likely that while such a system will encourage crop breeding for commercial agriculture, the interests of small farmers will be disregarded, and research will focus mainly on the major crops and on a fairly narrow pool of germplasm.
It is unlikely that a small number of Trans National Companies (TNC’s) will dominate the industry in the near future, but the possibility of this happening within the next 10-20 years should not be discounted either.
While total agricultural productivity may increase, at least in the short term, and this may be reflected in the trade indices, the system is likely to accelerate the mono-culturisation of Indian agriculture to the detriment of the county’s biodiversity.
It is absolute essential that the public sector continues to carry out research oriented programmes towards the interests of the poorer farmers, including the crop species that they cultivate, most of which are native to India.
In short, PVP is likely to help India add value to its biogenetic resources but this will almost certainly be detrimental to local efforts to conserve and sustainably use the resource base in all its diversity, and may well have adverse distributional implications.
Turning to patents, the prognosis is promising for biotechnology products and processes-as long as the system is designed with care. This is because of the tremendous importance of patents for protecting investments in such research, for attracting further investment from outside, and in developing strategic partnerships with other firms.
As a country that has achieved impressive advances in biotechnology and with a huge natural resource base, India may now be ready for a patent regime allowing for the protection of bio- technological inventions. And because of the exceptions that TRIPS allows, such as plants and animals, India can, and definitely should, take a step-by-step approach to expanding its patent system, starting with micro-organisms.
Of course there is a danger of process innovation being blocked by TNCs aggressively taking out product patents in huge volumes. Probably the best response is for India to introduce a competition regime to ensure that no single firms or corporate networks exploit their patent portfolios to dominate the agro and health biotechnology markets.