Biotechnology and Intellectual Property Rights – College
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belongings every bit good as the range of rights with regard to those affairs. For illustration. a owner of a house has legal rights to possess. usage. modify. destroy. transportation. sell. or lease the house. Assorted Torahs and ordinances may forbid the householder from painting his house in assorted colorss. runing a concern from his place. or maintaining a Equus caballus in his backyard.
Since belongingss are aggregations of legal rights. the belongings government is a societal establishment that serves peculiar intents in society ( Feinman. 2000 ) . We are pertinent to believe of objects. such as. land. as the belongingss. but these objects merely have their position as belongings in relation to people in society. If no people were about. land would non be someone’s belongings ; it would merely be the land. We mark boundary lines and make workss to stand for the societal and legal position of a person’s rights and responsibilities with regard to the land.
Therefore. the construct of belongings is a three-place relationship between an object. an person ( i. e. a individual. group of people. or corporation ) . and society. Improvement and development of new thoughts is primary to the advancement of grounds based clinical pattern. Intellectual belongings rights are basic to the protection of bioinformation and biotechnology but may halter advancement and dispersion of information. At the same clip as the application of patents and right of first publications are common topographic point in companies gaining from information engineering. their application in the field of biotechnology is less understood and publicized. Intellectual belongings ( IP ) is a term mentioning to a figure of distinguishable types of creative activities of the head for which belongings rights are documented—and the corresponding Fieldss of jurisprudence.
Under rational belongings jurisprudence. proprietors are granted certain sole rights to a assortment of undefinable assets. such as musical. literary. and artistic plants ; finds and innovations ; and words. phrases. symbols. and designs. Common types of rational belongings include right of first publications. hallmarks. patents. industrial design rights and trade secrets in some legal powers ( Murashige 2002 ) . Although many of the legal rules regulating rational belongings have evolved over centuries. it was non until the nineteenth century that the term rational belongings began to be used. and non until the late twentieth century that it became usual in the United States.
The British Statute of Anne 1710 and the Statute of Monopolies 1623 are now seen as the beginning of right of first publication and patent jurisprudence severally ( Cimoli. 2002 ) . Modern use of the term rational belongings goes back at least every bit far as 1888 with the initiation in Bern of the Swiss Federal Office for Intellectual Property. When the administrative secretariats recognized by the Paris Convention ( 1883 ) and the Berne Convention ( 1886 ) merged in 1893. they besides located in Berne. and besides adopted the term rational belongings in their new combined rubric. the United International Bureaux for the Protection of Intellectual Property.
The organisation later relocated to Geneva in 1960. and was succeeded in 1967 with the constitution of the World Intellectual Property Organization ( WIPO ) by pact as an bureau of the United Nations. It was merely at this point that the term truly began to be used in the United States ( which had non been a party to the Berne Convention ) . and it did non come in popular use until transition of the Bayh-Dole Act in 1980.
Biotechnology and Intellectual Property Rights
Historical Background “The history of patents does non get down with innovations. but to a certain extent with royal grants by Queen Elizabeth I ( 1558-1603 ) for bid constitutional rights. Approximately 200 old ages after the terminal of Elizabeth’s distinction. nevertheless. a patent represents a legal [ right ] obtained by an discoverer supplying for sole control over the production and sale of his mechanical or scientific innovation the development of patents from royal privilege to common-law philosophy. ” In 1818. the Gallic broad theoretician. Benjamin Constant. argued against the late introduced thought of “property which has been called rational. ”
The term rational belongings can be found used in an October 1845 Massachusetts Circuit Court opinion in the patent instance Davoll et Al. v. Brown. . in which Justice Charles L. Woodbury wrote that “only in this manner can we protect rational belongings. the labours of the head. productions and involvements are every bit much a man’s own…as the wheat he cultivates. or the flocks he rears. ” ( 1 Woodb. & A ; M. 53. 3 West. L. J. 151. 7 F. Cas. 197. No. 3662. 2 Robb. Pat. Cas. 303. Merw. Pat. Inv. 414 ) . The statement that “discoveries are property” goes back earlier. Section 1 of the Gallic jurisprudence of 1791 declared. “All new finds are the belongings of the writer ; to guarantee the discoverer the belongings and impermanent enjoyment of his find. there shall be delivered to him a patent for five. 10 or 15 old ages. ” In Europe. Gallic writer
A. Nion mentioned propriete intellectuelle in his Droits civils des auteurs. artistes et inventeurs. published in 1846. The concept’s beginnings can potentially be traced back further. Judaic jurisprudence includes several considerations whose effects are similar to those of modern rational belongings Torahs. though the impression of rational creative activities as belongings does non look to be – notably the rule of Hasagat Ge’vul ( unjust invasion ) was used to warrant limitedterm publishing house ( but non writer ) right of first publication in the sixteenth century.
The Talmud contains the prohibitions against certain mental offenses ( farther elaborated in the Shulchan Aruch ) . which some have interpreted as forbiding larceny of thoughts. though the philosophy is chiefly concerned with fraud and misrepresentation. non belongings ( Correa. 2001 ) .
Aims of Intellectual Property Copyright and its importance Intellectual belongings ( IP ) protects ideas. There are four chief types of Intellectual belongings ( IP ) : 1. 2. 3. 4. Patents protect the proficient facet of the merchandise Trademarks protect marks of the bargainer Copyright protects originative stuff such as music and literature Design enrollment protects the ocular visual aspect of the merchandise.
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Copyright jurisprudence varies between states. In the UK it originated from the Statute of Anne 1709. before the passing of the Copyright Act in 1911. The Copyright. Designs and Patents Act of 1988 was statute until October 2003 when the EU issued a directing to admit the impact of electronic information and the cyberspace on IP. Copyright jurisprudence acknowledges the Godhead of a work as the writer with the right to regulate how the work is disseminated and prevents deformation of the work by 3rd parties. This applies to literary plants ( such as scientific documents ) every bit good as artistic creative activities and even computing machine plans. Copyright is automatic in the UK on creative activity of an original work. It will protect the work itself but non the thought behind it.
Therefore the thought of hip resurfacing would non be protected but the Birmingham Hip Resurfacing constituents would be. Commissioning or freelancing does non act upon ownership which is still sole to the original writer. For literary plants such as scientific documents. computing machine plans. commercial paperss and song wordss the Copyright. Designs and Patents Act of 1988 provinces that the continuance of right of first publication is 70 old ages from the clip the work was written or first published in the public sphere.
For typographical agreements of published editions such as magazines. periodicals and diaries. copyright continuance is 25 old ages from the terminal of the calendar twelvemonth of publication. A scientific paper prior to publication can be registered for right of first publication that will last for 70 old ages. On publication. the writer transportations copyright to the diary which so holds the right of first publication for 25 old ages.
Therefore the writer has the right to be identified as the writer of the work and to object to critical intervention. It is an offense to copy. adapter show the work in public without the consent of the proprietor. However. the work can be copied for the intents of research or educational intents without conflicting on the right of first publication. On entry of a manuscript for publication. most publishing houses require a transportation of copyright understanding. This allows the publishing house to register a individual right of first publication merchandise ( if the paper is attributed to multiple writers ) and protects the writer. editors and publishing houses from copyright misdemeanor due to improper duplicate once the manuscript has been published as portion of a diary.
Writers do non hold to subscribe a transportation of right of first publication as a status of publication and may retain right of first publication of their manuscript but would hold to subscribe a formal statement licencing publication entirely in the relevant diary. Most publishing houses would besides anticipate writers to admit that their work is original and has non antecedently been published to guarantee no right of first publication violation prior to publication ( Elliott. 2007 ) . Writers still retain the proprietary right of their work one time the transportation of right of first publication has been signed over to a publishing house since ‘moral rights’ are conferred to writers by the UK Copyright Act of 1988. Writers are hence credited whenever the publication house uses the work.
Writers can besides reproduce their ain documents provided the publishing house is acknowledged and a commendation provided to the original publication. Most publishing houses would necessitate presentment if the paper is to be used in a volume in which the writer acts as editor or writer. Policiesn sing electronic posters on web sites vary between publishing houses with some leting pre-print posters on the web with a nexus to the publication and recognition. Most
Biotechnology and Intellectual Property Rights publishing houses will let broadcast medium of the published article by the writer provided it is for educational intents and non unfastened entree to the general populace ( Coriat and Orsi. 2001 ) . At the same clip as right of first publication is an automatic procedure on construct of a organic structure of work in the UK. a copyright notice will formalise this procedure. The copyright notice takes the signifier of a copyright symbol © . the twelvemonth the work is published or written and the name of the proprietor. e. g. Copyright © CB Hing 2007. Extra information such as ‘all rights reserved’ or ‘any unauthorised broadcast medium. public public presentation. copyrighting or re-recording will represent an violation of copyright’ can besides be added but are non a necessity to set up right of first publication.
In order to back up the claim of right of first publication. the organic structure of work can be registered with the UK Copyright Service in order to beef up the claim of ownership in instance of difference. Supporting grounds for a claim of right of first publication includes all earlier bill of exchanges of the work. water lines or electronic file remarks every bit good as ‘footprints’ ( computations. errors etc. ) ( Crespi. 2000 ) . Joint plants should include an understanding between co-authors sing ownership of right of first publication.
The chief writer may claim right of first publication and take the work with them if they leave. In the event of one writer go forthing with joint ownership of right of first publication. the staying writers must hold what will go on to the right of first publication ( Murphy. 2002 ) . If the work is produced during employment. the employer will have the work.
However. if the work is free-lance or commissioned. rights will belong to the writer of the work. Once right of first publication has expired. the writer loses rational belongings rights to his work and it is freely available in the public sphere. The work therefore becomes public belongings and no other single can claim right of first publication. An interesting exclusion in the UK is the right of first publication to ‘Peter Pan’ . Lord Callaghan amended the 1988 Copyright Designs and Patents Act to let the right of first publication for ‘Peter Pan’ indefinite position such that any royalties are passed on to Great Ormond Street Hospital. In October 2003. alterations were made to the UK right of first publication jurisprudence in response to a European Union directive and the impact of electronic information sharing ( Coriat and Orsi. 2001 ) .
This has meant that copying for commercial intents where income will be generated is no longer allowed without the consent of the proprietor of right of first publication. However. copying for educational intents. such as libraries. allows limited sums of copying without the consent of the writer. Therefore copying research documents for scientific instruction would be allowed but copying documents to give to private patients would non as this potentially generates income and is classified as a commercial intent ( Azoulay et al. . 2007 ) . Intellectual belongings rights transcend states and the Berne Convention for the Protection of Literary and Artistic Works was introduced in 1886 as an understanding between states to continue this.
The World Intellectual Property Organization ( WIPO ) administers the latest version of the convention. the Paris Act of 1971. There are about 147 members of the World Trade Organization that have agreed to the act. which protects the rational belongings of individuals’ occupant to the member states. Outside of those member states. protection is afforded by a mutual understanding
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inducement. Consequently the writer has rights to protect work from reproduction. version and interlingual rendition ( hypertext transfer protocol: //www. iprcommission. org ) .
These sole rights allow proprietors of rational belongings to profit from the belongings they have created. supplying a fiscal inducement for the creative activity of an investing in rational belongings. and. in instance of patents. wage associated research and development costs.
The being of IP Torahs is credited with important parts toward
economic growing. Economists estimate that two-thirds of the value of big concerns in the U. S. can be traced to intangible assets. “IP-intensive industries” are estimated to bring forth 72 per centum more value added ( monetary value subtractions material cost ) per employee than “non-IP-intensive industries” .
A combined research undertaking of the WIPO and the United Nations University mensurating the impact of IP systems on six Asiatic states found “a positive correlativity between the strengthening of the IP system and subsequent economic growing. ” Other theoretical accounts. such as the Nash equilibrium. would non anticipate that this correlativity needfully means causing: The Nash equilibrium theoretical account predicts that patent holders will prefer to run in states with stronger IP Torahs. In some of the instances. as was shown for Taiwan after the 1986 reform. the economic growing that comes with a stronger IP system might be due to an addition in stock capital from direct foreign investing ( Mooney. 2000 ) .
IPR in the Field of Plant Sciences
Plant breeders’ rights ( PBR ) . besides known as works assortment rights ( PVR ) . are rights granted to the breeder of a new assortment of works that give them sole control over the propagating stuff ( including seed. film editings. divisions. weave civilization ) and harvested stuff ( cut flowers. fruit. leaf ) of a new assortment for a figure of old ages ( Pushpagandhan. 1996 ) . With these rights. the breeder can take to go the sole seller of the assortment. or to authorise the assortment to others. In order to measure up for these sole rights by works breeders’ rights. a assortment must be new. distinguishable. unvarying and stable. A assortment is new if it has non been commercialized for more than one twelvemonth in the state of protection.
A assortment is different if it differs from all other known assortments by one or more of import botanical features. such as colour. tallness. adulthood. etc. A assortment is homogenous if the works features are consistent from works to works within the assortment. A assortment is stable if the works features are genetically fixed and hence remain the same from coevals to coevals. or after a rhythm of reproduction
Biotechnology and Intellectual Property Rights in the instance of intercrossed assortments. The breeder must besides give the assortment an acceptable “denomination. ” which becomes its generic name and must be used by anyone who markets the assortment ( Warner. 2001 ) . In general. works assortment rights are granted by national offices. after scrutiny. Seed is submitted to the works assortment office. which grow it for one or more seasons. to guarantee that it is distinguishable. stable. and unvarying. If these trials are passed. sole rights are granted for a period of 20 old ages ( or 25 old ages. for trees and vines ) .
Annual reclamation fees are required to keep the rights ( Altieri. 2003 ) . Breeders can convey suit to implement their rights and can retrieve amendss for misdemeanor. Plant breeders’ rights contain freedoms from misdemeanor that are non recognized under patent jurisprudence. Normally. there is an freedom for farm-saved seed. Farmers may hive away the production in their ain bins for their ain usage as seed. but this does non needfully widen to brown-bag gross revenues of seed. Further gross revenues for extension intents are non allowed without the written blessing of the breeder. There is besides a breeders’ freedom ( research freedom in the 1991 Act ) that allows breeders to utilize protected assortments as beginnings of initial fluctuation to make new assortments of workss ( 1978 Act ) . or for other experimental intents ( 1991 Act ) .
There is besides a proviso for compulsory licensing to guarantee public entree to protected assortments if the national involvement requires it and the breeder is unable to run into the demand ( Visser et al. . 2002 ) . The United States of America passed the Plant Patent Act in 1930 ( US ) at the pressing of such noteworthy figures as Thomas Edison and Luther Burbank’s widow. Plant patents provided a particular signifier of patent protection. which relaxed certain demands of the public-service corporation patent jurisprudence as applied to asexually reproduced assortments of workss. In 1957. the Gallic Government held a conference in Paris concerned with the protection of new assortments.
This led to the creative activity of the Union Internationale pour La Protection des Obtentions Vegetales ( UPOV ) and acceptance of the first text of the International Convention for the Protection of New Varieties of Plants ( UPOV Convention ) in 1961. The intent of the Convention was to guarantee that the member states party to the Convention acknowledges the accomplishments of breeders of new works assortments by doing available to them an sole belongings right. on the footing of a set of uniform and clearly defined rules. The Convention was revised in Geneva in 1972. 1978 and 1991.
Both the 1978 and the 1991 Acts set out a minimal range of protection and offer member States the possibility of taking national state of affairs into history in their statute law. Under the 1978 Act. the minimal range of the works breeder’s right requires that the holder’s anterior mandate is indispensable for the production for intents of commercial selling. the offering for sale and the selling of propagating stuff of the protected assortment. The 1991 Act contains more elaborate commissariats specifying the Acts of the Apostless associating to propagating stuff in relation to which the holder’s mandate is required. The breeder’s mandate is besides required in relation to any of the specified Acts of the Apostless done with harvested
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stuff of the assortment. unless the breeder has had sensible chance to exert his right in relation to the propagating stuff. or if non making so could represent an “Omega Threat” state of affairs. Under that proviso. for illustration. a flower breeder who protects his assortment in the Netherlands could barricade importing of cut flowers of that assortment into the Netherlands from Egypt. which does non allow works breeders’ rights. because he had no chance to exert any rights in Egypt.
Member states besides have the option to necessitate the breeder’s mandate with regard to the specified Acts of the Apostless as applied to merchandises straight obtained from the harvested stuff ( such as flour or oil from grain. or juice from fruit ) . unless the breeder has had sensible chance to exert his right in relation to the harvested stuff ( Schrell et al. . 2007 ) . The UPOV Convention besides establishes a many-sided system of national intervention. under which citizens of any member province are treated as citizens of all member provinces for the intent of obtaining works breeders rights.
It besides sets up a many-sided precedence filing system. under which an application for protection filed in one member province establishes a filing day of the month for applications filed in all other member provinces within one twelvemonth of that original filing day of the month.
This allows a breeder to register in any one member state within the annual period required to continue the freshness of his assortment. and the freshness of the assortment will still be recognized when he files in other member states within one twelvemonth of his original filing day of the month. However if the applier does non wish to do usage of precedence filing he or she has four old ages in which to use in all other member provinces. demuring the USA. for all species except tree and vine species in which instance he or she has six old ages to do application. See article 10 1 ( B ) of Council Regulation EC No 2100/94 of 27 July 2004 on the website World Wide Web. cpvo. Eu.
The trigger to get down the four or six twelvemonth period is non really the day of the month on which the first filing is made but the day of the month on which the assortment was first commercialized ( World Wide Web. wipo. int ) . The UPOV Convention is non self-executing.
Each member province must follow statute law consistent with the demands of the convention and submit that statute law to the UPOV Secretariat for reappraisal and blessing by the UPOV Council. which consists of all the UPOV member provinces moving in commission. In conformity with these pact duties. the United Kingdom enacted the Plant Variety and Seeds Act 1964. Similar statute law was passed in the Netherlands. Denmark. Germany. and New Zealand. In 1970 the United States followed the lead of 17 Western European states and passed the Plant Variety Protection Act 1970 ( US ) .
This statute law provided protection to developers of novel. sexually reproduced workss. However. the United States originally acceded to the UPOV Convention on the footing of the Plant Patent Act and did non convey the PVP Act into conformity with UPOV demands until 1984 when the Commissioner of Plant Variety Protection promulgated regulations to make so. Since the 1980s. the US Patent Office has granted patents on workss. including works assortments: this provides a 2nd manner of protecting works assortments in the USA. Australia passed the Plant Variety Protection Act 1987 ( Cth ) and the Plant Breeders Rights Act 1994 ( Cth ) . Australian patent jurisprudence besides permits the patenting of works assortments. In entire. 65 states have signed the UPOV
Biotechnology and Intellectual Property Rights
Convention and adopted works breeders’ rights statute law consistent with the demands of the convention. The WTO’s Agreement on Trade-Related Aspects of Intellectual Property Rights ( TRIPs ) requires member provinces to supply protection for works assortments either by patents or by an effectual sui generis ( stand entirely ) system. or a combination of the two. Most states meet this demand through UPOV Convention-compliant statute law. India has adopted a works breeders’ rights jurisprudence that has been rejected by the UPOV Council as non run intoing the demands of the pact.
IPR and Biotechnology
Biotechnology constitutes a new promise of great net incomes as. in the class of familial technology. new merchandises or merchandises with new belongingss can be made. Thus. the attainment of specific biological resources that possess belongingss of commercial concern becomes cherished. This fact. along with the debut of patents on biological stuff. lead pharmaceutical. nutrient. and seed companies in an unprecedented pursuit around the universe for the aggregation of life beings that may be of some usage. runing from dirt microorganisms to animate beings. including human cistrons.
However. the biological stuff is frequently removed in great discretion from the state in inquiry. without even its national government’s consent ( Fowler. 1995 ) . Intellectual belongings is a signifier of cognition that societies have decided can be assigned specific belongings rights ( Commission on Intellectual Property Rights. 2002. p. 11 ) . Intellectual belongings rights ( IPR ) are the rights awarded to persons or organisations chiefly over originative plants: innovations. literary and artistic plants. symbols used in commercialism.
They include patents. hallmarks and right of first publications. geographical indicants. and trade secrets. IPRs are the rights to do. usage. and sell a new merchandise or engineering that are granted for a specific period of clip ( e. g. . 20 old ages ) . entirely to the discoverer or the corporation that files a claim on the inventor’s behalf. “Intellectual belongings rights are either based on originality ( Ianez Pareja. 2001 ) . The basic economic statement warranting the being of IPRs is that. unless an industry can guarantee the capitalisation on its investings in technological development. it will non put in it in the first topographic point.
That would do technological discoveries unattainable. Patents and other IPRs reference this cardinal market failure: if a merchandise takes considerable attempt and research but can be easy copied. it is improbable that there will be sufficient fiscal inducement to give resources to innovation ( Commission on Intellectual Property Rights. 2002. p. 14 ) . By confabulating impermanent market exclusivities. patents allow manufacturers to reimburse the costs of investing and harvest a net income ( Katz. 2005 ) . The first patent on a life being was granted in the US in June 1980. with the granting of a patent to Ananda Chakrabarty. The being in inquiry was a bacteria. Modern Biotechnology and its Applications
a Pseudomonas strain. engineered to incorporate added plasmid DNA. which made it more effectual in scattering oil spills than the of course happening precursor strain. This determination constituted the footing for widening patent application to higher life signifiers. As Crespi ( 2000 ) points out. the determination was “a watershed in the development of patent jurisprudence. as a case in point for extension to cell lines. such as hybridoma that produce monoclonal antibodies. and genetically modified workss and animate beings. ” As stated by Ehrlich and Ehrlich. 1981 ; EFB. 2001. some states are richer than others in footings of biodiversity.
This can be calculated through the figure of bing species of workss and animate beings. Although it is frequently hard to separate the exact ecological function of a individual species in the ecosystem. it is just to accept that the absence of close relations when a typical species is concerned will take to far less overlap in its functional function. The direct instrumental value of biodiversity is demonstrated in the fact that human societies derive many indispensable goods from natural ecosystems such as pharmaceuticals. nutrient points. and constructing stuff. These legion natural ecosystems. composed of a diverse biological base. execute cardinal life-support services. without which life as we know it would discontinue to be.
Several writers highlight the being of direct and indirect economic benefits associated with species saving and point out that species should be preserved because of their beauty. symbolic value. or intrinsic value. Technological discovery including biotechnology and its applications can increase well the instrumental value of biodiversity. as new merchandises based on bing natural resources can now be made. Most of the mega-biodiversity states are developing states. which could gain well in fiscal footings from their wealth in biodiversity.
It besides appears that. in many instances. those extraordinary belongingss of biological resources that now get commercial involvement were already known to autochthonal communities and used for centuries. This cognition. generated. refined. and passed from coevals to coevals. is frequently described as traditional cognition. Following a parallel path. formal works genteelness plans have utilized assortments conserved and developed by husbandmans. in order to develop improved assortments of higher productiveness. or with other desirable features ( Crespi. 2000 ) .
It is instead hard to present a precise definition of traditional cognition. The World Intellectual Property Organization ( WIPO ) refers to it as “tradition-based literary. artistic or scientific plants ; public presentations. innovations. scientific finds. designs. Markss. names and symbols. unrevealed information and all other tradition-based inventions and creative activities ensuing from rational activity in the industrial. scientific. literary or artistic fields” ( WIPO. 2001 ) .
This definition delivers the torment that all signifiers of traditional cognition should be included. In add-on. traditional cognition can be codified. that is. formalized in some manner ( e. g. . fabric designs ) . but in many instances. depending upon geographic beginning among other factors. it is non-codified ( e. g. . “tribal” or “indigenous” medical specialty ) ( Correa. 2000 ) .
Biotechnology and Intellectual Property Rights
The inquiry that rises is whether traditional cognition is an intangible constituent of the resource itself and therefore. should be rewarded. In order to seek to reply this inquiry. the illustration of works familial resources will be employed. Research and development on works familial resources is a dynamic process that involves a assortment of agents runing from little husbandmans to seed companies. “On-farm invention by husbandmans has happened continuously since settled agribusiness began” ( Dbar. 2002 ) . Small husbandmans undertake experiential research heightening the value of works familial resources through the choice of the best-adapted farmers’ assortments. every bit good as through the innovation of new production techniques.
On the other manus. research establishments use works familial resources to “undertake basic and applied research. including agro-biotechnology. and to heighten bing assortments and the handiness of cistron pools” ( Correa. 2003 ) . However. while research establishments obtain stuffs and information from little husbandmans by and large on a non-market footing. they subsequently function entirely within the market. When an improved assortment enters the commercial channels. the seed company can protect it under works breeders’ rights ( PBRs ) or patents. and benefit from it. Nevertheless. little husbandmans are non compensated for the added value they have created: seed companies’ research workers are non charged a monetary value for the samples they obtain. neither is at that place any compensation or sharing of benefits with the husbandmans.
The part made by husbandmans in conserving. bettering. and doing available works familial resources is seeking. hence. its acknowledgment in the international regulative and policy model. peculiarly through the construct of “Farmers’ Rights. ” This construct was late incorporated in the International Treaty on Plant Genetic Resources for Food and Agriculture ( ITPGR ) . adopted under the protections of FAO’s Commission on Genetic Resources for Food and Agriculture ( CGRFA ) .
In the instance of commercialisation of merchandises integrating traditional cognition. autochthonal and local communities suffer a dual loss. On one manus. they can non portion the benefits originating from the new merchandise. as this right stays with the holder of the patent. On the other manus. applications of modern biotechnology frequently eliminate the demand for commercial growth of the original works. striping therefore the local population from another beginning of income.
The communities can merely take advantage of the scientific discovery – in which they have besides contributed – if they pay the premium that is demanded by the company through the monetary value of the concluding merchandise. As India states in its WTO paper on biopiracy. “traditional cognition saves clip and money for modern biotechnology industry by supplying leads for development of utile products” ( India. 1999 ) .
Hence. traditional cognition is to be rewarded because it enters and influences straight the economic map. The wages constitutes. in economic footings. portion of the net income associated with the development of the merchandise. It is hence axiomatic that autochthonal and local communities in the underdeveloped states should portion the benefits originating from the commercialisation of the concluding merchandise. Not merely do they provide the necessary familial resources. but besides. in a great figure of instances. they have themselves identified and used the relevant belongingss for many centuries ( Lichtenberg. 2000 ) .
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International Regulation Paris Convention for the Protection of Industrial Property It was signed in 1883 and has been the object of assorted alterations. It applies to patents. hallmarks. geographical indicants. industrial designs and theoretical accounts. and unjust competition.
Patent Cooperation Treaty ( PCT )
It facilitates the application for and enrollment of patents abroad for the signer states.
International Convention for the Protection of New Varieties of Plants ( UPOV ) It was signed in 1961 and was amended in 1978 and 1991. It establishes the standards for protecting works assortments by agencies of “plant breeders’ rights. ” The 1991amendments stipulate beef uping the rights of works breeders over the generation. commercialisation. exportation. and importing of the stuff to be propagated. including betterments to the possible protection of all genres and species of workss.
These commissariats were incorporated into the European Union’s Plant Varieties Law in 1995 ( Marris. 2005 ) . UPOV besides introduced the construct of “essentially derived varieties” to let works breeders to command the usage of random mutants. Understood as such are assortments “it is preponderantly derived from the initial assortment. or from a assortment that is itself preponderantly derived from the initial assortment. while retaining the look of the indispensable features that result from the genotype or combination of genotypes of the initial variety” ( UNCTAD–ICTSD. 2005 ) .
Therefore the rights of works breeders who would otherwise lose the value of their rational belongings in a short clip are protected ( as would frequently happen when a works breeder made “cosmetic” alterations to a old assortment without paying for it ) . Other UPOV judicial admissions recognize the right of husbandmans to maintain seeds for the following sowing rhythm without the demand to inquire permission and that “small farmers” are exempt from payment of royalties and may maintain peculiar assortments for 7 old ages. Despite these flexiblenesss. the 1991 UPOV alteration brought the government of works breeders’ rights closer to that of patents.
The Convention extends the coverage of rational belongings rights to imports. exports. and harvested harvests ; broadens the continuance of works breeders’ rights. alining them with that of patents ; restricts free entree to protected assortments ( although it maintains it for intents of reproduction of new assortments ) ; and extends works breeders’ rights to all assortments considered “essentially derived” from Biotechnology and Intellectual Property Rights
the protected assortment. restricting the usage of new assortments that are developed. Although the new norms allow utilizing protected assortments for research intents. any betterment obtained should demo important alterations in the phenotype. Otherwise. the assortment is non considered “new” and will go on to be the belongings of the first works breeder. Furthermore. the right to utilize once permitted. such as the accretion and reproduction of assortments protected in “gene banks” aimed at continuing familial diverseness. is restricted. Finally. farmers’ privilege of maintaining seeds for subsequently seeding seasons is eliminated.
Regulating Bodies and Contradictions
Over the past few old ages. the international community has attempted to modulate the preservation and sustainable usage of biological diverseness. every bit good as the issue of entree to biological stuffs. their control and ownership. Many organic structures engage in treatments on biodiversity and rational belongings. the aims of which are sometimes overlapping or even contradictory. Given the ongoing battle of many companies and research institutes for the acquisition of familial resources. the issue of the sharing of benefits originating from their usage and commercialisation is having major attending.
The call contained in the Plan of Implementation agreed in the Johannesburg World Summit on Sustainable Development for establishing dialogues on an international government on benefit sharing in the model of the UN Convention on Biological Diversity ( CBD ) can merely be seen in that respect ( Platt. 2001 ) .
The rules and pattern of entree to biological resources and just and just sharing of the benefits originating from their usage are being debated in two major international treatments: the CBD and the CGRFA. Benefit sharing is one of the three chief aims of the CBD. the Parties to which have late agreed on a set of voluntary guidelines. called the Bonn Guidelines on entree to familial resources and benefit sharing. These guidelines pave the manner for an internationally agreed. many-sided system on entree and benefit sharing.
On the same side. the recent completion of the drawn-out dialogues for the alteration of the non-binding International Undertaking on Plant Genetic Resources in harmoniousness with the CBD. under the protections of the FAO. has resulted in the advanced and lawfully adhering International Treaty on Plant Genetic Resources for Food and Agriculture. “which covers 64 nutrient harvests accounting for approximately 85 % of planetary human nutrition” ( RAFI. 2002 ) .
The Treaty establishes a many-sided system for facilitated entree to a specified list of works familial resources for nutrient and agribusiness. balanced by benefit sharing in the countries of information exchange. engineering transportation. capacity edifice. and commercial development. While the CBD calls for the protection of autochthonal cognition. the WTO TRIPS understanding ( Trade-related facets of Intellectual Property Rights ) obligates its members to follow patents or a sui generis system for works assortments. Conservation and denationalization
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are seen by many as contradictory ends. and the TRIPS understanding is accused for curtailing the handiness of familial resources and doing hazards for nutrient security and sustainable supports of local communities by endangering farmers’ rights and displacing their assortments.
In add-on. Western-style rational belongings governments do non suit the features of traditional cognition. and can therefore barely be used for its protection. Although until late. WIPO was considered to be the most of import international organic structure covering with rational belongings issues. the creative activity of WTO and the acceptance of the TRIPS understanding changed the scenery. The TRIPS understanding brought rational belongings to centre phase in many-sided trade dialogues.
Of peculiar relevancy to biological diverseness. Article 27. 3b provinces that workss and animate beings. every bit good as basically biological procedures may be excluded from patentability. Since “all biotechnological procedures ( including microbiological ) are really biological processes” ( Mae-Wan Ho and Traavik. 1999 ) . their exclusion from patentability under 27. 3b remains unfastened. As Tansey points out. words like “plants. animate beings. micro-organisms. non-biological. effectual. microbiological. sui generis systems are defined otherwise in different international and national legislation” ( Tansey. 1999 ) .
So. they are. in some grade. open to reading. In turn toing that job. there have been suggestions of making a individual organic structure to cover with cistron biotechnology in its really sense alternatively of turn toing the application in peculiar countries ( Saunders. 1999 ) . As stated above. WTO Members must offer protection for works assortments either by patents and/or by an effectual sui generis system. intending a system of rights that is alone for a specific point or engineering. Because of the trouble in making consensus during the dialogues. the Members agreed that the text would be reviewed.
Article 27. 2 so allows the exclusion from patenting of innovations contrary to public order or morality: innovations dangerous to human. animate being or works life or wellness. or earnestly damaging to the environment. It is still unfastened to whether the public morality exclusion of TRIPS can be used to reject patents on life signifiers or controversial new engineerings such as the familial usage limitation engineerings.
Patents in the field of biotechnology can be applied to drugs and chemicals. cistrons and proteins. microorganisms. workss and animate beings. An early illustration of the historical application of patents in biotechnology is the US patent awarded in 1873 to Louis Pasteur for his work on a ‘yeast. free from organic sources of disease. as an article of manufacture’ ( Pasteur. 1873 ) . Patents are designed to allow the discoverer an sole monopoly on his design for a limited period of clip.
In return the discoverer discloses information sing the innovation into the public sphere to let airing of cognition and usage of the innovation within the model of the patent. Once the patent expires. the innovation can be made. sold or used with no bounds ( Tansey. 1999 ) .
Biotechnology and Intellectual Property Rights
Application and Granting of Patents Background
In 1873 the United States Patents and Trademarks Office ( USPTO ) granted patent No. 141. 172 to Louis Pasteur for yeast free of disease sources. sing it a industry. It was later decided non to go on along that line. with some exclusions ( a strain of bacteriums in 1977 ) . The standard that prevailed was sing that populating beings were non patentable because they were regarded as merchandises of nature. or because they were non capable to sufficient written description. as demanded by the patents system.
This excluded bacterium and Fungi that produced antibiotics. for which ground prior to 1980 most patents were granted to procedures. chiefly those that used bacteriums to handle effluent or bring forth chemical substances. antibiotics. etc. ( Somberg. 2005 ) . In 1930 the United States Congress approved the Plant Patent Act. which permitted protection for asexually reproduced workss with the sole right to propagate the works for 17 old ages ( Dunwell. 2010 ) .
To day of the month the USPTO has granted around 6. 000 patents for works holders. chiefly fruit trees. flowers. cosmetic trees. grapes. and other horticultural species. In 1961 the International Convention for the Protection of New Varieties of Plants ( UPOV ) was signed in Paris. It has been submitted to three alterations. the last one in 1991. In 1970 the United States introduced an altered version of the UPOV System of Plant Breeders’ Rights into its statute law to protect new sexually reproduced assortments of workss. In Europe. after the sign language of UPOV. several states recognized protection rubrics for new works assortments.
However. in 1973 the European Patent Convention in Munich excluded the patenting of works assortments and the basically biological processs for their production ( Correa. 2001 ) . In 1977 the first patent on a strain of bacterium was granted in the United States. but it was non until 1980 that the first major alterations were made to rational belongings ordinances. In 1972 microbiologist Chakrabarty filed a patent application for 36 claims related to the innovation of a genetically designed bacteria of the Pseudomonas species. capable of degrading the multiple constituents of petroleum crude oil.
The application was rejected. but Chakrabarty appealed. and on June 16. 1980. the United States Supreme Court decided in a historic opinion that the said bacteria was a “manufacture” or “composition of matter” which met the standards of freshness ( inexistent as such in nature and non obvious for scientific discipline at the clip ) was derived from an imaginative measure ( it had been produced in a research lab by transportation of plasmids ) and met the demand of utility ( its intent was to utilize it in oil spill clean-up work ) . The opinion included the undermentioned phrase: patents can be granted “to anything under the Sun that is made by adult male. ” Therefore the expostulation to patents on life existences for the Modern Biotechnology and its Applications
simple fact of being life was eliminated. The Budapest Treaty ( 1977. in force since 1980 ) establishes as a demand for patent applications on micro-organisms the sedimentation of civilizations in well-known aggregations to that consequence. This determination marked an of import alteration on the topic and led to alterations of the regulative model for Intellectual Property Rights in the United States. The perceptual experience of impairment of the United States’ comparative advantages in the technology-intensive industry brought about important alterations in signifiers of protection of rational belongings rights ( Hunt. 1999 ) .
The loss of fight was attributed to the fact that the system was geared to basic research. was weak. and instead inefficient in bring forthing consequences for houses. whereas the consequences of research were easy appropriable by rivals due to miss of protection ( Coriat and Orsi. 2001 ) .
Regulatory Levels and Frameworks Patents can be applied for and obtained at national. regional. and international degree. For the first degree there are the specialised national offices. for the 2nd the regional authorization ( e. g. . the European Patent Office ) . and for the 3rd the International Patent Cooperation Treaty ( PCT ) administered by WIPO. under which valid patents can be registered in all the signatory states. Patents do non allow the same rights in all states. for each one has its ain jurisprudence.
For the same ground. mandates may hold different coverage. so that comparings with information from different states and systems entail troubles. USPTO. the European Patent Office ( EPO ) . and the Japan Patent Office ( JPO ) are the 1s that receive the most applications and authorise the largest figure of patents. The agents that apply for and obtain patents are normally classified into companies. persons and authorities. subjects. and aliens. It is besides possible for patents registered abroad to be applied for by the caput office in some instances and by subordinates in others.
Harmonizing to available informations. applications for patents grew from 2. 3 million in 1994 to more than 8 million in 2001 and more than 12 million in 2004 throughout the universe. Applications under the Patent Cooperation Treaty show a similar growing rate. from merely over 1. 1 million to 5 million during the period. As for the Fieldss in which patents are applied for. there are some differences between USPTO and EPO. Harmonizing to the international categorization. in USPTO 17 % of applications autumn under the class “Human Needs. ” which include nutrients. nutrient production. and transgenics. In EPO the most of import class is chemicals and metallurgy. although non much more than others. A research undertaking with USPTO
Biotechnology and Intellectual Property Rights information for the past 10 old ages shows that the United States is the most active state. since between 1980 and 2000 the figure of patents authorized more than doubled. and between 2000 and 2004 these grew 60 % . Although the introducing agents that patent the most are persons and national houses. every bit good as authoritiess. aliens are the most dynamic. Japan. Germany. the United Kingdom. France. and Canada are the most active states within the United States. the state that concentrates the most foreign patents. One outstanding fact is the high concentration of patenting activities in few states.
Japan is the state that patents the most in the United States. for it holds 452. 737 patents. more than four times the figure of the United Kingdom ( 101. 330 ) and about 20 times more than the Chinese state of Taiwan ( 24. 646 ) . Latin America and the Caribbean are in a really fringy place. Mexico is in first topographic point with place 24th in the universe and 1. 907 patents.
Reasonably far buttocks is Brazil ( topographic point 28th with 1. 263 patents ) . Argentina ( 32nd topographic point with 904 patents ) . and Venezuela ( 36th with 557 patents ) . At the corporate degree. IBM of the United States occupies foremost topographic point. followed by Canon and Toshiba of Japan and Samsung of the Republic of Korea. The most dynamic Fieldss for patenting in the United States are biotechnology and molecular microbiology. pharmaceuticals and compounds. electronics. and ocular systems. In the field of biotechnology. transgenics and associated procedures. cistrons. and cistron sequences are outstanding.
Main Patenting Agents
Biotechnology Dow Chemical Basf Ciba Geigy Monsanto United States Government Source: USPTO databases. Agricultural biotechnology Monsanto Group ( 5. 9 % of entire patents ) Dupont Pioneer Group ( 0. 2 % ) Singenta ( 13. 8 % ) Aventis ( 15. 7 % ) Universities under contract with the above-named groups and on their ain history ( 56 % )
In transgenics and advanced biotechnology applications on workss. research with USPTO informations indicated that so far. 4. 609 patents have been obtained. of which 902 correspond to higher arable workss. seed workss. or parts of workss ( Angiosperms and gymnosperms ) ; 501 patents for transgenic soy ; 423 for pathogen-resistant transgenics ; and 336 for transgenics with male asepsis ( Table1 ) .
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Table 1: United States: patents obtained on transgenics and new works assortments Category Total Higher arable workss. seed workss. or parts of workss ( flowering plants and gymnosperms ) Maize Soya bean Pathogen-resistant transgenics Transgenics with male asepsis Insect-resistant transgenics Brassica ( Canola ) Herbicide-resistant transgenics Tobacco Rice Potatoes Wheat Cotton Herbicide-resistant corn Sunflower Beans Marrow. Zucchini Cucumber Others Source: USPTO databases. No. of patents 4. 609 902 783 501 423 336 316 187 176 173 117 103 95 89 82 76 27 22 21 180
With respect to cistrons and cistron sequences. the ranking is as follows: a ) B ) degree Celsius ) United States Government University of California Smith Kline Beecham Incyte Pharmaceuticals Inc.
Latin America and the Caribbean every bit good as many other developing states possess an tremendous biodiversity and its native dwellers have for centuries developed cognition and larning on how to use that tremendous wealth in a sustainable mode. One hectare of Latin America’s tropical wood possesses more biodiversity than the full European continent. Thankss to the work of the original peoples of the part. humanity has nutrients such as corn and murphies. among many others. The part besides
Biotechnology and Intellectual Property Rights
has an of import base of scientists and technicians in agricultural invention. but it benefits little from their cognition. Conservative estimations indicate that in Latin America and the Caribbean more than 150 million people live in the rural country. and a important portion of them in conditions of poorness and need.
The advantages of patent enrollment include: 1. 2. 3. 4. Dissemination of information into the scientific community Protection of fiscal profitableness of an innovation Signal a firm’s advanced capacity and attractive force of capital. Facilitate emerging markets from exchange of new engineerings. e. g. university licensing to new venture start-ups
In spirit a patent affords the discoverer a ephemeral exclusion right leting development of an innovation to a marketable merchandise. Thus violation of patent occurs if the same means is used in the same application. In the UK a patent takes on mean three to four old ages to allow and if renewed each twelvemonth will last for up to twenty old ages. An application for a patent must depict: 1. 2. 3. 4. 5. 6. The background of the innovation Correctly identify the discoverer ( s ) . The indispensable characteristics of the innovation The preferable but non-essential characteristics of the innovation How the innovation will be used The claims of the innovation
The patent is normally written by a attorney specialising in patent jurisprudence and filed with the patent offices of a specified state. If the patent application successfully fulfils the legal standards. a patent is granted. In Europe. the EU Directive on the Legal Protection of Biotechnological Inventions 98/44/EC was intended to harmonise patent jurisprudence in biotechnology and familial technology across Europe but has alternatively created some confusion and uncertainness with some European member provinces implementing the directive while others have non.
Current analysis purposes to find the fluctuation in patents granted between the national and European patent offices in order to define the boundaries between moralss and legal legislative acts with respect to research peculiarly on human embryos. More specifically in the UK. the House of Lords in 2005 made a landmark determination on the violation of a European patent for erythropoietin. Infringement analysis involves finding the extent of the patent and more specifically what would a individual skilled in the art have understood the patent to intend.
Therefore the degree of cognition of the discoverer in the field of the patent must be sufficient that he understands the claims of the patent at the clip of entry.
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Protocol inquiries are used to help analysis of patent violation by a new discrepancy: 1. 2. 3. Does the new discrepancy have a material consequence on the manner the original innovation plants Would the fact that the new discrepancy had no consequence on the original patent been obvious at the clip of allowing the original patent Would experts in the field have understood that the patentee intended rigorous patent conformity?
A determination on when to register a patent is hence important to the protection of rational belongings rights and economic potency. In Europe rational belongings rights are protected on a first to register instead than a first to invent footing. Patents filed early protect the discoverer from rivals but are at hazard of non supplying sufficient robust experimental informations to back up the patent. Delaying patent entry until sufficient informations has been collected risks rivals doing usage of the innovation. In order for a patent to be filed. sufficient proficient informations must be included to let duplicability of the innovation. If deficient information is presented. the patent will be rejected as late filed experimental grounds will non be accepted.
Specifically in Europe. innovations associating to curative intervention must include informations from experiments to demo load of cogent evidence of curative efficaciousness for the innovation. As the economic importance of patenting has become more accepted in the scientific community. the figure of patent applications has steadily increased. In the USA. tendencies has emerged where income from patents is greater in establishments with a larger sum of sponsored research. was funded by national institutes. were male. had a PhD or were experienced module members. Patents may be economically extremely moneymaking but unpredictable as development of an innovation can turn out a dearly-won. high hazard scheme.
Therefore in order to accomplish economic wagess an establishment must hold a patent in a cardinal country to pull industry involvement or have a high degree of sponsored research to increase the opportunities of gaining income from patents and subsequent licensing understandings. Patents should therefore non be relied upon to bring forth sufficient income to reinvest into subsidising farther research. A farther concern is that companies will favor investing in moneymaking innovations to the hurt of diseases impacting chiefly developing states therefore making farther disparity between the rich and the hapless.
The IT industry and biotechnology industry have different dockets sing patent violation. IT companies want patent reform to forestall the larger companies purchasing up patents with the purpose of bear downing other smaller companies for patent violation or for licencing understandings. However. in biotechnology where a little alteration to a anterior innovation ( e. g. inhaled insulin ) can hold far making economic effects. patents are strongly contested as they can pull significant investing from venture capitalists. In the USA anticipated reforms with ‘first-to-file’ proviso would convey it into line with
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Europe and Japan with the hope that eventual fusion of patent offices worldwide could one twenty-four hours be a world. New progresss in biotechnology raise the issue of patents on signifiers of life. familial sequences and disease provinces. Is human biological stuff obtained from an identifiable beginning to be considered as personal informations? If it is. so the usage of that human stuff or familial sequence to obtain a patent is considered as processing of personal informations under European directives and therefore capable to data protection statute law.
The deduction of patents on issues of morality and moralss in biotechnology besides needs to be addressed. In Europe the Munich Convention states that European patents shall non be granted if the innovation is contrary to jurisprudence or morality. In the UK this dates back to the Statute of Monopolies of 1624 when it was recognized that as patents were granted in the name of the Crown. protecting immoral innovations could reflect unfavorably on the Crown. 25 However. patents are issued by staff non trained in issues of morality which can alter as society evolves with clip.
The range of application of an innovation is non defined by the patent which can besides raise subsequently issues on morality. There is a major contention sing the possibility of patenting populating beings. This goes back many old ages. but the scenario has doubtless been complicated by the development of familial technology and the possibility of industrially developing merchandises based on the usage of modified life beings.
World Trade Organization ( WTO ) . through the TRIPS Agreement. has put frontward standards on the possibility of allowing rational protection to biotechnological inventions. Harmonizing to Article 27. 3 ( B ) of TRIPS. workss and animate beings other than micro-organisms are patentable subject-matter. as are basically biological procedures for the production of workss or animate beings other than non-biological and microbiological procedures.
However. TRIPS besides stipulates that Members shall supply for the protection of works assortments either by patents or by an effectual sui generis system or by any combination thereof and that such commissariats shall be reviewed 4 old ages after the day of the month of entry into force of the WTO Agreement. Article 27. 3 ( B ) is one of the most controversial in the TRIPS Agreement since on the one manus it describes patentable subject-matter. and on the other manus. it obliges Members to protect micro-organisms and certain biological procedures.
The above reflects the strong struggle of involvements between developed states wanting to obtain protection for their biotechnological inventions. the differences between assorted states on the range of protection. and the concern of the development states about patents on life signifiers ( UNCTAD-ICTSD. 2005 ) . Added complexness arises as research into genomic stuff reveals that biological information operates on multiple interconnected hierarchal degrees with upstream research act uponing downstream economic investing and technological development. Whilst current patent Torahs assume a comparatively simplistic linear relationship between invention and development. system biological science consists of multiple complex degrees of cognition.
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Allowing wide patents for the system may therefore forestall timeserving development of medical merchandises in a multidisciplinary scene. The major challenges for the part in footings of rational belongings and invention autumn within this general image. The consolidation of the new regulative models of TRIPS can increase the spread between developing and developed states. unless the former take the necessary steps to reenforce their scientific development and protect their heritage and their creative activities at the same time.
The linkage of these understandings with the free trade understandings points up the demand for the states to joint their attempts to organize both facets. peculiarly biodiversity. The part has an of import sum of scientific progresss without rational protection. Many of them have been generated in institutes and public universities with the engagement of private parties. In position of the investings made and their capablenesss. it is a inquiry of subject-matters that can and should be addressed from a public-policy position.
Advanced attempts in the field of scientific and technological development require economic graduated tables that the part itself can supply. for case in agribusiness and in the protection and use of biodiversity. where a critical mass of qualified scientists is available. whose coordination could be the object of transnational attempts. In this respect. public policy should see elements such as the followers: 1. Creation of a regulative model that favors attention and sustainable usage of biodiversity and acknowledgment and protection of the traditional acquisition and cognition of autochthonal peoples and provincials. This involves doing national Torahs compatible with understandings between states on biodiversity. the