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Biological diversity and the Brazilian patent system

In 1992, the United Nations Conference on Environment and Development held in Rio de Janeiro (ECO 92) approved the Convention on Biological Diversity which aims to protect biological diversity worldwide.
The Convention’s objective was to focus the intrinsic value of biological diversity and its importance for the development and maintenance of the systems necessary for life in the biosphere. It included several values such as ecological, genetic, scientific, social and economic values arising from biological diversity.

The Convention also recognized the close dependence between the biological resources of local communities and indigenous populations with traditional ways of life, and the fair and equitable sharing of benefits arising from the use of this traditional knowledge.

However, different sources allege that researchers and companies from developed countries use genetic resources from countries with rich biodiversity, without the appropriate authorization, in order to obtain new inventions, techniques and products. This is what we know as “biopiracy”. Identifying genetic resources and their main active ingredients is possible through members of local communities who cooperate with the researchers without receiving any consideration.

Some provisional measures, including the current Provisional Measure No. 2186-16, 23/2001, have been taken to regulate the proposals in the Convention on Biological Diversity and to register the inventions developed with genetic resources conserved in situ and/or traditional knowledge of local indigenous populations. Article 30 of the aforementioned Provisional Measure warns about administrative violations against genetic heritage or against the associated traditional knowledge and the corresponding sanctions. Fines may reach up to the suspension and cancellation of the registration, patent, license or authorization. Article 31 links the granting of intellectual property rights by the authorized agencies relating to the process or product obtained to a sample component of the genetic heritage. The applicant must inform about the origin of the genetic material or the associated traditional knowledge, as the case may be.

It is important to highlight that the Provisional Measure on access authorization regulates cases which took place after 30 June 2000. After this date, applications which access biodiversity without authorization are illegal. With the aim of standardizing the resolutions, on 30 April 2009 the new ones from the Brazilian Patents Office (INPI) on applications for patents arising from Brazilian biodiversity were published in the Official Journal of the Union. The main novelty is that when filing the application, the applicants will not need to inform about the date and authorization number for access to the component of the national genetic heritage granted by the Genetic Heritage Management Council (CGEN). The information will be sent to the Brazilian Patents Office (INPI) only in those cases which are required for regularizing the legal situation of the patent applicant.

Despite the new resolutions proposed by the INPI and CGEN, there is still no definitive legislation which regulates access as this issue is still under discussion.

Carmen Sánchez-Puelles