Navigating Patents and Intellectual Property in Biodiversity Conservation

When we talk about biodiversity conservation, we often think about protected areas, wildlife corridors, or habitat restoration. But there’s another critical layer to conservation that many overlook – patents and intellectual property (IP) rights. These legal tools directly influence who gets to use biological resources, how innovations based on those resources are developed, and whether local communities actually benefit from the genetic riches found in their own backyards. Understanding the intersection of IP law and biodiversity isn’t just an academic exercise; it’s central to how we manage and protect the planet’s biological wealth.

What are patents and why do they matter for biodiversity? 🔗

A patent is a legal right granted to an inventor, giving them the exclusive ability to make, use, or sell their invention for a limited period – typically 20 years. In the context of biodiversity, patents are most relevant when innovations are derived from genetic resources – the DNA, biochemical compounds, and biological material found in plants, animals, and microorganisms.

Genetic resources themselves are not directly patentable, but inventions developed using them can be – most often through a patent. For example, a pharmaceutical company that develops a new drug from a compound found in a rainforest plant can patent the drug formulation or the process used to extract and synthesise it. Similarly, biotechnological inventions that modify organisms for agricultural productivity or medical applications are routinely patented.

Types of patents relevant to biodiversity 🔗

Several categories of patents intersect with biodiversity conservation. Utility patents cover new and useful processes, machines, or compositions of matter – this includes genetically modified organisms (GMOs) and novel biochemical compounds derived from natural sources. Plant patents protect new, distinct varieties of asexually reproduced plants. Additionally, biotechnology patents cover techniques like gene editing, DNA sequencing methods, and processes for developing bio-based products.

Research shows that only about 6.2% of known plant species and less than 0.4% of fungi species are currently named in patents , according to a study published in Plants, People, Planet. This suggests that the vast majority of biological diversity remains unexplored from a commercial standpoint – representing both untapped potential and a conservation opportunity.

How intellectual property laws support conservation 🔗

IP laws can act as powerful tools for conservation when designed well. At their core, they create economic incentives. If companies can profit from biodiversity-based innovations through patent protection, there’s a financial motive to keep ecosystems and species alive. Patent protection and resource access, however, must be developed carefully by biodiversity-rich countries to successfully balance their domestic conservation and socioeconomic goals.

The Convention on Biological Diversity and TRIPS 🔗

Two major international frameworks shape how IP and biodiversity interact. The Convention on Biological Diversity (CBD), adopted in 1992, recognises national sovereignty over genetic resources and calls for fair benefit-sharing from their use. The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), administered by the World Trade Organization, sets minimum standards for IP protection globally.

Both agreements – TRIPS and the CBD – are relevant to patent rights and the use of biological resources , though they were motivated by different objectives. TRIPS focuses on promoting innovation and protecting IP holders, while the CBD prioritises conservation, sustainable use, and equitable benefit-sharing. This tension between commercial interests and conservation goals is at the heart of ongoing international debates.

Limitations on patent rights 🔗

IP laws don’t grant unlimited power. Most patent systems include exceptions. Under Article 27.3(b) of TRIPS, countries may exclude plants and animals (other than microorganisms) from patentability. Many nations also require that patented inventions meet strict criteria of novelty, inventive step, and industrial applicability – criteria that, as we’ll see, have been used to challenge patents based on traditional knowledge.

The biopiracy problem: patents and traditional knowledge 🔗

Perhaps the most contentious issue at the intersection of patents and biodiversity is biopiracy – the practice of patenting innovations based on biological resources or traditional knowledge without the consent of, or fair compensation to, the communities that developed that knowledge over generations.

The turmeric and neem cases 🔗

India’s experience provides some of the most cited examples. In 1995, the US Patent and Trademark Office granted a patent to researchers at the University of Mississippi Medical Center for using turmeric in wound healing – a remedy that had been widely known in Indian households for centuries. India’s Council of Scientific and Industrial Research (CSIR) challenged the patent by providing documented evidence of prior use from ancient Sanskrit texts and scientific literature. The USPTO revoked the patent in 1997.

Similarly, the European Patent Office granted a patent to a US company for a neem-based method of fungicidal treatment, which was widely considered an act of biopiracy given that neem had been used as a traditional remedy in Indian households for centuries. After a prolonged legal battle, this patent too was revoked in 2005.

India’s Traditional Knowledge Digital Library 🔗

These landmark cases led India to create the Traditional Knowledge Digital Library (TKDL) – a searchable database of traditional Indian medicinal knowledge available to patent examiners worldwide. This proactive measure was developed after the turmeric and neem cases to help patent offices identify prior art and prevent future instances of biopiracy. The TKDL now has access agreements with several international patent offices including the USPTO, EPO, and the Japan Patent Office.

Why traditional knowledge is difficult to protect 🔗

A fundamental mismatch exists between conventional IP systems and the nature of traditional knowledge. Patents reward novelty and individual invention, while traditional knowledge is communal, evolved over generations, and often not formally documented. This makes it vulnerable to appropriation by external parties who can frame it as a “new” discovery. The scope of exclusive rights created by IP systems defines who can use information contained in genetic resources, directly influencing how benefits from that use are distributed.

The natural relationship between genetic resources and scientific advancement means patent rights are deeply intertwined with how society uses and develops biological resources – a reality that disproportionately affects biodiversity-rich developing nations in the Global South.

The Nagoya Protocol and benefit-sharing 🔗

To address the imbalance between those who provide genetic resources and those who profit from them, the international community adopted the Nagoya Protocol in 2010. This supplementary agreement to the CBD aims to implement the fair and equitable sharing of benefits arising from the utilisation of genetic resources, thereby contributing to conservation and sustainable use of biodiversity. It entered into force in 2014 and has been ratified by over 140 countries.

The Protocol requires that access to genetic resources is subject to prior informed consent from the providing country and that benefits are shared on mutually agreed terms. Over the past decade, the Nagoya Protocol has led to the creation of more than 130 national access and benefit-sharing laws around the globe.

How benefit-sharing works in practice 🔗

Benefits can be monetary (royalties, licence fees, milestone payments) or non-monetary (technology transfer, capacity building, joint research). For instance, when a cosmetics company develops a product from a plant traditionally used by an indigenous community, the Nagoya Protocol framework requires that the company negotiate a benefit-sharing agreement with the provider country and, where applicable, with the relevant local communities.

However, implementation remains uneven. Many scientists have raised concerns that increased regulatory requirements may hamper disease prevention and conservation efforts , while developing countries often lack the institutional capacity to effectively monitor and enforce compliance.

The 2024 WIPO treaty: a landmark development 🔗

A significant new chapter in IP and biodiversity governance opened in May 2024, when WIPO member states adopted a historic treaty on intellectual property, genetic resources, and associated traditional knowledge. This came after nearly 25 years of negotiations and represents the first WIPO treaty to address the relationship between IP, genetic resources, and traditional knowledge.

What the treaty requires 🔗

Article 3 of the treaty requires patent applicants to disclose the origin or source of genetic resources, or the indigenous peoples and local communities who provided the associated traditional knowledge, when their inventions are based on such resources. This mandatory disclosure requirement is designed to improve transparency in the patent system and help prevent erroneous patents from being granted.

The treaty also encourages the establishment of information systems such as databases of genetic resources and traditional knowledge, made accessible to patent offices for examining patent applications. If an applicant fails to disclose the required information, they must be given an opportunity to correct the omission – but no country may revoke or invalidate a patent solely because of a failure to disclose, except in cases of fraudulent intent.

Current status and significance 🔗

The treaty will enter into force three months after 15 eligible parties ratify or accede to it. As of late 2024, ratification was still in its early stages, but the treaty’s adoption itself represents a major shift – it signals that the IP system can drive innovation while evolving to meet the needs of all countries and their communities , particularly those in the Global South that hold the richest biodiversity.

Future directions in IP and biodiversity 🔗

Looking ahead, several emerging issues will shape how IP law and biodiversity conservation evolve together.

Digital sequence information 🔗

One of the most pressing questions is how to handle digital sequence information (DSI) – the genetic data that can be shared electronically without transferring physical biological material. Current benefit-sharing frameworks were designed around physical access to resources. As genomic data becomes freely available through open databases, countries and communities risk losing control over how their biological resources are used commercially.

Open-source and commons-based models 🔗

Some researchers argue that alternative models of innovation, such as open-source and commons approaches, are needed to make biodiversity more accessible for research that addresses genuine human needs , particularly in areas like neglected tropical diseases. These models could complement rather than replace patent-based approaches.

Strengthening community-level protections 🔗

There is growing recognition that top-down international agreements need to be paired with community-based IP frameworks that give indigenous peoples and local communities direct agency over their knowledge and resources. Sui generis systems – custom-designed legal frameworks that don’t fit neatly into standard patent or copyright categories – are being explored in several countries as more culturally appropriate alternatives for protecting traditional knowledge.

Aligning IP with the global biodiversity framework 🔗

The Kunming-Montreal Global Biodiversity Framework, adopted in 2022, sets ambitious targets for halting biodiversity loss by 2030. Meeting these targets will require that IP laws incentivise, rather than obstruct, conservation. This means designing patent systems that reward sustainable innovation, ensuring benefit-sharing revenues flow back to conservation efforts, and closing loopholes that allow biopiracy to persist.

What do you think? Should patent offices worldwide be required to verify whether inventions are based on traditional knowledge before granting patents? And how can we ensure that benefit-sharing from biodiversity-based innovations actually reaches the local communities who have safeguarded these resources for centuries?

References

1. https://nph.onlinelibrary.wiley.com/doi/full/10.1002/ppp3.10144
2. https://www.wto.org/english/docs_e/legal_e/27-trips.pdf
3. https://www.mondaq.com/india/patent/586384/traditional-knowledge-and-patent-issues-an-overview-of-turmeric-basmati-neem-cases
4. https://www.lexology.com/library/detail.aspx?g=1c132aa5-97af-4164-af22-ca3c240ab172
5. https://pmc.ncbi.nlm.nih.gov/articles/PMC3827099/
6. https://www.cbd.int/abs/infokit/revised/web/factsheet-nagoya-en.pdf
7. https://www.wipo.int/en/web/traditional-knowledge/wipo-treaty-on-ip-gr-and-associated-tk
8. https://www.ciel.org/Publications/tripsmay01.PDF