Conserving Biodiversity: The Extent to Which the Patent System Encourages the Destruction of Our Ecological Heritage

Author:Mary Connery
Position:Senior Sophister Law, Trinity College, Dublin
Pages:98-124
CONSERVING
BIODIVERSITY:
THE
EXTENT
TO
WHICH
THE
PATENT SYSTEM
ENCOURAGES
THE
DESTRUCTION
OF
OUR
ECOLOGICAL
HERITAGE
MARY
CONNERY*
At
times
human ingenuity
seems
unable
to
control
fully
the
forces
it
creates
-
that,
with
Hamlet,
it
is
sometimes
better
'to
bear
those
ills
we
have than
to fly
to
others
that
we
know
not
of.1
In
India
in
the
3
century
BC
Kautilya,
a
Hindu
statesman
with
responsibility
for
legislation included
provisions
for
the
maintenance
of
forests,
birds
and
wild
animals.
2
Such
enlightened
thinking
reveals that
protection
of
the
environment
is
not
without precedent.
Despite
momentous
leaps
in
technology worldwide
the human
race
remains
hugely
dependent
on
the
natural
world
for
"food,
shelter,
clothing, medicine
...
watershed
protection,
production
of
soil,
photosynthesis
and
climate
regulation".
3
No
amount
of
progress
has
managed
to
break
this
dependence.
In fact
biological
diversity
has been
described
as
"the
foundation
upon
which
human
civilisations
are
built".
4
Given
the
vital
importance
of
the
ecological
complexes
present
on
the
planet, every effort should
be
made
to
preserve and
nurture
such
variety.
However,
estimates
indicate
that
already
more
than
60%
of
the
planet's
primary tropical
rain forest,
perhaps
the
richest
of
all
natural
ecosystems,
has
been
lost
and
in
1997
13.6%
of
the
world's
vascular
flora
.
Senior Sophister
Law,
Trinity
College, Dublin.
I
would
like
to
thank
Mr.
Paul
Coughlan,
Ms.
Mary
Rogan
and
Ms. Maria
Cahill
for
their
many
helpful
comments
on
an
earlier
draft
of
this
article.
However, any
errors
and
omissions
remain
entirely
my own.
1
Diamond
v.
Chakrabarty
447
US
303,
316
(1980).
2
Quoted
in
Sharma,
"The Global
Loss
of
Biodiversity:
A
Perspective
in
the
Context
of
the
Controversy
over
Intellectual
Property Rights"
(1995)
4
University
of
Baltimore
Intellectual
Property
Journal
1,
at
3.
'
Ibid.,
at
2.
4
Miller,
"Issues
on
the
Preservation
of
Biological
Diversity"
in
Repetto
ed.,
The
Global
Possible:
Resources,
Development
and
the
New
Century
(Yale
University
Press,
1985),
at
338.
©
Mary
Connery
and
Dublin
University
Law
Society
Conserving Biodiversity
was
threatened with
extinction.
5
The
preservation
of
the
earth's
unique
and
multi-faceted
biological
wealth
is
increasingly
becoming
a
priority
in
international
environmental
law
through
such
international
agreements
as
the
United
Nations
Convention
on Biological Diversity.
6
It
is
in
light of
such
circumstances
that
the
impact
of
the
patent
system
is
of
increasing
importance.
Like
all
intellectual property
rights,
patents
provide
a
right
of
property
to the
applicant
over
the
specified
product;
in
this
case
a
monopoly
for
20
years.
However,
while
patents were
originally created
as
a
means
of
protecting industrial
inventions,
in
recent
years
they have been
extended
to give
companies
monopoly
rights over'
living
organisms particularly
genetically
engineered
creatures. Such
developments will
have
a
profound
environmental
effect
by
increasing
the
onslaught
on
the
earth's
biodiversity.
The patent
system
has
begun
to
operate
as
a
means
of
exploiting
natural
resources
to the
detriment
of
attempts
to
preserve
the
earth's
biological
diversity.
It
is
proposed
that environmental
concerns
should
be
legitimate
considerations
within the
ambit
of
the
decision
to
award
a
patent
and
as
such should
be
examined
by
patent offices.
An
evaluation
of
the
importance
of
the
earth's
natural
heritage in
light of
the
growing
encroachments
into
this
area
by ecologically
damaging
innovations
demonstrates the need
for
a
more
environmentally-minded patent system.
The
proponents
of
commercialised
science,
who
are
so
protective
of
an
isolated
body
of
patent
law
without
any
reference
to
environmental
restraints,
should
not
be
licensed
to
decimate
our
ecological
patrimony.
The
Concept of
Biodiversity
The
biodiversity
of
Earth
is
our
biological
wealth,
our
biological
capital.
The
savings
are
every
gene,
every
population,
every
species
and
every natural
community
that
inhabits
the
oceans, the land
and
the
air
....
Biodiversity
is,
as
far
as
anyone
knows, totally
irreplaceable.
7
5
Quoted
in
Mittermeier and
Konstant,
"Biodiversity
Conservation"
in
Bowles
and
Prickett
eds.,
Footprints
in
the
Jungle:
National
Resource
Industries,
Infrastructure
and
Biodiversity
Conservation
(Oxford
University Press,
2001) 1,
at
15.
6
Adopted
5
June
1992
(hereinafter
CBD);
available
at
<http://www.biodiv.org
/convention/articles.asp>
(last
visited
01
February
2003).
7
Beattie
and
Ehrlich,
Wild
Solutions:
How
Biodiversity
is Money
in
the Bank
(Yale
University
Press,
2001),
at
222.
2003]

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