nationals and foreigners, favoring the former. This was to promote domestic research, innovation and creativity. For example, Switzerland only allowed patents on pharmaceuti-cals and agricultural chemicals in the 1970s. Having reached industrial status, these countries then sought to have high IPR standards around the world to protect the technological advantage and market dominance of their major industries especially those in the pharmaceutical, agriculture, biotech­nology and information technology sectors.
     TRIPS sets mandatory "minimum standards" but these are based on standards of developed countries in the late 1980s to early 1990s when TRIPS was negotiated. There­fore the standards are actually very high and have serious adverse impacts on the development prospects of develop­ing countries. Article 27.2 provides that an "invention" can be excluded from patentability, if it is necessary to protect ordre public or morality and the grounds include to protect human, animal or plant life or health; and to avoid serious prejudice to the environment.
     Thus inventions can be excluded from patentability on grounds contained in national patent laws. The grounds for excluding patents are not exhaustive in TRIPS, so countries can decide what those grounds are, that are in line with the protection of ordre public and morality. There are also other provisions that give a WTO member flexibilities and safe­guards at the national implementation level. It is therefore important to understand and interpret TRIPS in a proper way.
     Under TRIPS Article 27.3(b), a WTO Member has to allow for the patenting of the following: non-biological and microbiological processes for production of plants and ani­mals; and "microorganisms". With TRIPS, for the first time there is an international obligation to patent microorgan­isms. But many countries interpret this to exclude "natu­rally-occurring microorganisms" as these are discoveries. Gene sequences and other parts of microorganisms are not specifically mentioned and many countries exclude these in their national laws, too.
     A WTO Member may exclude the following from pat­entability: essentially biological processes for production of plants or animals; and diagnostic, therapeutic and surgical methods for treatment of humans or animals. IP experts and scientists have observed that it is illogical to exclude patents on biological processes but mandate patents on microbio­logical processes. This was a concession to the biotechnology industry that was already bioprospecting and commercial­izing microorganisms and TRIPS is openly acknowledged today as the result of successful industry lobby.
     The criteria for patentability should also be carefully understood and applied. Patent principles and law were de­signed for mechanical inventions. Applying patent law to biological resources raises ethical, religious and socioeco-nomic issues. The patenting of gene sequences and micro­biological processes also raises scientific questions on the legitimacy of patents in this area.
     TRIPS Article 27.3(b) also requires new plant variet­ies to be patented or protected by a sui generis system or a combination of both. Many countries reject patents and are trying to develop or have developed national laws on plant variety protection that can protect plant breeders' rights as well as farmers' rights (see also 3.3.5). But they are under

pressure to adopt the 1991 International Convention on the Protection of New Plant Varieties (UPOV) as the "sui gen­eris" system, but this is more like a patent and favors plant breeders at the costs of small farmers.

IPR  provisions   in   Convention   on   Biological  Diversity (CBD). The entry into force of the United Nations Conven­tion on Biological Diversity (CBD) in 1994 (before WTO agreements came into force) raised important issues on ac­cess to biological resources and the fair and equitable sharing of benefits arising from the use of such resources, between countries of origin or source and user countries. There are provisions in the CBD that directly deal with IPRs. The pro­visions are in Article 16 and appear to be finely balanced. Article 16.5 states: "Contracting parties, recognizing that patents and other intellectual property rights may have an influence on the implementation of this Convention, shall cooperate in this regard subject to national legislation ad international law in order to ensure that such rights are sup­portive of and do not run counter to its objectives."
     This clause seems to recognize the IPRs can have a nega­tive effect on implementing the CBD and that contracting parties have to cooperate to ensure that IPRs are supportive of and do not run counter to the CBD's objectives. However, the clause itself has a conditioning term, namely, that the cooperation is subject to national and international law. It is also balanced by Article 16.2.
     Article 16.2 states that access to and transfer of tech­nology to developing countries shall be provided and/or fa­cilitated under "fair and most favorable terms, including on concessional and preferential terms where mutually agreed." In the case of technology subject to patents and IPRs, "such access and transfer shall be provided on terms which rec­ognize and are consistent with the adequate and effective protection of intellectual property rights. The application of this paragraph shall be consistent with paragraph 3, 4 and 5 below."
     Article 16.3 states that each contracting party shall take measures with the aim that parties (especially developing countries) that provide genetic resources are provided ac­cess to and transfer of technology which makes use of those resources, on mutually agreed terms, including technology protects by patents and IPRs, in accordance with interna­tional law and consistent with paragraphs 4 and 5.

Tensions between TRIPS and CBD. There are several areas of tension between critical aspects of TRIPS and the CBD and of relevance to many countries as they are signatory to CBD and TRIPS. Following are some examples:
•   Differences in rationale, origins and overall framework. TRIPS is an international agreement drawn up with the encouragement and active support of large corpora­tions to promote their technological dominance and gain additional margins of profit through obtaining pri­vate monopolies. The IPRs model contained in TRIPS is tilted heavily in favor of the rights and benefits of IPRs holders. Because WTO members are obliged to fulfill TRIPS obligations, TRIPS has facilitated the extension of its particular model of IPRs to the wide membership of the WTO. TRIPS is basically a commercial treaty with commercial objectives that largely benefit strong