requirement of patentability in TRIPS has not prospered (Visser, 2004).

WIPO and WTO. Proposed binding WIPO norms to protect traditional knowledge and genetic resources from unauthorized and unremunerated misappropriation (i.e., "biopiracy") have been rejected as a threat to WTO IP rules (e.g., paragraph 211, WIPO, 2006a). The nature of the threat is, however, not specified, but likely relate to the collective stewardship of traditional knowledge, which from a classical IP viewpoint would represent an undermining of the individual status of patent ownership (Finger, 2004). It remains an option to further explore a developing country proposal to amend TRIPs Article 29 to require disclosure in patent applications of traditional knowledge and genetic resources used in the development of patented products (WTO, 2006a).3 Proponents of disclosure argue that disclosure would improve patent quality (Article 27.1), prevent abuse of the patent system and promote the public interest (Article 8), provide social and economic benefits to WTO members (Article 7) and make TRIPs supportive of the CBD, particularly its ABS provisions (Articles 1 and 15). Opponents of disclosure opponents contend that ABS is best implemented through contracts that offer a cash payment or other benefits in exchange for the rights to patent products developed from an agreed number of genetic resource samples (WTO, 2006b).

     Intellectual property regimes alone, no matter how comprehensive, fully implemented, and mutually supportive of other multilateral treaties, are insufficient to enable development of the seed systems needed to fulfill goals, and poorly designed and implemented regimes can be detrimental to achieving these objectives (World Bank, 2006).

Genetic resources in agriculture. Challenges to bringing the private rights of IPRs in harmony with the collective rights over traditional knowledge and local genetic resources are further complicated by the rights based on national sovereignty over the physical genetic resources, as established in the CBD. Apart from conceptual and legal challenges, this complication has led in the past years to practical problems in the exchange of genetic resources, which affects the agricultural use of genetic resources in plant and animal breeding more that any other type of use. Important steps have been taken in the sharing of benefits derived from the use of these resources in a multilateral way through the IT PGRFA's conclusion of the Standard Material Transfer Agreement The IT PGRFA confirms the Farmers' Right of protection of TK, which established a link with the debate in WIPO, the right of benefit sharing linking it further to

3 The information embedded in the genetics of the seed and the associated farmers' and scientific knowledge comprise a significant part of AKST. The value of TK appropriated for use in patented agricultural and medical products would represent at least $5 billion annually in royalties to developing countries, if TK were protected and licensed as patents are (McLeod, 2001). Just half of such a sum, if invested for the in situ conservation of agrobiodiversity and if distributed effectively to the often collective and indigenous stewards of that biodiversity, could help realize development and sustainability goals.

the CBD, and the right to participate in decision making at the national level on matters related to the conservation and sustainable use of plant genetic resources for food and agriculture. The IT PGRFA refers the implementation of these rights to the national level (Article 9.2C). However, it may prove difficult for national policy makers to implement these Farmers' Rights while avoiding conflicts among IPR, biodiversity and seed regulations with the right of farmers to save, use, exchange and see farm-saved seed.

Traditional knowledge (TK) and genetic resources. A review of technical papers in support of the WIPO negotiations has proposed that an "international enforcement pyramid" be constructed from existing practices to enable developing countries to control and sustainable use traditional knowledge and genetic resources (Drahos, 2006). The "enforcement pyramid" would integrate indigenous and national government practices and would be coordinated by a Global BioCollecting Society under the aegis of WIPO, FAO and the CBD. Complicating the construction of an effective enforcement mechanism for traditional knowledge and genetic resources are differences between indigenous customary law and governance, and national government jurisdiction, particularly where indigenous territories cross national boundaries (IIED, 2006).

      WIPO negotiations for a Substantive Patent Law Treaty (SPLT) present a framework for IP protection and enforcement very different from an enforcement pyramid based on national and indigenous group enforcement practices for traditional knowledge and genetic resources protection. The SPLT is part of a Patent Agenda to create and enforce a "global patent" with mechanisms far more specific and powerful than the TRIPs enforcement provisions (Article 41), and reduced transaction costs (WIPO, 2001). The U.S., EU and Japan are the main SPLT advocates and cooperate in patent matters. Some IP scholars are concerned that the SPLT could negatively affect public AKST and access to publicly held genetic resources, particularly in countries where rules on plant variety protection do not yet limit farmers' rights to save or exchange seed (e.g., Tvedt, 2005). The SPLT may also limit developing countries ability to shape their patent laws to their own specific needs, taking into account the development stage that they are in. SPLT is thus seen as supporting only a trade agenda rather than supporting a Development Agenda (WIPO, 2004). The debate is ongoing.

      Nevertheless, elements of the draft SPLT are being carried forward in Bilateral Investment Treaties (BITs) and so-called "TRIPs plus" provisions in bilateral Free Trade Agreements (FTAs)4. BITs with many of these parties define

4 "TRIPS plus" agreements assert TRIPS as a foundation but add some provisions that arguably conflict with TRIPS provisions. Recent FTAs require the patenting of biological resources, thus overriding the patenting exemption in TRIPs Article 27.3, and require countries to become members of the Union for the Protection of new Varieties of Plants (UPOV), thus closing the door for alternative breeder's rights protection systems, including earlier versions of the UPOV Act that are more compatible with farmers' seed systems (World Bank, 2006). These FTAs also prohibit parties from citing resource constraints as a legal defense for nonenforcement of IP obligations (Fink and Reichenmiller, 2005).