New Potential Treaty Text In WIPO Committee On Genetic Resources 01/06/2016 by Catherine Saez, Intellectual Property Watch 5 Comments Share this:Click to share on Twitter (Opens in new window)Click to share on LinkedIn (Opens in new window)Click to share on Facebook (Opens in new window)Click to email this to a friend (Opens in new window)Click to print (Opens in new window)A revised version of what is hoped by a large number of World Intellectual Property Organization members to become a treaty protecting genetic resources from misappropriation was issued today. The document [pdf] shows, as confirmed by sources, that work yesterday mainly focused on policy objectives, subject matter of the instrument, mandatory disclosure (of origin of genetic resources) in patent applications, and sanctions and remedies. IGC Chair Ian Goss The 30th session of the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) is taking place from 30 May to 3 June. According to sources, while the committee is mandated to breach gaps in position, little breaching is actually happening (IPW, WIPO, 30 May 2016). Articles bear heavy bracketing signalling the absence of agreement on the text. On the disclosure requirement, according to developing country sources, the IGC is still divided on the issue, though only the United States, Japan, South Korea and Canada are opposed to such disclosure, on a mandatory basis [clarified]. IGC members are expected to come back to the public plenary session this afternoon to comment on the new text. According to the IGC Chair Ian Goss’ methodology and programme [pdf] for this session of the IGC, a second revision of the text is expected to be released on the last day of the session. The chair’s document explains that informal meetings are “to facilitate, in a smaller, informal setting, discussion of the different approaches reflected in the Consolidated Document [pdf] and other working/information documents, and the core issues underpinning them, including opportunities to reach a common understanding and narrow existing gaps.” Share this:Click to share on Twitter (Opens in new window)Click to share on LinkedIn (Opens in new window)Click to share on Facebook (Opens in new window)Click to email this to a friend (Opens in new window)Click to print (Opens in new window) Related Catherine Saez may be reached at csaez@ip-watch.ch."New Potential Treaty Text In WIPO Committee On Genetic Resources" by Intellectual Property Watch is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International License.
Tim Roberts says 01/06/2016 at 4:30 pm The four countries you mention are not opposed to making disclosures of origin as such – they are opposed to making it mandatory. One objection by patent applicants is the unclarity about what is being asked. Where did you get it (which you usually know) or what is its ‘true origin’? ‘True origin’ (however defined) is a mixture of fact and law – neither of which is typically clear. Furthermore, disclosure is being requested for ALL genetic resources, not just exotic ones. That makes little sense. A survey has shown that the genetic resource most commonly mentioned in patents is E. coli. Reply
William New says 01/06/2016 at 10:56 pm Thanks for this input Tim. We have clarified that the four countries are opposed to mandatory disclosure. Your other points will stand in your comment for now. Reply
Tim Roberts says 02/06/2016 at 12:02 pm Fine. Of course, demandeurs will say that there is no point in the requirement if it is not mandatory. I’d disagree. The discussion of the topic has already encouraged patent applicants to say something about where the materials they work with have been obtained – where this is relevant. But in most cases, where these have been obtained is quite beside the point. Most ‘genetic resources’ mentioned in patents are freely available from a wide variety of sources, and no special merit attaches to the particular country or countries in which specific samples were ‘accessed’. Reply
Octavio Espinosa says 02/06/2016 at 5:07 pm Tim Roberts makes some valid points when pointing out that “‘true origin’ (however defined) is a mixture of fact and law – neither of which is typically clear,” and that requiring disclosure of origin of all and any genetic resources, not just exotic ones, may not make sense. However, one of the issues underlying the debate is whether a country from which a (exotic) genetic resource is taken and which serves as the sine qua non basis to develop a commercially successful product, has a legitimate interest in participating in the commercial benefits of that success. Connected to this issue are the questions whether a country has the right to regulate access to its genetic resources and, if so, whether it can choose the means of enforcing that regulation and penalizing infringement thereof. The position of some IGC countries seems to be that a person should be allowed to take (exotic) genetic material from a country in breach of that country’s law, use that material to develop a patentable product, file a patent application in the country from which the originating material was abducted, and expect that a patent be granted to him (or his successor in title). Such claim rides on the argument that compliance with access regulations should be kept separate from the grant of patents’ (or plant variety rights’) because the latter are ‘neutral’ incentives to innovation. I believe countries have the right to make the patent and PBR rewards conditional on overall compliance with national law. Perhaps the patent and PBR offices are not the most efficient checkpoints to prevent or tackle “biopiracy” cases, but their high-profile can send a powerful message that access law is taken seriously. Other similar high-profile checkpoints that could be explored are the regulatory marketing approval authorities for biologic and similar products obtained from (exotic) local genetic resources. Reply
Tim Roberts says 08/06/2016 at 9:35 pm Octavio, I can agree with much of what you say. In particular, I appreciate your emphasis on ‘exotic’ genetic resources. Part of the resistance to disclosure of origin in patent specifications arises from the insistence on disclosure for ALL genetic resources. A large majority of GR referred to in patent specifications are not exotic. Disclosing such origins in every case will not be a trivial task. This represents a waste of time and effort. Further, few argue that people are entitled to take materials from a country in breach of that country’s laws. If you go ‘bioprospecting’ in a country, you must respect that country’s laws. That (I suggest) is what national sovereignty means. A country is entitled (within fairly broad limits) to decide the laws that apply in its own territory. But the converse is that the country does not decide what goes on outside its own territory. That is a matter for other countries, or international agreement. Once a material has left its ‘country of origin’, that country loses direct control. Trade (typically) passes all rights in goods. There may be cases where a researcher knowingly invites someone in the ‘country of origin’ to export to him resources in breach of that country’s regulations. That is clearly wrong. Much more often the resources will be circulating freely outside their ‘country of origin’ and a researcher will not know what their ‘country of origin’ is (nor how to find out). In such circumstances an obligation to disclose origin is unreasonable. There may be a case for giving rights to a ‘country of origin’ over uniquely valuable materials found only there – I can’t see the logic of doing it for commonplace resources. Reply