The Nagoya Protocol: Balancing Innovation And The Protection Of Genetic Resources
July 13, 2016 (IP Flow) — In April 2016, scientists discovered how a plant, which is traditionally used in China to treat fever, liver and lung problems, holds chemicals with potential cancer-fighting properties. This research offers hope that the chemicals may one day lead to effective cancer treatments. The plant called “the Chinese Skullcap” is a member of the mint family and native to China.
Such a breakthrough may induce a pharmaceutical company overseas to fly to China to pluck as many of the plants as possible from the Chinese forests so that the company might make use of them to develop a new cancer drug and reap a huge income from them. This theoretical sequence of events raises, a fundamental question: Should the pharmaceutical company share the benefits, which it enjoyed through the new drug development, with China or a specific tribe in China that had been traditionally growing the plant?
The answer to this question can be found in “The Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization (ABS) to the Convention on Biological Diversity (CBD)”. The Nagoya Protocol aims to create greater legal certainty and transparency for both providers and users of genetic resources by establishing more predictable conditions for access to genetic resources and by helping to ensure benefit-sharing when genetic resources leave the country providing the genetic resources. The idea behind the Nagoya Protocol is that the efforts of indigenous peoples or local communities to conserve genetic resources (e.g. plant ingredients) be respected and fairly rewarded.
More interestingly for the readers of IP Flow, this benefit-sharing issue has long been discussed from the intellectual property perspective in the international arena.
At the World Intellectual Property Organization (WIPO), since 2001, “Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC)” has been working on how intellectual property can ensure the balanced and effective protection of genetic resources (GRs). The reason why no agreement has been reached at this Committee even after more than a decade of negotiations is because of divergent views on the relations between intellectual property and the benefit-sharing regarding genetic resources.
Last month, the 30th session of the IGC was held and the new text of treaty was proposed. I would like to delve a little deeper into the following controversial Article 3 of the text.
3.1 Where the [subject matter] [claimed invention] within a [IP Rights] [patent] application [includes utilization of] [is directly based on] [is directly based on the utilization of] genetic resources [their derivatives] and/or [traditional knowledge associated with genetic resources] each Party shall/should require applicants to:
(a) Disclose the [providing country that is the country of origin] [country of origin [and]] [or [if unknown],] source of the genetic resources, [their derivatives] and/or [traditional knowledge associated with genetic resources.]
This article was proposed by the countries that are abundant with genetic resources, mainly developing countries in Latin America and Africa. They are of the view that intellectual property can play a crucial role in implementing the Nagoya Protocol mentioned above; to put it another way, intellectual property system can help them get a share of the benefits that another country enjoyed through the use of their genetic resources. According to their reasoning, when an invention involves any use of genetic resources (e.g. plant constituents) and a patent application is filed for the invention, the application should disclose a source of genetic resources (e.g. a country where the plant was obtained), as the information on the source of genetic resources can facilitate a negotiation on benefit-sharing concerning the genetic resources between the provider of the genetic resources and the use of the genetic resources (i.e. the patent filer).
On the other hand, some developed countries including the United States, Canada, Japan and Korea, have been showing strong opposition to the proposal, because they believe that this disclosure requirement can put a great burden onto the industry (e.g. pharmaceutical companies) as it’s not always a piece of cake to trace all of the genetic resources they used to their origins. They are concerned that such a requirement may discourage the industry from filing patent applications and consequently may impede an innovation in this field.
Not only at WIPO but also at the World Trade Organisation (WTO), the similar proposal TN/C/W/59 is put on the table by developing countries. However, no compromise has been presented by both sides so far.
This issue indicates intellectual property can be closely linked to the outside world, in this case, biological diversity. While intellectual property is often regarded as a niche area, it is fair to say that intellectual property may overstep into other important social issues.