IPDEV, Work Programme 8, Final Report May 2006: Disclosure of Origin in IPR Applications: Options and Perspectives of Users and Providers of Genetic Resources
by CHATAM HOUSE (Energy, Environment and Development Programme)
In recent years, there has been growing concern among biodiverse countries about misappropriation of genetic resources (GRs) under their sovereignty. In particular, these countries are concerned about intellectual property rights (IPRs) being granted for inventions based on these resources and their subsequent commercial exploitation by foreign companies and scientists, without any benefits returning to them. This has led to calls for reform of the intellectual property system. The introduction of disclosure requirements (DRs) into patent law has been proposed as one important measure to help countries maintain sovereign control over their resources. Proponents of this measure suggest that it will achieve this through increasing transparency within the patent system and by facilitating monitoring of the use of genetic resources. However, many remain unconvinced about the feasibility of implementing such requirements and their effectiveness in preventing misappropriation of resources.
Such requirements have already been introduced by a number of countries, and proposals are also being discussed for the introduction of international legislation on this issue. Indeed, DRs have become an important issue within international negotiations on trade and the environment, with ongoing debate within the Conference of the Parties to the Convention on Biological Diversity (CBD), World Trade Organisation (WTO) and the World Intellectual Property Organisation (WIPO).
With respect to the CBD, negotiations are underway on an international regime on access and benefit-sharing (ABS). Many countries consider that DRs should be an integral part of such a regime, in order to monitor the use of GRs or additionally, to enforce ABS requirements. Consequently, they have been one focus of debate within recent negotiations. The current draft text on the development of an international ABS regime includes extensive references to this measure – although the fact that these are all bracketed reflects the divergence of opinion on this issue.
In the WTO, DRs are being debated as part of the Doha round of trade negotiations. These negotiations are at a crucial phase, with the pressure on to conclude them by the end of 2006 to avoid collapse of this round of talks. DRs are on the agenda in discussions over the relationship between the TRIPS Agreement and the CBD. Developing countries are pushing for amendment of the TRIPS Agreement, which they regard as necessary to ensure mutual supportiveness of these agreements. However, a number of countries do not think that there is any conflict, and are opposed to dealing with issues linked to the CBD within this forum.
DRs are also being discussed in WIPO, where reform of the Patent Cooperation Treaty has been proposed to allow for DRs in international patent applications, and they are being considered as part of the discussions over further international harmonisation of the patent system, under the draft Substantive Patent Law Treaty (SPLT). Debate on the issue of DRs within WIPO seems likely to increase in momentum with the opening of discussions on the establishment of a development agenda for this organisation.