New Horizons in Environmental and Energy Law series
Chapter 11: Disclosure of origin of genetic resources and traditional knowledge
While the previous two chapters focused on positive measures to protect rights over genetic resources and traditional knowledge and the equitable sharing of their benefits, the next two chapters will deal with defensive measures to prevent their misappropriation. Disclosure of origin of these resources is one such strategy advocated by developing countries to prevent such misappropriation. The other, discussed in the next chapter, is the recognition of traditional knowledge as prior art for the purposes of establishing novelty in a patent application in order to forestall the patenting of such knowledge. The significance of these proposals is that they attempt to use elements of patent law for this purpose. Disclosure is a core requirement of patent law since, until full disclosure regarding all relevant aspects of the invention is made, it is not possible to determine whether it fulfils the criteria of patentability. Article 29.1 of the TRIPS Agreement states: Members shall require that an applicant for a patent shall disclose the invention in a manner sufficiently clear and complete for the invention to be carried out by a person skilled in the art and may require the applicant to indicate the best mode for carrying out the invention known to the inventor at the filing date or, where priority is claimed, at the priority date of the application. Developing countries have been advocating, as a defensive strategy against misappropriation of genetic resources and traditional knowledge, a different aspect of disclosure in regard to the subject matter of the patent application.
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