ATRIP Intellectual Property series
Edited by Jan Rosén
Chapter 6: Commercialization of genetic resources: leveraging ex situ genetic resources to shape downstream IP protection
Plant and microbial genetic resources exist in natural habitats and culture collections worldwide. Their scientific and economic value is rapidly gaining in importance, even though the laws governing them do not support ease of use. Genetic resources are subject to the overlapping jurisdiction of the Convention on Biological Diversity (CBD) and the Agreement on Trade Related Aspects of Intellectual Property (TRIPS). Neither of these regimes operates in a particularly access-friendly manner with respect to biological resources with imminent commercial potential. The CBD entitles countries to share benefits arising out of the use of resources originating in their territories. The scope, nature and duration of CBD obligations, and consequently of potential claims, are, however, often vague. Patent laws enacted under TRIPS, in a context of a strong growth market, fragmented patents and expensive product development, tend to function sub-optimally and allow formation of blocking patents and patent thickets. In combination, these regimes encourage a race to extract value by the beneficiaries of the entitlements created, which tends to diminish the ability to exploit high-value biological resources.
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