Intellectual Property and Human Rights

Intellectual Property and Human Rights

A Paradox

Edited by Willem Grosheide

In the modern era where the rise of the knowledge economy is accompanied, if not facilitated, by an ever-expanding use of intellectual property rights, this timely book provides a much needed explanation to the relationship between intellectual property law and human rights law.

Chapter 14: A comment on 'Human rights as a constraint on intellectual property rights: the case of patent and plant variety protection rights, genetic resources and traditional knowledge'

Martin J. Adelman

Subjects: law - academic, human rights, intellectual property law, politics and public policy, human rights

Extract

14. A comment on ‘Human rights as a constraint on intellectual property rights: the case of patent and plant variety protection rights, genetic resources and traditional knowledge’ Martin J. Adelman* In a thoughtful analysis of various issues, both legal and moral, relating to traditional knowledge and genetic resources (Chapter 13), Professor McManis has proposed a major change to patent systems of the world, ‘requiring the disclosure of origin of genetic resources and/or traditional knowledge relied on and evidence of prior informed consent as a condition of enforcing an otherwise valid patent or plant variety certificate’. He does this even though he seems to recognize that it is fundamentally unfair for nations that have not enforced patent rights in the past to benefit from the extremely valuable information which the patent system has placed in the public domain through expired patents while at the same time seeking to be compensated for the use of its genetic resources which in the eyes of the patent system are also in the public domain. The same may be said for traditional knowledge to the extent that it is not maintained secret in the conventional trade secret law sense. It should also be remembered that everyone benefits from patented technology as it is technology that embodies an inventive leap over the prior art. It may be used for a fee during the life of the patents covering it and then it passes completely into the public domain. Further, Professor McManis recognizes in his text at...

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