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Your source for expert commentary on IP management issues.
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About
Editor-in-Chief, Anatole Krattiger
Editorial Board
Concept Foundation
PIPRA
Fiocruz, Brazil
bioDevelopments- Institute
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Why This Topic Is Important
It is anticipated that biodiversity and indigenous peoples’ traditional knowledge, as sources of discovery
similar in some ways to research, may be important sources of new technology for the future. While the
underlying dynamics are similar—involving documentation, protection, uncertainty, risk, rights,
investment, partnership, R&D, and marketing—there are legal issues that set these sources of new
knowledge apart. This section discusses approaches, policies, and mechanisms for managing
biodiversity as an input to R&D, within the context of the rapidly evolving international and national legal
frameworks for biodiversity resources and traditional knowledge.
Key Implications and Best Practices: Section 16
Given that IP management is heavily context specific, these Key Implications and Best Practices are intended as starting points to be adapted to specific needs and circumstances.
- The technology transfer office should work with senior management to establish policies and systems for accessing indigenous or traditional knowledge (TK), bioprospecting activities, and benefit sharing in an equitable manner.
- Equity is a moral issue that has repercussions with respect to the distribution of benefits and environmental conservation. Thus, equity is in the eye of the beholder.
- Given the complexity of the health and agricultural industry and the enormous variety of applications and products that could be developed through the biodiversity access agreement (BAA), it is very difficult to know the profit margins for a company, product, or application ahead of time. Technology transfer, as well as information and data sharing, in the long run, may be more important than royalties.
- With adequate funds often lacking in public sector research centers, international donors should seriously consider loans or grants for training and equipment purchases. entering into bioprospecting activities, the public sector has much to gain by:
- having a clear institutional policy
- building national scientific capabilities, and along with it, the possibility of adding value to biodiversity elements, which increase the negotiating strengths and benefit sharing stipulated in contract agreements
- having internal capacity for negotiations, which includes adequate legal and counseling skills about the main aspects of commercial and environmental law
- Managers can identify which nonmonetary benefits companies could provide (such as capacity building, and technology transfer), that would be of greatest use to the institution. This approach will enable flexibility in benefit sharing and sustainability in the R&D relationships.
- Public sector institutions can provide important intellectual and programmatic leadership in how cross-cutting agricultural research programs can build bridges between TK and science and between organic agricultural and science-based agricultural practices. In so doing, they will help to advance the state of knowledge, the regulatory structure, and public perceptions of agricultural systems.
- The commonly held distinction between organic and biotechnology-based agriculture inhibits pragmatic approaches to creating agricultural management systems that build on local conditions, help alleviate poverty, respect local cultures and traditions, and benefit from a successful relationship with science. The world has much to gain by reconciling organic and biotechnology-based agriculture though realizing any gain will have to deal with the “power structures of knowledge,” and overcome limitations imposed by those people who maintain the distinctions.
 Abstract
Access and Benefit Sharing: Illustrated Procedures for the Collection and Importation of Biological Materials
by Carl-Gustaf Thornström, Lars Björk
Abstract:
The Convention on Biological Diversity (CBD) contains rules that clarify the rights and responsibilities of parties accessing biological resources from member nations. One aspect of the convention addresses the system that governs access to genetic resources and how the benefits arising from their use are shared. This legislation is commonly called the Access and Benefit-Sharing (ABS) program. Anyone pursuing collection activities, whether of tangible materials or intangible information, may be subject to these new regulations. Especially targeted are scientists and researchers who make significant use of proprietary genetic resources, biological matter, and related information, such as traditional knowledge and farming know-how. Therefore, it is important for all potential collectors to be familiar with the fundamental principles of ABS law as well as the procedures that must be followed in order to be fully compliant with the rules and regulations of the countries where collecting occurs. Well in advance of any collection activities, researchers should review the ABS situation, determine who could best answer questions about ABS, find authorized partners in the country of interest, locate relevant information on the specific ABS regime, and, most importantly, execute the documents, letters and agreements necessary to proceed with collection activities.
Abstract
Access and Benefit Sharing: Understanding the Rules for Collection and Use of Biological Materials
by Carl-Gustaf Thornström
Abstract:
The rules that govern the collection and use of biological matter have changed dramatically in the last 15 years. Arising out of the Convention on Biological Diversity (CBD), the Access and Benefit-Sharing (ABS) project applies to research carried out for either purely scientific or commercial reasons, for which organisms or parts thereof and/or related traditional knowledge are obtained from countries that are party to the CBD and their local and indigenous communities. Other agreements have added new ABS legislation to govern the acquisition and use of biological material and related information. Everyone—including tourists, nature conservationists, scientists, photographers, and journalists—is subject to these new regulations. But scientists and researchers who seek to access and use proprietary genetic resources, biological matter, and related information (such as traditional knowledge and farming know-how) are especially affected by the ABS project. It is essential for scientists and researchers to understand the fundamental principles of ABS. This includes knowing the relevant rules, regulations, laws, customs, and conditions for benefit sharing in the country where one intends to conduct research and/or collect samples. One must carefully plan ahead for any such activities by contacting key organizations and filing the proper documentation. Lack of planning may lead to unfortunate and undesired outcomes, including fines, imprisonment, deportation, and denied future access. Planning is critical.
Abstract
Bioprospecting Arrangements: Cooperation between the North and the South
by Djaja Djendoel Soejarto, C. Gyllenhaal, Jill A. Tarzian Sorensen, H.H.S. Fong, L.T. Xuan, L.T. Binh, N.T. Hiep, N.V. Hung, B.M. Vu, T.Q. Bich, B.H. Southavong, K. Sydara, J.M. Pezzuto, M.C. Riley
Abstract
Deal Making in Bioprospecting
by Charles Costanza, Leif Christoffersen, Carolyn Anderson, Jay M. Short
Abstract:
There is an upward trend in demand for intellectual property protection in agriculture. While international agreements exist to protect agricultural biodiversity, the specific rights, benefits, and responsibilities of parties entering into commercial agreements that involve the use of genetic resources still must be clarified. This chapter provides practical guidance for creating agreements around the use of biodiversity resources, as well as guidance that may provide valuable insights for creating similar agreements on the use of unique agricultural resources.
Abstract
Reconciling Traditional Knowledge with Modern Agriculture: A Guide for Building Bridges
by Klaus Ammann
Abstract:
In the years since the Convention on Biological Diversity was adopted, issues of traditional knowledge have come to affect the legitimacy of the multilateral trading system, in general, and its IP (intellectual property) aspects, in particular. In order to engage indigenous knowledge in furthering socio-economic development, policy-makers will need to reconsider the prevailing notion of a fundamental dichotomy between indigenous and scientific knowledge and begin to challenge both types of knowledge. This chapter concentrates on traditional knowledge—and how it relates to the ecology of agriculture, in all of its variants—and compares it to recent advances in scientific knowledge and the resulting applications of biotechnology in global agriculture.
The chapter argues that this dichotomy between traditional and scientific ways of knowing is not only artificial but problematic, in that it hinders exchange and communication between the two. The dichotomy between traditional knowledge and scientific knowledge is most apparent in, and lies at the root of, perceived differences between the approaches of today’s organic farming and technology-intensive farming systems. While indeed there are important differences, traditional knowledge and scientific knowledge share important similarities. Knowledge, in both cases, is based on human observation and experience and is tested, replicated, and transmitted within its respective community through social institutions and mechanisms put in place for that purpose. Moreover, deeper examination of the genetic integrity of plants used within organic and biotechnology-based agricultural systems shows that the respective crop varieties being used under each system are more similar than they are different. Increasingly, organic farming is building on scientific knowledge, and agricultural biotechnology is seeking to draw on traditional knowledge.
This chapter challenges policy-makers and scientists to examine and, ultimately, to move beyond those conceptual worldviews, or constructs, that maintain the current divide between traditional knowledge/organic agriculture and scientific knowledge/agricultural biotechnology.
By building the bridge between traditional knowledge and science and becoming free to draw upon the best existing ideas and practices from both, a larger palate is available to draw from. But, more importantly, by integrating the innovation systems of both traditional and scientific communities, a much larger range of new ideas and practices could be generated. The chapter calls such dynamic integration the “participatory approach” to agricultural innovation, building upon the “unifying power of sustainable development” and leading to balanced choices in agricultural production chains and rural land use.
Such an integration would require adaptations of Western social institutions and mechanisms of intellectual property in order to interface in a more nuanced fashion with quasi-public-domain knowledge that is external to the published records of Western science and IP systems. At the same time, indigenous communities will need to learn to adapt their social institutions and mechanisms that govern what is, in a sense, sovereign or communal property to coexist with and at times be translated into formal IP rights and practical uses that are external to their traditional systems.
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