Patents, Biotechnology and Human Rights: The Preservation of Biodiverse Resources for Future Generations
in BIOTECHNOLOGIES AND INTERNATIONAL HUMAN RIGHTS, p. 315, F. Francioni, ed., Hart Publishing, 2007
The patenting of biotechnological inventions potentially affects human rights in a number of ways. Human rights to identity and the practice of religion may be affected by the availability of patents on genetically modified human beings (or elements of the human body). Patents as mechanisms for market exclusion affect access to new medicines, including those based on biotechnological innovation. Access to medicines and health care are part of the panoply of human rights.
During the past decade, the international community has focused significant attention on the protection of biological diversity and the potential impact of patents and other intellectual property rights on that protection. All of mankind benefits from the preservation of biological diversity. Genetic resource stocks likely will be the source of future agricultural, medicinal and other innovations. The preservation of plant and animal species is important to the functioning and continuing evolution of the Earth’s ecosystem, and therefore to the preservation of human life. While the maintenance of biological diversity is not part of the traditional catalogue of protectable human rights, a generalized human interest in the preservation of such diversity might be considered part of the common human interest in the wellbeing of future generations.
Differentiated biological resources are concentrated in a group of megadiverse countries, almost all of which are developing countries. The geographic territories in which such resources are located are often populated by poor indigenous peoples. The exploitation of biological resources from territories inhabited by these individuals has the potential substantially to affect their economic well being. The maintenance of basic human rights, including rights to security, food and shelter, are dependent on a minimum level of economic welfare. The Convention on Biological Diversity (CBD) recognizes sovereign rights over biological resources located within national territories, in part with a view towards assuring that individuals benefit financially from biotechnological inventions derived from such resources. The potential for conflict between the objectives and terms of the CBD and the rules governing the international patent system has been debated since the conclusion of negotiations on the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) in late 1993. In 2006 this subject is on the active agenda of the WTO TRIPS Council, and it is being considered at the World Intellectual Property Organization (WIPO).
This chapter analyses the relationship between the CBD and the rules governing the international patent system with a view to making a recommendation regarding whether a multilaterally agreed mandatory requirement for disclosure of the source and origin of genetic resources in patent applications would aid in achieving greater complementarity. The chapter concludes that adoption of such a requirement would be useful. This chapter does not expressly address information referred to as ‘traditional knowledge’ except to the extent that such information is relevant to evaluating applications for patents on inventions under the generally applied criteria of patentability. Traditional knowledge may itself be protected as intellectual property distinct from patentable invention.