Disclosure of Origin

1
Disclosure of Origin towards equity or another
exercise in futility?

• Brendan Tobin
• UNU-IAS
• COP 8 Side event
• Disclosure Requirements in Patent Applications
• ICTSAD, UNU-IAS, IDDRI, CPDR, Chatham House.

2
Outline

• Arguments for disclosure
• Form of disclosure requirements
• Are disclosure requirements compatible with
  international law
• Resistance to Disclosure
• Potential Role of Certificates
• Devil in the detail

3
Arguments for Disclosure

• Policing use of genetic resources and TK is
  beyond the capacity of developing countries and
  communities
• Need for incentives to promote compliance with
  ABS laws and rights over TK
• Disclosure supports transparency
• Disclosure would shift the burden of proof
  regarding rights to use genetic resources and TK
  from the provider to the user
• Use a market tool to control market use

4
Disclosure and International law

• Disclosure is at the heart of IP law
• Requirement of disclosure of use of genetic
  resources or TK in patent applications is ok.
• Obligation to include evidence of a legal right
  to use resources in patent application may be ok.

5
Disclosure

• Requirements
• Declaration regarding use of genetic resources
  and/or TK
• If yes - provide evidence of PIC
• Potential checkpoints
• Patents
• Product approvals
• Publications

6
Resistance to disclosure

• Disincentive to invest in R D
• Majority of patents dont involve use of genetic
  resources
• Difficult to identify the origin of resources
• Patent offices dont have capacity to identify
  whether national ABS laws have been complied
  with.
• Determining equity of benefit sharing is beyond
  the remit of patent offices.

7
Defining a way out of disclosure

• Direct use
• Immediate use
• Access to genetic material

• Exclude all indirect use? e.g for identification
  of valuable proteins
• Excludes all uses in the future - technologies
  allow for storage for 50 years
• Excludes use of derivatives - bioinformatics

8
Some ideas on disclosure

• Origin/ source/ source legal provenance
• Prior informed consent may be evidenced by
  compliance with ABS law
• Fair and equitable benefit sharing is evidence
  of MAT enough?
• If not will this requirement undermine legal
  certainty and serve as a disincentive to use?

9
Role of Certificates of origin

• Need for simplified mechanism to demonstrate the
  origin of resources
• Means for tracing genetic resource flows.
• Act as evidence of prior informed consent.
• Proposals now exist for alternatives such as
  certificates of source and legal provenance.

10
Certificate schemes

• Origin
• Legal provenance
• Source

• provided by country of origin evidence PIC
• Provided by resource collection or other
  intermediary with legal title to resources
• Evidence of provider but does not evidence a
  legal right for commercial use.

11
Trade offs

• What will countries be required to give up to get
  disclosure requirements
• If WTO is not likely to adopt adequate DR - bring
  the issue back to CBD. Decision 6/24C
• Danger of a disclosure system which would
  establish limits on what can be done,
• Better no agreement than a weak one.
• May require revision of advanced legislation such
  as Decision 486 of the Andean Community