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Marine Genetic Resources: The Law of the Sea and Intellectual Property Law

Marine Genetic Resources: The Law of the Sea and Intellectual Property Law. Charlotte Salpin. OUTLINE. Setting the scene Relevant provisions of UNCLOS Relevant intellectual property law The nexus Objectives of UNCLOS and Intellectual property law Some issues of compatibility Conclusions .

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Marine Genetic Resources: The Law of the Sea and Intellectual Property Law

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  1. Marine Genetic Resources: The Law of the Sea and Intellectual Property Law Charlotte Salpin

  2. OUTLINE • Setting the scene • Relevant provisions of UNCLOS • Relevant intellectual property law • The nexus • Objectives of UNCLOS and Intellectual property law • Some issues of compatibility • Conclusions

  3. RELEVANT PROVISIONS OFUNCLOS Areas Beyond National Jurisdiction High Seas (Part VII) Area (Part XI; 1994 Agreement) Marine Scientific Research Part XIII Technology Transfer Part XIV

  4. MARINE SCIENTIFIC RESEARCHGENERAL PRINCIPLES • No unjustifiable interference with other legitimate uses of the sea (Art. 240) • Shall not constitute the legal basis for any claim to any part of the marine environment or its resources (Art. 241) • States and competent international organizations are required to ‘make available by publication and dissemination through appropriate channels . . . knowledge resulting from [MSR]’ and ‘actively promote the flow of scientific data and information and the transfer of knowledge resulting from [MSR], especially to developing States’ (Art. 244)

  5. High Seas States have the right to conduct MSR in the water column beyond EEZ (Art. 257) Scientific research, a freedom of the High Seas (Art. 87) Area States have the right to conduct MSR in the Area (Art. 256) Carried out exclusively for peaceful purposes and for the benefit of mankind as a whole (Art. 143.1) ISA coordinates and disseminates the results of research and analysis, when available (Art. 143.2) States to promote international cooperation, including by effectively disseminating the results of research and analysis, when available, through ISA or appropriate channels (Art. 143.3) MARINE SCIENTIFIC RESEARCH AREAS BEYOND NATIONAL JURISDICTION

  6. RELEVANT INTELLECTUAL PROPERTY LAW Patents TRIPS Budapest Treaty [Filed at any stage of R&D] Madrid system (Agreement and Protocol) [Downstream IP] Trademarks (e.g., “Abyssine”) Geographical indications (e.g., “Rainbow”) Paris Convention Lisbon Agreement TRIPS [Downstream IP]

  7. PATENTS • Patentability criteria • Novelty • Inventive step • Capable of industrial application • Patentable subject-matter • Disclosure of invention • Patent owners

  8. UNCLOS peaceful uses of the seas and oceans equitable and efficient utilization of their resources conservation of their living resources study, protection and preservation of the marine environment economic and social advancement of all peoples of the world (UNCLOS Preamble) Intellectual Property Reward intellectual effort Stimulate research Promote creativity and innovation Promote dissemination and application of innovation Encourage fair trading (WIPO Handbook) NEXUSObjectives

  9. UNCLOS (art.311) “Shall not alter the rights and obligations of States Parties which arise from other agreements compatible with this Convention and which do not affect the enjoyment by other States Parties of their rights or the performance of their obligations under this Convention” Patent instruments TRIPS: silent Budapest Treaty: silent Relationship among conventions

  10. NEXUSQuestions of compatibility • Is patenting a claim to the marine environment or its resources? • Is the degree of confidentiality required prior to the filing for patents in order to safeguard the novel character of an invention compatible with the requirement for dissemination and publication of data and research results?

  11. Claims of exclusivity over marine resources

  12. Publication and dissemination of research results • Issue of ownership of the results: who holds the right to proceed to publication and dissemination? • Issue of how the results are published and disseminated (time and mode)

  13. NEXUSAvenues for consistent implementation • Use of exceptions of the system, e.g.,: • Research use (non-commercial uses) exemptions • Exclusion of diagnostic, therapeutic and surgical methods for the treatment of human beings or animals from patentability • Compulsory licenses • Conditions related to publication and dissemination

  14. CONCLUSIONS • Compatibility between the law of the sea and IP law is largely an issue of implementation • Need for studies on how patent instruments have been implemented in relation to marine genetic resources from ABNJ • Explore possibility of using other types of IP: trademarks and geographical indications (downstream patenting); open-source licensing

  15. THANK YOU!

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