Biotech Patents and Indigenous Peoples
Dennis S. Karjala
Arizona State University College of Law
Minnesota Journal of Law, Science & Technology, Vol. 7, 2006
This paper concentrates on how patent rights in biotechnology affect the legitimate concerns of indigenous peoples. It presents an analysis designed to separate two primary issues: the use of traditional indigenous knowledge as a starting point for producing a valuable product and the patentability of gene-sequence and gene-product information taken from living organisms, especially human beings. These problems, however, have consequences for all peoples. Establishing patents as an important cause of biopiracy and showing that gene and gene-product patents do not pose problems specific to indigenous peoples, this article attempts to outline the real problems that the global patent system poses for developing countries. Additionally, it concludes that the worldwide patent system has little direct adverse effect, because the problem is the danger of “leakage” through importing of patented products from developing countries back to developed countries with strong patent systems. Too much leakage can impair incentives for innovation even within the developed world, which would not be good for anyone. The main problem of biopiracy is not one of the availability of patents based on traditional indigenous information but rather one of failure to share fairly the profits that ultimately derive from developing the information into a valuable product. In the end, the extent the absence of patent protection in developing countries erodes the incentive for innovation in developed countries, either through the absence of a profitable market in countries lacking a patent law or through gray-market arbitrage that allows patented products to flow back into the markets that do serve as an important part of the incentive to innovate.
Number of Pages in PDF File: 45
Keywords: Biopiracy, Indigenous Peoples, Patent
Date posted: May 30, 2009
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