Trips on the High Seas: Intellectual Property Rights on Marine Genetic Resources
46 Pages Posted: 12 Feb 2012 Last revised: 23 Apr 2013
Date Written: February 10, 2012
Exploration and collection of marine genetic resources ('MGRs') has led to the identification of more than 15,000 molecules. As a result of these discoveries, the number of international claims for marine gene patents deposited between 1991 and 2009 reached 677, and dozens of products based on deep-sea organisms have been patented. From a legal point of view, it is unclear under which regime MGRs fall and under what conditions they can be patented. Three main legal instruments contribute to the parameters of their legal regime: the United Nations Convention on the Law of the Sea ('UNCLOS'), the Convention on Biological Diversity ('CBD'), and the Trade Related Intellectual Property Rights Agreement ('TRIPS'). This Article will demonstrate that the different legal regimes likely operate in support of one another to create a workable legal regime for MGRs.
The analysis is divided into two sections. The first part aims at identifying the principles and rules governing MGRs’ overall legal regime by demonstrating how the management and exploitation of MGRs falls within several legal systems. It analyzes the legal status of MGRs in the light of UNCLOS, the patentability of inventions derived from MGRs in the light of TRIPS, and MGRs’ access and commercial exploitation in the light of the CBD. It concludes that existing instruments, if considered and applied in isolation, are incomplete and inefficient to deal with MGRs. The second part explores alternative legal solutions as well as institutional mechanisms of coping with the management of MGRs. To this extent, it will analyze four legal solutions based on the joint application of existing legal tools, and three possible institutional scenarios that guarantee the principles of protection and the 'common' management of MGRs.
Keywords: marine genetic resources, law of the sea, biological diversity, patentability
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