Biopiracy and Beyond: A Consideration of Socio-Cultural Conflicts with Global Patent Policies
110 Pages Posted: 10 Jul 2006
This Article provides a fresh and multi-dimensioned approach to a long-standing claim of biopiracy made by developing countries and communities. The basics principles of patent law and policy are first established and distinguished from the claim that genetic resources and traditional knowledge from developing countries are being misappropriated in a variety of ways that are loosely referred to as biopiracy. The Article distinguishes rhetoric versus reality in the context of existing national and international patent law. In addition, the Article explains the underlying conflicts, misconceptions, and historical biases that have predisposed some to biopiracy claims. Similarly, the paper presents a new perspective on how the present landscape of international agreements, as well as negotiation stances, has failed to lead to satisfactory resolution of biopiracy claims despite years of heated advocacy at major international forums, including the World Trade Organization, the United Nations, and the Convention on Biological Diversity.
In addition to explaining the dynamics behind the current stalemate, this Article provides a template for moving forward. As a first step, the Article advocates that the piracy lingo be jettisoned and that substantive discussion instead focus on issues of mutual appeal to all countries. Drawing upon past success of issue-framing in the context of the access to medicine debate, this Article proposes two new foci that nations might universally agree on. For example, this Article suggests a novel parallel between the problems alleged to be biopiracy and current problems within Western patent law. In addition, the Article proposes a new internet-based process for promoting meaningful dialogue likely to be more effective than prior proposals because it avoids previous intransigent issues. This final proposal has broad application to many issues at the intersection of patent law and social policy, ranging from the proper scope of patentable subject matter, to the scope of permissible exceptions from patent liability.
Keywords: patent, biopiracy, WTO, TRIPS, CBD
JEL Classification: O31, O34, K33
Suggested Citation: Suggested Citation