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Lecture 5

PUBPOL 373 Lecture 1: December 8th Reading Notes

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Public Policy Studies

December 8 Reading Notes The US Approach: Genetic Resources, Traditional Knowledge, and Folklore  The United States respects and recognizes the importance of protecting genetic resources, traditional knowledge, and expressions of folklore by facilitating equitable benefit sharing, eliminating erroneously issued patents, eliminating misappropriation of traditional knowledge, and preserving expressions of folklore.  In 1993, the Convention on Biological Diversity came into force. It represents a commitment by nations to conserve biological diversity, to use biological resources sustainably, and to share the benefits arising from the use of genetic resources fairly and equitably.  Article 8j of the convention draws a connection among traditional knowledge, folklore, and genetic resources by calling on nations to respect, preserve, and maintain knowledge, innovations, and practices of indigenous and local communities and to promote wider application with the approval of the holders of such knowledge and practices.  WIPO member states established an Intergovernmental Committee as an international forum for discussing the relationship between intellectual property and genetic resources, traditional knowledge, and folklore.  The concerns of traditional knowledge holders within the United States and other countries include: loss of traditional knowledge; lack of respect for traditional knowledge, the misappropriation of traditional knowledge, including use without benefit sharing and offensive use, and the need to preserve and promote the use of traditional knowledge.  Some holders of traditional knowledge fear that others will seek patents based on their long-held knowledge and reap the benefits from it. But an applicant trying to patent traditional knowledge likely cannot meet the three necessary requirements. Traditional knowledge is already known, so if it has been documented, it is no longer new.  The ability of a third party to request reexamination and the eventual cancellation of the claims when a mistake has occurred demonstrate that the current patent system works well to correct itself.  The importance of publishing traditional knowledge and making that information available to patent examiners internationally cannot be overemphasized. If traditional knowledge is documented, that knowledge may not be the subject of a patent, even if it is not widely known in an industrialized country.  Some traditional knowledge holders might want to keep certain aspects of their knowledge secret or limited to specific individuals or groups. If so, they may want to take steps to guard their knowledge as a trade secret.  Some holders of traditional knowledge want to be sure that any new discoveries derived from their traditional knowledge include an equitable sharing of benefits. These communities may want to negotiate contractual benefit-sharing agreements regarding new products or processes created through research using their traditional knowledge.  The Indian (Native American) Arts and Crafts Act prohibits the marketing of products misrepresented as Native-American made.  Inclusion of official insignia in the Database of Official Insignia of Native-American Tribes ensures that an examining attorney will be able to identify any official insignia that may preclude registration of a mark where the mark suggests a false connection with the tribe.  All trademark applications containing tribal names, recognizable likenesses of Native Americans, symbols perceived as being Native American in origin, and any other application that the USPTO believes suggests an association with Native Americans are examined by an attorney at the USPTO who has developed expertise and familiarity in this area.  Where the U.S. government, including the National Cancer Institute is involved in genetic resource research in other countries, it enters into benefit-sharing agreements with those countries to gain fair access to genetic resources and/or traditional knowledge  Agreements provided the source countries with short-term benefits that would accrue without having to wait and see whether promising discoveries were derived from their resources. The benefits included training source-country scientists in NCI laboratories or US universities’ laboratories and technology transfer.  The chances of a discovery becoming a commercial product is usually said to be one in 10,000  NCI requires that, if a promising potential drug is discovered and licensed to a pharmaceutical company, the company must negotiate an agreement so that benefits, such as part of the royalties, will be returned to the country.  The U.S. government also requires a contract when companies want to collect genetic resources from federally owned lands or from the approximately 56 million acres of land the federal government holds in trust for U.S. tribes and individual Native Americans. Enforcement: A priority for All Countries  Many countries have laws on the books that are TRIPS-compliant, but that much remains to be done to actually enforce those rights at the borders and in the civil and criminal court systems  US and other rights holders around the world are reluctant to invest in countries where, on a day-to-day basis, copyrights, patents, trademarks, and trade secrets are not adequately protected  The most critical obstacle to effective enforcement is the absence of a full understanding of the value of intellectual property rights to every nation that engages in international trade.  If you don’t respect intellectual property rights, no one wants to invest in your country. You won’t attract the foreign capital that you need to improve the lifestyle of your nation’s inhabitants  If a country allows piracy to go unchecked, its own industries – music, or film, or software – will likely find their own products being pirated along American ones. Since the domestic creators of music, or movies, or software, tend to rely more heavily on their own domestic markets for their livelihoods, a high level of piracy at home may hurt these domestic producers most of all.  Piracy can make it even tougher for domestic industries to compete with large foreign companies. In countries where every kind of CD, DVD, or software is available for a couple of dollars per disc, a local film studio or software publisher will find it very difficult to compete, based on price, with the latest Silicon Valley software or Hollywood blockbuster.  It’s reasonable, if you don’t have the resources to have a database of all the intellectual property rights that might be infringed, to at least have a mechanism so that others can bring information to your attention.  A country can be fully in compliance with the minimum obligations of the TRIPS agreement and still have a huge
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