The Nagoya Protocol on Access to Genetic Resources was adopted under the Convention on Biological Diversity (CBD) in October 2010. Its purpose is to ensure equitable benefit sharing in exchange for genetic resources, and acknowledge and respect the rights indigenous communities have over their traditional knowledge and genetic resources. The Nagoya Protocol legally binds the parties to the CBD to adhere to biopiracy prevention standards and provide benefits, including economic benefits and compensation, to countries and communities in exchange for the use of their genetic resources. These rules cause the protocol to squarely intersect with the international intellectual property system. Therefore, the management of this crossing of the rules and the IP system falls to the United Nations Conference on Trade and Development (UNCTAD). As yet only 92 countries have signed the Nagoya Protocol and 16 have ratified it. The protocol cannot come into force until 50 states have ratified it.

UNCTAD will be producing a handbook exploring the IP implications of the Nagoya Protocol later this year and met towards the end of April to work on the publication. Thus far the handbook discusses benefit sharing, sources of intellectual property law and international law, contract law, disclosure of origin, whether life forms are patentable, the limitations of and exceptions to intellectual property laws, the sources of and arguments for active traditional knowledge protection, and geographical indications.

Thus far the handbook’s authors have been open with their criticism. Hartmut Meyer, biologist and consultant, authored chapter 4 on the positive protection of traditional knowledge. Meyer highlighted as concerns the actual economic potential of traditional knowledge, the type of IP rights that are needed, and the likely struggle to prevent undue focus on pharmaceuticals alone.

David Vivas-Eugui, consultant and former senior economic officer at UNCTAD, authored chapter 5 of the draft handbook. Vivas-Eugui focused more on geographical indications (GIs), or goods whose specific geographical origin imbues them with certain qualities, reputation or characteristics. He points out that GIs might play a role in conservation, but only if the technical specifications of the goods actually have sustainable practices incorporated into them. The mere existence of GIs in biological resources and the traditional knowledge contained in their technical standards might be part of successful challenges of novelty in some patent applications.

One of the biggest issues to be overcome, however, is the failed promise of benefit sharing. There has been very little benefit sharing with developing countries on the part of industrialized states over the past several decades. Any company or individual can develop a commercial product based on genetic resources from the South. In many cases, that “inventor” can even file a patent on it. Can you guess the nationality of the U.S. patent holders for Pakistani Basmati rice, Thai jasmine rice, and Indian turmeric and neem? Right, these were all American patents granted to American citizens despite what can only be called a resounding failure to innovate given that each of these things had been in traditional use in another country for centuries.

Although the CBD is, technically, legally binding, each participating country must develop its own legislation to implement a means to enforce it. Developing nations have mostly done this work, but, unsurprisingly, almost none of the developed nations—those who are in violation—have. So users of ill-gotten genetic resources in the First World are still technically using those resources without benefit sharing legally, and since these companies and individuals nearly always get their resources from “middle men” who collect genetic resources (like universities) they are one further step removed from the problem at hand.

Will the Nagoya Protocol and its handbook change these problems? The protocol takes a stronger stance than has been seen in the past, placing the burden on the industrialized countries. However, this bark isn’t backed up with much of a bite. There are no sanctions for failure to comply; there is nothing more than political pressure. Furthermore, if a disputed “genetic resource” has already been in use in an industrialized country, the Nagoya Protocol probably won’t cover it.

About the author

Karla Lant

Karla Lant is an Adjunct Professor for Northern Arizona University and a freelance writer. A former trial attorney in major felony criminal defense, her areas of legal expertise include forensic science, intellectual property, biotechnology, and constitutional law. Lant also focuses on tech trends, science and education in her work.

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