Transcript The Law of the Sea and Intellectual Property Law

Marine Genetic Resources:
The Law of the Sea and
Intellectual Property Law
Charlotte Salpin
OUTLINE
 Setting the scene
 Relevant provisions of UNCLOS
 Relevant intellectual property law
 The nexus
 Objectives of UNCLOS and Intellectual
property law
 Some issues of compatibility
 Conclusions
RELEVANT PROVISIONS OF
UNCLOS
Areas Beyond
National Jurisdiction
High Seas (Part VII)
Area (Part XI; 1994 Agreement)
Marine Scientific Research
Part XIII
Technology Transfer
Part XIV
MARINE SCIENTIFIC RESEARCH
GENERAL PRINCIPLES
 No unjustifiable interference with other legitimate
uses of the sea (Art. 240)
 Shall not constitute the legal basis for any claim to
any part of the marine environment or its resources
(Art. 241)
 States and competent international organizations
are required to ‘make available by publication and
dissemination through appropriate channels . . .
knowledge resulting from [MSR]’ and ‘actively
promote the flow of scientific data and information
and the transfer of knowledge resulting from
[MSR], especially to developing States’ (Art. 244)
MARINE SCIENTIFIC RESEARCH
AREAS BEYOND NATIONAL
JURISDICTION
High Seas
 States have the
right to conduct
MSR in the water
column beyond
EEZ (Art. 257)
 Scientific research,
a freedom of the
High Seas (Art. 87)
Area
 States have the right to conduct
MSR in the Area (Art. 256)
 Carried out exclusively for peaceful
purposes and for the benefit of
mankind as a whole (Art. 143.1)
 ISA coordinates and disseminates
the results of research and analysis,
when available (Art. 143.2)
 States to promote international
cooperation, including by effectively
disseminating the results of
research and analysis, when
available, through ISA or appropriate
channels (Art. 143.3)
RELEVANT INTELLECTUAL
PROPERTY LAW
Patents
Trademarks
(e.g., “Abyssine”)
Geographical
indications
(e.g., “Rainbow”)
TRIPS
Budapest Treaty
[Filed at any stage of R&D]
Madrid system (Agreement and
Protocol)
[Downstream IP]
Paris Convention
Lisbon Agreement
TRIPS
[Downstream IP]
PATENTS
 Patentability criteria
 Novelty
 Inventive step
 Capable of industrial application
 Patentable subject-matter
 Disclosure of invention
 Patent owners
NEXUS
Objectives
UNCLOS
 peaceful uses of the
seas and oceans
 equitable and efficient
utilization of their
resources
 conservation of their
living resources
 study, protection and
preservation of the
marine environment
 economic and social
advancement of all
peoples of the world
Intellectual Property
 Reward intellectual
effort
 Stimulate research
 Promote creativity and
innovation
 Promote dissemination
and application of
innovation
 Encourage fair trading
(WIPO Handbook)
Relationship among
conventions
UNCLOS (art.311)
 “Shall not alter the rights
and obligations of States
Parties which arise from
other agreements
compatible with this
Convention and which
do not affect the
enjoyment by other
States Parties of their
rights or the
performance of their
obligations under this
Convention”
Patent instruments
 TRIPS: silent
 Budapest Treaty:
silent
NEXUS
Questions of compatibility
 Is patenting a claim to the marine
environment or its resources?
 Is the degree of confidentiality required prior
to the filing for patents in order to safeguard
the novel character of an invention
compatible with the requirement for
dissemination and publication of data and
research results?
Claims of exclusivity over
marine resources
ARTICLE 241
No legal basis for ter itorial and maritime claims
No legal basis for claim to the exclusive use of marine resources
No legal basis for ownership claim over marine resources
No legal basis for claim to the exclusive exploitation of marine resources
Publication and dissemination of
research results
 Issue of ownership of the results:
who holds the right to proceed to
publication and dissemination?
 Issue of how the results are
published and disseminated (time
and mode)
NEXUS
Avenues for consistent implementation
 Use of exceptions of the system, e.g.,:
 Research use (non-commercial uses)
exemptions
 Exclusion of diagnostic, therapeutic and
surgical methods for the treatment of human
beings or animals from patentability
 Compulsory licenses
 Conditions related to publication and
dissemination
CONCLUSIONS
 Compatibility between the law of the sea
and IP law is largely an issue of
implementation
 Need for studies on how patent instruments
have been implemented in relation to
marine genetic resources from ABNJ
 Explore possibility of using other types of IP:
trademarks and geographical indications
(downstream patenting); open-source
licensing
THANK YOU!