The Andean Community (formerly Andean Pact) was established by the Cartagena Agreement of 1969 to promote social and economic integration. It has five member states: Bolivia, Colombia, Ecuador, Peru and Venezuela. The Community has common laws governing rights to biodiversity in the form of industrial property (patents), plant breeders' rights and access to genetic resources. A common agreement on biosafety is under development, as is a special regime or common norms on rights related to traditional and indigenous knowledge.

Patent Law The Common Regime on Industrial Property of the Andean Community was adopted by Decision 344 in 1993. It harmonizes the rules, rights and obligations relative to patents, utility models, industrial designs, trade secrets, trademarks and denominations of origin but maintains national IPR offices and procedures. Decision 344 excludes from patentability in the member states: animal species and breeds (especies y razas animales) and essentially biological processes for their creation inventions on materials which compose the human body and the genetic identity of the human being inventions related to pharmaceutical products which appear in the essential drugs listing of the World Health Organization inventions contrary to human or animal health or life, conservation of plants and the protection of the environment. Plant varieties may therefore be protected by patent or plant variety protection in the Andean countries, unless national PVP laws provide otherwise (cf. ban on double protection in the UPOV 1978 Treaty). No formal provisions for opposition exist, but during the 30 days following publication of the patent application in the Official Gazette, third parties may lodge comments questioning the patentability of the invention.

Plant Variety Protection Decision 345 of the Andean Community establishing a Common Regime for the Protection of Plant Breeders' Rights was adopted on 21 October 1993. Its provisions are legally binding in all the member states and must be regulated through national law. Decision 345 provides a title of IPR protection for breeders of all cultivated plant species that are new, distinct, uniform and stable along the lines of the UPOV 1978 Treaty with the following exceptions. Drawing from UPOV 1991: the breeders' right extends to the harvest of protected varieties and to "essentially derived" varieties; there is no ban on double protection, meaning member states may permit patenting of plant varieties simultaneously. A farmers' privilege to reproduce PBR-protected material for private consumption and a limited breeders' exemption to use protected varieties as parental materials are maintained.

Access to Genetic Resources On July 17, 1996, the Cartagena Commission of the Andean Community promulgated Decision 391 laying out a Common Regime on Access to Genetic Resources. The regime is legally binding on all member states although they may draw up national legislation incorporating its provisions. Decision 391 applies to genetic resources (found in ex situ and in situ conditions), their intangible components (traditional knowledge and associated information) and their derivatives of which the member states are countries of origin. It formally excludes from its regulatory ambit all materials of human origin (and products derived from them) and the exchange of genetic resources and knowledge between indigenous, Afro-American and local communities according to their customary practices. The access regime requires the processing of a contract with a National Competent Authority prior to acquisition of material or knowledge. Rules and sanctions are fully laid out. They are premised on prior informed consent of communities and provisions for benefit-sharing in accordance with the Convention on Biological Diversity. Access to traditional and indigenous knowledge requires the elaboration of a special regime, which is currently under development. Unclear in the Decision are whether its provisions extend to ex situ materials collected prior to its entry into force and that of the CBD, and how member states may share benefits on commonly held materials and knowledge.

Community Rights The Andean Community is drawing up a special regime on rights to traditional knowledge associated with biodiversity. It will be legally binding on the member states.

Sources - "Decisión 391: Regimen Común sobre Acceso a los Recursos Genéticos", Junta del Acuerdo de Cartagena, Gazeta Oficial, Número 213, Lima, 17 de julio de 1996. - "Decisión 344: Regimen Común sobre Propiedad Industrial", Junta del Acuerdo de Cartagena, Lima, 21 de octubre de 1993. - "Decision 345: Regimen Común de Protección a los Derechos de los Obtentores de Variedades Vegetales", Gazeta Oficial, 29 de octubre 1993. - Kerry ten Kate, "The Common Regime on Access to Genetic Resources in the Andean Pact", Biopolicy, Vol 2, Paper 6, 1997. - Alan J Jacobs (ed.), "Digest of Decision 344 of the Commission of the Cartagena Agreement", Patents Throughout the World, Clark, Boardman and Callaghan, New York, Release #47, July 1994.