INTELLECTUAL PROPERTY, TECHNOLOGY TRANSFER AND GENETIC RESOURCES – AN OECD SURVEY OF CURRENT PRACTICES AND POLICIES (OECD, 1996)

[The following Summary, prepared for the Fourth Conference of the Parties to the Convention on Biological Diversity, Bratislava, 4-15 May 1998, was initiated by the Working Party on Biotechnology of the OECD Committee for Scientific and Technological Policy, and approved at its Sixth Session, 24-25 February 1998.]

In October 1996, the OECD published a report on "Intellectual Property, Technology Transfer and Genetic Resources" which reviews some of the links between access to genetic resources, equitable sharing of the benefits derived from them, technology transfer and intellectual property.

The report is based on replies by OECD countries to a questionnaire, formulated in the context of an OECD effort towards the implementation of the Convention on Biological Diversity.

The CBD is a permanent, world-wide commitment to conserving the earth’s biological diversity, but its objectives are complex, with no simple policy prescriptions. For example, the articles related to access to genetic resources (Art. 15) and access to, and transfer of, technology (Art. 16) raise a number of issues regarding intellectual property which need to be addressed by the international community.

The OECD report has been officially transmitted to the heads of the Secretariat of the CBD, the World Trade Organization and the Food and Agriculture Organization of the United Nations. A limited number of copies were distributed at COP-3 in Buenos Aires in November 1996. Since then, the report has appeared on the World Wide Web, and a Spanish translation has been published (Propiedad Intelectual, Transferencia de Tecnología y Recursos Genéticos, OECD, 1997).

To further contribute to the discussion of these complex issues, OECD countries have suggested a new effort to make this report more widely known.

The report explains why genetic resources are a special case for intellectual property protection, and how the new international context created by the Biodiversity Convention and the TRIPS agreement might influence the exploitation of genetic resources.

The different types of intellectual property relevant to biotechnology are summarised, and the issues that will arise in the complex process of implementation of the CBD, identified and analysed. The report explains essential features of intellectual property in order to remove misconceptions, in particular, that intellectual property rights constitute expropriation of genetic resources or of the knowledge and skills of indigenous peoples.

Effective intellectual property systems and the goals of the CBD are not in conflict, as shown in the report. This is important, as virtually all national responses to the OECD emphasise strong intellectual property laws and enforcement procedures as a prerequisite of foreign investment, technology transfer agreements and co-operation, under the CBD, as well as in other contexts.

Recognising that all countries have sovereignty over their genetic resources (CBD Article 15.1) the CBD also aims at securing benefits to countries which consent to access to their resources (there is ongoing OECD work on these and related issues, see the forthcoming "Handbook for the Implementation of Incentive Measures for the Conservation of the Sustainable Use of Biodiversity"). Such benefits can take the form of sharing in the results of R&D and the commercial utilisation of genetic resources (Article 15.7), as well as technology transfer (Article 16). Patents and other intellectual property rights may have a role in achieving the above objectives (Article 16.5).

Intellectual property in inventions will result from the development of genetic resources e.g. the isolation of medically useful substances from plants and animals or the transfer of valuable genes to crops of developed countries. The possibility of such rights will be an inducement to prospecting for genetic resources in developing countries; without it, such prospecting might not be undertaken. Possession of these rights gives their holder the encouragement to invest in the lengthy and costly development process from a protected position in the hope of success in terms of practical utility and commercial potential.

The survey which provided the basis for the report sought to discover what experience might have been gained already in OECD countries on mechanisms to link access to genetic resources with benefit-sharing as envisaged by the CBD. However, access legislation is being enacted or prepared in a number of developing countries, but its results are not yet apparent. There is a risk of inhibitory conditions of access and unrealistic expectations of early benefits to provider countries. This observation is made in the context of the developing sciences of bioinformatics and combinatorial chemistry which are likely to affect the traditional methods of bioprospecting to an increasing degree. The ability of these sciences to track through vast ranges of chemical structures for potential activity of interest may considerably extend the possibility of developing new products which are biologically more effective than the "lead" compounds found in nature.

Technology transfer, one of the main forms of benefit sharing contemplated by the CBD, also is discussed in the report. There are many modalities. The assignment or licensing of intellectual property rights is a common ingredient of such arrangements. As the report points out, if technology transfer is to bring real benefit to developing countries, the co-operation of the private sector, as the principal generators of technology, will also be required. Devising measures to induce private-sector owners of technology to transfer this technology to foreign organisations to the extent envisaged in Article 16 of the CBD, is a considerable challenge. It will require close co-operation among all parties concerned. It appears from the report that the challenge can be met if all parties see that real benefits are to be gained.