Geoscience Reference
In-Depth Information
the disclosed invention belongs to a particular technological domain (e.g. marine biotech-
nology).
Such a principle further requires that '… patents be available and patent rights enjoy-
able without discrimination as to the place of invention, the field of technology and wheth-
er products are imported or locally produced'. Thus, its general purpose is to protect right-
holders against arbitrary policies that may undermine their rights. The geographical dimen-
sion of this principle focuses on prohibiting discrimination based on the place of the in-
vention or the geographical location of the production facilities. Against this backdrop, the
question of whether a WTO member country may be allowed to take measures that would
exclude the granting of patents (or the enjoyment of patent rights) for inventions, which are
based on marine genetic resources that are taken from areas beyond national jurisdiction,
has as yet not arisen. However, such measures may be far reaching, since TRIPS Article
27.1 does not refer to the origin of the resources used for the invention, but rather the origin
of the invention itself. In that regard, it must be borne in mind that once a marine genetic
resource has been sampled from areas beyond national jurisdiction, the discovery and in-
vention (in the patent sense) will likely not take place in areas beyond national jurisdiction,
but in a laboratory on land, within national jurisdiction.
A potential norm that aims at establishing or preserving the public domain status of
marine genetic resources from areas beyond national jurisdiction, if such were the policy
objective,mayinvolveanobligationontheconcernedstatestoregulate(andsubjecttolim-
its) the entitlements that researchers may have to file patents on marine genetic resources.
The instruments that can be envisaged for enforcing these obligations could be of a con-
tractual nature. In particular, they can take the form of contract clauses associated with the
granting of research funding and/or authorizations or - when the material is received from
ex situ
sources - they can be inserted into Material Transfer Agreements (Krattiger
et al
.,
At the international level, the most relevant example of the above form of regulation,
which entails the management of a global public good through a private law contract, is
provided by the FAO International Treaty on Plant Genetic Resources for Food and Agri-
