Geoscience Reference
In-Depth Information
While the CBD promotes the development of a regime of contractual rules for the
exchange of genetic resources that is based on bilateral contracts, access to PGRFA
included in the MLS is done on the basis of the SMTA and hence does not require ad
hoc negotiations between providers and recipients of PGRFA. This reduces transac-
tion costs as 'access shall be accorded expeditiously, without the need to track indi-
vidual accessions and free of charge, or, when a fee is charged, it shall not exceed the
minimal cost involved' (International Treaty Article 12.3.b).
The International Treaty does not require a burdensome mechanism to track in-
dividual accessions, as providers of PGRFA do not have the obligation to keep track
of all subsequent transfers of the material. However, reporting obligations for both
providers and recipient are included in the SMTA in order to ensure that:
·
some benefits flow back to the MLS when a product based on MLS materials
is commercialized on the market; and
·
to enable the functioning of dispute-settlement procedures.
Through these reporting obligations, in conjunction with the obligation to use the
SMTA for any subsequent third-party transfer of PGRFA, the SMTA enables follow-
ing the chain of transfers between individual providers and recipients of PGRFA at
reduced costs.
As anticipated, with regard to subject matter exclusions from patentability, WTO members
are allowed to not grant patents for plants, animals, and essentially biological processes
fortheirproduction.However,microorganismsandmicro-biological ornon-biologicalpro-
cesses for the production of plants and animals must be protected (TRIPs Agreement,
Article 27.3(b)). Therefore, while bearing the above exceptions in mind, under the TRIPs
Agreement, countries are free to define subject matter exclusions that are broad enough to
entirely avoid the granting of patents on marine organisms and on their genetic parts and
components. On the other hand, countries are also free to protect biotechnological inven-
tions that relate to such organisms, if they meet the patentability requirements of novelty,
