Geoscience Reference
In-Depth Information
Among these technology areas, cumulative system technologies and science-based techno-
logies figure prominently. One of the underlying concerns is that scientists and researchers
arereluctant'…toconductresearchanddevelopmentwherepatentsongenesexistbecause
of fear of litigation' (KEI,
2012
). This is particularly true for the increasing patenting of
upstream results of basic research, including MSR. Because patents on 'upstream techno-
logies' and, in particular, on isolated DNA that is identical to its natural counterparts, hold
potential for limiting access to already available materials and research tools, patents may
act as a barrier to further innovation. Therefore, unrestricted or facilitated access to basic
information and discoveries as well as upstream research results, including those relating
to marine genetic resources, may be critical for the progress of science, in general, and of
Because of this, modern patent laws in most countries provide for some form of re-
search exemption . A research exemption is an exception to the exclusive rights granted
by a patent which allows researchers to undertake experiments on the patented invention
with a view to discovering unknown effects or making improvements on the invention,
without the prior consent of the patent holder (WIPO,
2009
). Examples can be found in
European national patent laws, which generally provide some form of research exemption,
especially with respect to activities whose results make improvements to a patented inven-
tion. However, research exemptions are not granted by the European Patent Convention
and there is currently little harmonization and legal certainty regarding the extent to which
marine genetic resources, which are covered by patent claims, may be used in the context
of MSR without the patent holder's authorization. Another example is the Hatch Waxman
Act of 1984, in the United States, which is the only statutory exemption in patent law, and
is limited to experiments carried out on drugs or medical devices for the purpose of ob-
taining approval by the Food and Drug Administration (Drug Price Competition and Patent
Term Restoration Act,
1984
).
Article30oftheTRIPsAgreementallowsWTOmemberstatestoprovideforresearch
exemptions, which must meet three cumulative conditions, namely that they: (1) do not un-
reasonably conflict with the normal exploitation of the patent and (2) do not unreasonably
