Intellectual property rights

Transcript

1. Intellectual property rights Intellectual property rights Deependra Dhakal Deependra Dhakal 2019/04/04 (updated: 2020-10-11) 2019/04/04 (updated: 2020-10-11) 1 / 14 1 / 14
2. Background Law and science meet here. Foster sharing of economic incentives to making available traditional knowledge, to conserve it through use, and thereby enhance the livelihoods of farming and indigenous communities and reverse the decline of biodiversity, upon which, in return, long-term food security is based. [Rights to plant genetic resources and traditional knowledge, 2006] Since the adoption of convention on Biological Diversity (CBD) in 1992, the law of plant genetic resources (PGR) and the legal status of traditional knowledge (TK) has attracted increasing attention. Agreement on Trade related Aspects of Intellectual Property Rights (TRIPS Agreement) within the World Trade Organization (WTO) in 1995. International Treaty on Plant Genetic Resources for Food and Agriculture in (ITPGRFA) 2002. 2001 Doha Agenda of the WTO explicitly endorsed the issue of traditional knowledge as a subject for further work. What does it take to be a patent attorney or a legal counsel ? [Careers, by Cameron walker, nature, Finding a balance; 31 July 2014] World Intellectual Property Organization (WIPO) 2 / 14
3. Traditional knowledge Interrelationship between level of biodiversity in a specific region with cultural distinctiveness of its inhabitants. Specific knowledge of communities living in close relationship to their environment: traditional knowledge. This has been integrated in the Rio Process, and in the process to revise the International Undertaking on PGRFA, and it has recently been confirmed and enhanced by the outcome of the World Summit on Sustainable Development. The CBD speaks of 'traditional knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity' (Article 8(j)). 3 / 14
4. Traditional knowledge TK has common features for both indigenous as well as farming communities: Information is not an individual creation, but the achievement of a specific community. It cumulates over many generations and evolve accordingly. Managed by and exchanged through customs or customary laws. Close interaction exists between TK and the surrounding ecosystem. According to the Four Directions Council, 'indigenous peoples possess their own locally-specific systems of jurisprudence with respect to the classification of different types of knowledge, proper procedures for acquiring and sharing knowledge, and the rights and responsibilities which attach to possessing knowledge' 4 / 14
5. Farmer's right Intellectual contribution of farmers to the diversity of crop varieties and animal breeds is emphasized in a great variety of documents: for instance, in the 'Farmers' Rights Charter', a document drafted by Indian Farmers' Unions. It is stated that 'farmers are the original breeders and through their breeding science and technology have produced the rich diversity of crop varieties and animal breeds as a gift to the world'. Guiding thoughts: Farmers ought to have the right to 'participate fully in any benefits derived from the improved use of these genetic resources' and, of course, in the ITPGRFA (Preamble para. 7 and Article 9.1). Farmers' innovations take place collectively and cumulatively, and that therefore farmers' rights, arising from their role as conservators and breeders, are community rights. 5 / 14
6. PBR and varietal description Often sui generis protection is mentioned in connection with PBR. Sui generis means 'of its own kind' or 'special', and sui generis protection refers to protection of plant breeders' rights with forms other than patents. The best known known sui generis system is the one that is provided under the UPOV Convention. Under UPOV, PBRs are called Plant Variety Protection (PVP). As of 9 November 2004, the UPOV Convention had 58 member countries. UPOV sets forth the minimum protection that the member countries should grant for the developers of new and distinct plant varieties (UPOV, 1991). Based on the concept that new varieties can be accurately recognized and maintained as discrete and unique units. Morphological description is important for: The award of PBR and tests for distinctness, uniformity and stability (DUS); The control of seed production by certification to ensure seed sold for agricultural production is true to the variety it is claimed to be; and The control of variety purity at the point of final sale, e.g., from the farm to the food processor. Two form of sui generis protection are offered in the US: PVP protection and, Plant Patent protection (An act was enacted in 1930. It may be granted to new and distinct plant varieties that are invented or discovered, although excluding tuber-propagated plants and plants found in uncultivated areas. Plant patents are issued for 20 years from the date of filing.) 6 / 14
7. Institutions related to Intellectual Property Rights Institutions related to Intellectual Property Rights 7 / 14 7 / 14
8. UPOV International Union for the Protection of New Varieties of Plants (Union International pour la Protection des Obtentions Vegetales; UPOV) was established in 1961. It seeks to protect new varieties of plants both in the interest of agricultural development and of plant breeders. UPOV sought from the outset to provide incentives to the private sector to engage in commercial plant breeding, by introducing so-called plant breeders' rights, aka. Plant Variety Rights. Agreed guidelines for the conduct of tests and standardization of variety descriptions based upon the morphology of the grain and plant. PBR is an IPR, often described as plant "patent" Breeders can claim royalties on seed sold. Once granted, PBR ecognizes the exclusive rights of individual plant breeders to produce or reproduce protected varieties, to condition them for the purpose of propagation, to offer them for sale, to commercialize them, including exporting and importing them, and to stock them with a view to production or commercialization (Article 14.1 UPOV). Like any patent right, PBR expires after 20 years. 8 / 14
9. TRIPS and IPRs General Agreement on Tariffs and Trade (GATT) contains important provisions covering the protection of intellectual property in the agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS). For most member countries ratification of GATT means membership of UPOV and a PBR system based upon plant morphology. Plant breeders will still use morphological characters to purify candidate varieties before submitting them for tests and trials, and seed traders will still use morphological characters to verify variety at the point of sale. However, the science of systematics is being revolutionized by molecular technologies. Concept of "Essentially derieved varieties" 9 / 14
10. Intellectual property law in plant breeding Intellectual property law in plant breeding 10 / 14 10 / 14
11. Copyright A copyright is a type of IP protection for 'authors' of original works. Protects an original work and allows the author an exclusive right to reproduce the work, prepare derivatives of it, distribute copies of the work and perform the copyrighted work publicly. Were mportant, historically, in protecting the rights of artists and authors. Today, copyrights are becoming more and more important in protecting the rights of database developers. In relation to plant breeding, copyrights may be a relevant means of protecting, for example, GIS databases supporting breeding, or databases containing gene sequences. 11 / 14
12. Patent Is it possible to patent DNA sequences if they have a known biological role, as well as processes and methodologies, such as tissue culture protocols or transformation methods. - Patent can be applied for if (in general): an 'invention' is not patented already, if you can demonstrate a significant novel step, and it is 'not obvious' Clearly these have definitions (and interpretations of definitions) attached to them So increasingly, if researchers make any sort of breakthrough they will tend to consider patenting to protect their intellectual property (IP). In other words, they can potentially capture value from exploiting that technology either directly, by exploiting it and preventing others from doing so, or indirectly, by licensing others to allow them to use the technology, perhaps subject to royalty payments. For commercial application, in the very broadest sense, you have to come to a written agreement with the patent holder. If anyone makes the same parent cross combination and selects a 'different' cultivar from the resulting progeny, they would equally be in infringement of the patent rights. 12 / 14
13. Trademark A trademark is a word, phrase, symbol, design or a combination of those, that distinguishes the source of one's goods or services from those of others, e.g. Kodak(R). A trademark can be valid only when it is used in connection with the goods or services in commerce. As in other industries, trademarks are also becoming increasingly important for the seed industry to brand its products. A remarkable advantage of a trademark is that it is valid as long as it is in use in commerce. When the limited protection time of a patent or plant variety protection expires, a trademark can still be used to inform the customer of the specific qualities of the product. Outside of breeding industry, Kodak(R) is again a well known example: the patent right of the regular black and white film of Kodak expired about a hundred years ago, but still everybody knows exactly what they buy based on the strength of the trademark. 13 / 14
14. Trade secrets Trade secrets are probably the oldest and the cheapest way to protect one's IP: having a trade secret simply requires as the term indicates, that the IP is kept secret. A trade secret could for example be a composition of a culture medium or a method to transform a plant species. A typical trade secret in the context of plant breeding is having the parent lines of a hybrid variety kept secret. The positive aspect in trade secrets, in addition to its low cost, is that there is no expiration date. The negative side is that once the secret is out, the protection is gone and anyone is free to use the know- how. 14 / 14