TOWARD A NEW ERA FOR
School of Public Health, University of Alberta, Canada
Faculty of Law, McGill University, Canada
INTERNATIONAL EXPERT GROUP ON BIOTECHNOLOGY,
INNOVATION AND INTELLECTUAL PROPERTY
An Era of New IP based on
Lessons from Case Studies
◦ Indigenous Knowledge
The Innovation Partnership
For better or for worse, biotechnology
is at the centre of current debates
about health care, the environment,
food and development.
For a decade, there have been clear
signs that the present way we deal
with intellectual property is breaking
Recognizing the Problem
Our team recognized the need for a new
era in IP, in which the biotechnology
industry will need to become more open
We recognized that the stories we told
ourselves about the primacy and
necessity of patents and other IP rights
are wrong, and that there are universal
barriers to collaboration.
Many were born of a lack of trust among
A lack of infrastructure threatens the ability
of LMICs to participate in biotechnological
No one actor has the knowledge or capacity
to carry out innovation and to distribute new
products and services to those who need and
Sharing and collaboration are key to future
While there are certainly products that are on
the market today because of IP, there are
certainly others that were never developed or
never delivered because of it.
The move from Old IP to New IP
At the heart of the move from Old IP to
New IP is an emphasis on
collaborations and partnerships
instead of hoarding and distrust.
Collaboration requires breaking out of
the ruts in our thinking that have
plagued Old IP.
We need more and better
Recommendations - Government
Pay attention to all the components of innovation,
such as health and environmental regulations,
the judicial system, tax rules and marketplace
regulation, and not simply IP.
Work with industry to support the creation of
independent trust builders to mediate disputes,
encourage dialogue and to engage indigenous
and local communities in policy development.
Develop Public-Private Partnerships to conduct
early stage research including through the
sharing of health related data while protecting
Support the development and dissemination of
novel business models that feature collaboration.
Collect standardized patent-related
information, including license data as
they are doing in Japan.
Assist developing countries and NGOs
in finding out which patents exist in
order to enable licensing.
Recommendations - Industry
Establish an independent, non-profit
technology assessment organization to
evaluate new biotechnology products
from developing countries.
Participate actively in the creation of
Public-Private Partnerships and other
Be transparent about their patent
Develop new business models that
promote partnerships and collaborations.
Recommendations - Universities
Develop clear principles relating to the use and
dissemination of their intellectual property and
promote greater access and broad licensing.
Develop measures of the success of their
transfer of technology based on social returns
rather than on the number of patents they hold.
Enter into collaborations between developed
and developing countries to ensure that
developing country doctoral and post-doctoral
students have opportunities to study and work
TK Case Study: The Problem
Indigenous communities concerned about
protecting TK from inappropriate use.
Bio-piracy vs. Bio-prospecting.
Has lead to calls for an international
regime to recognize indigenous rights
over TK and other expressions of culture.
Legal entitlement to a share in benefits
from commercialization/use of TK.
Enhances biological and cultural diversity
Till recently, international discussion
focussed on property rights.
The Problem with Intellectual
Property Rights for TK
No one definition of TK.
IPRs are time limited.
Require disclosure into public domain.
Much TK inalienable.
May be inappropriate to use TK outside
Communally held, may be diffuse.
May be difficult to identify all
communities holding TK or
organisations/individuals with whom to
negotiate access rights.
Lessons from National Case
Culturally and biologically diverse country.
Legal and administrative framework for ABS
based on property rights.
Problems with administration and
overlapping property rights claims.
The legal framework is not necessarily
balanced against other national interests in a
developing country such as establishing an
endogenous research base and bio-
innovation industry founded on Brazil’s rich
Legal framework being reconsidered.
Lessons from National Case
Also rich in cultural and biological
ABS laws implemented 2006 and
constitutional protection of indigenous
peoples and recognition of customary
Interests of indigenous peoples require
enforcement of laws, not just existence of
laws crafted by IP lawyers.
Need laws crafted in consultation with
indigenous communities and with their
interests in mind.
Need reverse capacity building process
for policy and law makers about TK and
the customary laws and values that
govern its development and use.
Appropriately balanced laws essential for
environmental and natural resource co-
Vast geographic area
Rich in natural resources
Undergoing rapid change due to resource
Impacted by climate change
Significant proportion of the population
History of injustice, discrimination and
Many social problems
Ability to maintain TK and protect its role
in structuring community relationships is
Most of Northern Canada now covered by
modern Land Claims or Self-Government
Grants of autonomy to structure affairs in
natural resource management, education,
parts of health, social services and
natural resource management.
Co-management boards use western
science and indigenous knowledge
systems, e.g., MVEIRB
New scientific collaborations and
funding structures based on needs of
Problem is lack of capacity for
governance etc. And resources
TK is as varied as the cultures within
which it originates and flourishes. No
single set of laws can meet the interests
of all indigenous peoples in promoting
and protecting their TK.
Promoting autonomy and land rights
rather than property is the key.
An appropriate balance needs to be struck
between national economic interests and
the needs of the communities to which TK
owes its existence.
International discourse is shifting
away from property rights to
misappropriation or unfair dealings
Recognition of the need for flexibility
in addressing the differing interests of
Other Case Studies
Aligning metrics with mission for
biomedical publicly funded research
Distribution of Plant-Derived Vaccines
Design and implementation of
Canada’s compulsory licensing laws for
access by developing countries to
UNITAID essential medicines patent
The Innovation Partnership
An independent, not-for-profit consultancy firm
based in Montreal, Canada that draws on the
research of the International Expert Group.
Work ranges from policy analysis to coordinating
TIP helps decision-makers develop and implement
IP policies which foster innovation, improve access
to new products and support scientific
TIP advises public and private entities, conducts its
own policy-oriented research, offers executive
training and works as a trust builder in order to find
common ground among stakeholders with divergent
We thank SSHRC for its innovative
funding programme that allowed this
multi-year, international and multi-
stakeholder study to take place. I also
would like to thank CIHR, the NIH,
Canadian Stem Cell Network, and
Genome Canada that have supported
components of this project.