Back to Back Certificate of Origin

							Disclosure of Origin – towards
 equity or another exercise in
            futility?
                    Brendan Tobin
                       UNU-IAS


                   COP 8 Side event
     Disclosure Requirements in Patent Applications

    ICTSAD, UNU-IAS, IDDRI, CPDR, Chatham House.
                Outline
• Arguments for disclosure
• Form of disclosure requirements
• Are disclosure requirements compatible
  with international law
• Resistance to Disclosure
• Potential Role of Certificates
• Devil in the detail
    Arguments for Disclosure
• Policing use of genetic resources and TK
  is beyond the capacity of developing
  countries and communities
• Need for incentives to promote compliance
  with ABS laws and rights over TK
• Disclosure supports transparency
• Disclosure would shift the burden of proof
  regarding rights to use genetic resources
  and TK from the provider to the user
• Use a market tool to control market use
  Disclosure and International law

• Disclosure is at the heart of IP law
• Requirement of disclosure of use of
  genetic resources or TK in patent
  applications is ok.
• Obligation to include evidence of a legal
  right to use resources in patent application
  may be ok.
                Disclosure
• Requirements:
  – Declaration regarding use of genetic
    resources and/or TK
  – If yes - provide evidence of PIC
• Potential checkpoints
  – Patents
  – Product approvals
  – Publications
      Resistance to disclosure
• Disincentive to invest in R & D
• Majority of patents don’t involve use of
  genetic resources
• Difficult to identify the origin of resources
• Patent offices don’t have capacity to
  identify whether national ABS laws have
  been complied with.
• Determining equity of benefit sharing is
  beyond the remit of patent offices.
Defining a way out of disclosure
• Direct use          • Exclude all indirect use?
                        e.g for identification of
                        valuable proteins


• Immediate use       • Excludes all uses in the
                        future - technologies
                        allow for storage for 50 +
                        years

• Access to genetic   • Excludes use of
  material              derivatives -
                        bioinformatics
    Some ideas on disclosure
• Origin/ source/ source legal provenance
• Prior informed consent – may be
  evidenced by compliance with ABS law
• Fair and equitable benefit sharing –is
  evidence of MAT enough?
• If not will this requirement undermine legal
  certainty and serve as a disincentive to
  use?
   Role of Certificates of origin
• Need for simplified mechanism to
  demonstrate the origin of resources
• Means for tracing genetic resource flows.
• Act as evidence of prior informed consent.
• Proposals now exist for alternatives such
  as certificates of source and legal
  provenance.
           Certificate schemes
• Origin             • provided by country of
                       origin – evidence PIC


• Legal provenance   • Provided by resource
                       collection or other
                       intermediary with legal
                       title to resources

• Source             • Evidence of provider but
                       does not evidence a legal
                       right for commercial use.
                 Trade offs
• What will countries be required to give up to get
  disclosure requirements
• If WTO is not likely to adopt adequate DR - bring
  the issue back to CBD. Decision 6/24C
• Danger of a disclosure system which would
  establish limits on what can be done,
• Better no agreement than a weak one.
• May require revision of advanced legislation
  such as Decision 486 of the Andean Community