The Protection of Biodiversity and Traditional Knowledge in International Law of Intellectual Property

by Jonathan Curci

Overview

The relationships between international intellectual property treaties, the United Nations international environmental treaties (first and foremost the Convention on Biological Diversity), the relevant customary norms and soft law form a complex network of obligations that sometimes conflict with each other. The first set of treaties creates private rights while the latter affirms the sovereignty rights of States over genetic resources and related knowledge and creates international regimes of exploitation of the same. Jonathan Curci proposes solutions to the conflicts between treaties through the concept of 'mutual supportiveness', including the construction of a national-access and benefit-sharing regime, mandatory contractual provisions in relevant international contracts, a defensive protection when genetic resource-related traditional knowledge is unjustly patented through the analysis of the concepts of 'ordre public and morality', 'certificate of origin' in the patent application and 'novelty-destroying prior art' and positive protection through existing and sui generis intellectual property rights and misappropriation regimes.

Product Details

ISBN-13:	9780521199445
Publisher:	Cambridge University Press
Publication date:	12/10/2009
Series:	Cambridge Intellectual Property and Information Law , #12
Pages:	360
Product dimensions:	6.10(w) x 9.00(h) x 0.90(d)

About the Author

Jonathan Curci is an invited professor in international law and relations at Lecce University Law School, Italy, and Academic Development Counsel of Touro International University, Rome. He is also assistant professor of international law at the Law School of Al Quds University in Abu Dies-Jerusalem, Israel-Palestine.

Table of Contents

List of abbreviations vii

Acknowledgments xi

Part I The main problems 1

1 Introduction to legal issues related to genetic resources and traditional knowledge in the international intellectual property system 3

1.1 Defining the problems 4

1.2 Some methodological aspects 17

Part II The protection of genetic resources in intellectual property law 27

2 The TRIPS Agreement and the patent protection of genetic resources 29

2.1 The general principles of the TRIPS Agreement 29

2.2 The patentability of biotechnology 36

2.3 Economic considerations on biotech-patents and their interaction with traditional knowledge 42

2.4 Conclusion 48

3 The relationship between the TRIPS Agreement and treaties protecting genetic resources and traditional knowledge 50

3.1 The impact of the TRIPS Agreement on CBD obligations 51

3.2 The impact of UPOV on the freedom of exchange of seeds 62

3.3 Some international intellectual property aspects of the FAO ITPGRFA 62

3.4 Conclusion of Part II 85

Part III The protection of traditional knowledge in the international patent system 87

4 Towards clearer legal definitions 91

4.1 An intellectual property approach to the concept of traditional knowledge 91

4.2 A few relevant analytical distinctions on biodiversity and related traditional knowledge 95

5 The construction of an access- and benefit-sharing regime and intellectual property issues: criteria and options 103

5.1 The CBD mandated access- and benefit-sharing regime 104

5.2 An access- and benefit-sharing regime and the contractual solution 105

6 The defensive protection of traditional knowledge in international patent law 131

6.1 The certificate on the disclosure of origin/source 132

6.2 Traditional knowledge as prior art 208

6.3 Ordre public and morality as exception to patentability 233

7 Positive protection of traditional knowledge 275

7.1 Positive protection of plant genetic resources and related traditional knowledge in provider countries 275

7.2 Protecting traditional knowledge through the implementation of Article 27.3(b) of TRIPS 277

7.3 The creation of new intellectual property rights for plant genetic resources related to traditional knowledge 285

7.4 The protection of traditional knowledge through unfair competition 304

7.5 Trade secrets 311

7.6 Applying patent law to traditional knowledge innovation 313

7.7 Overview on the utility of geographical indications and trademarks 315

8 Final observations 326

Index 334

Editorial Reviews

'Jonathan Curci's monograph examines the international legal regime which seeks to regulate the commercial exploitation of genetic resources from an international law perspective. … These options are worthy of a more extended analysis.' European Intellectual Property Review

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