Blogging Biodiversity

Happy New Year everyone! Here, at long last, is the summary from day 2 of the Patenting Lives conference.

Day 2 of the conference started with a keynote address by Tony Taubman from WIPO. He explored the title of the conference and decided to focus on the personality of patenting, or whose life is it anyway? He pointed out that there can be legitimate uses of the patent system for the protection of inventions based on traditional medicines. As an example, he showed a patent application from the PCT based on Chinese medicine. This raises the question of who can assess these applications, who is the ‘person skilled in the art’? Should the epistemology of patent law be broadened to include the art of traditional knowledge systems as proposed by the Asian Group at the IGC? Do you dismiss applications based on other ways of knowing? Try to assimilate them? Or defer to others with expertise in that field?

The first panel of the day was on traditional knowledge. Reetu Sogani spoke on people’s knowledge as a social asset. She highlighted some of the assets of people’s knowledge: it’s economically affordable, socially acceptable, and cohesive, acting as a social cement that encourages cooperation. The repositories of the knowledge, however, are women and the marginalized who are not given due recognition for their role. Some of the changes that have occurred around people’s knowledge is an increasing recognition of its importance but also increasing attempts to privatize it. Negative impacts of these attempts at privatization include a rise in individualism and external dependence, a lowering of self-confidence, and a growing gap between haves and have-nots. The solutions she proposed included increasing the awareness of the knowledge and its importance at the community level, analysis and evaluation of the knowledge by the people themselves, using the knowledge and having people (especially women and the marginalized) participate in decision-making processes.

Chika B. Onwueke’s presentation was on “Plant Genetic Resources and the Associated Traditional Knowledge: Does the Distinction Between Higher and Lower Life Forms Matter?” He highlighted paragraph 19 of the WTO Doha Declaration that refers to exploring the relationship between the CBD and the TRIPS Agreement, the scope of patentable subject matter in Article 27 of TRIPS and the debate over the patentability of higher and/or lower life forms. The final speaker on the panel was Daniel Robinson whose presentation was titled “Towards Community Rights as a Means of Protecting and Promoting Local Practices and Associated Traditional Knowledge of Biodiversity”. He focused particularly on the situation in Thailand which has experienced a number of cases of biopiracy. The responses of the Thai government have included the Geographical Indicators Act and a quest for broader protection for Jasmine rice, and the Act on the Protection and Promotion of Thai Traditional Medicinal Intelligence, which is, however, controversial. There has been little bioprospecting in the country in the last ten years. Instead, the biopiracy has occurred through resources and knowledge that are already in the public domain. Thailand has also been developing other means to encourage traditional knowledge, especially community rights, e.g. section 46 of the Constitution, a Community Forests Bill, and Community Forests Management Plans. International discussions on protection have been limited to biopiracy threats but a broader range of threats has not been well-recognised and hence promotion has been limited to date. Instead, community rights are advancing at the national level.

The second panel addressed medicine and public health. Marion Motari spoke first on “The Role of Intellectual Property in the South African Biopharmaceutical Innovation System”. The question behind her research was whether intellectual property is really an incentive for innovation in South Africa? She discovered a paradox of high knowledge production in the country but little use of the patent system. Luigi Palombi presented a proposal for the creation of a genetic sequence right as an alternative to the patent system. His main contention is that genetic sequences are products of nature and the patent system should not be stretched to include them within the scope of patentable subject matter. The genetic sequence right would be based on a registration system where an innovator who identifies the location and function of a gene will register it in a database. Then, anyone who wants to use the sequence must also register and pay a use fee to the innovator. In contrast to patents, the genetic sequence right is inclusionary, does not create a form of property, and does not give the holder any control over its use. Finally, Angela Stanton presented a case study of the Moore v. Regents of the University of California case . She found that the majority of the Supreme Court of California used the conclusion of the argument in their decision as a means of argument itself. Their line of reasoning was that Golde had a patent so there must have been an invention and so Moore did not own his body parts. She recommended introducing a logic test to prevent the impossible and contradictory reasoning from Moore.

The panel after lunch considered the ethical, legal and social issues of human gene patents. David Castle began by discussing open source and its implications for medical genetics. He argued that open access in computers is a poor analogy for open access in biotechnology not least because the two technologies are very different. The appeal of the analogy, however, lies in the David vs. Goliath rhetoric of open source. He asked whether there is something wrong with the conceptualization of open source in biotechnology including its form as a restoration project – did a commons in biology or biotechnology ever exist? He also asked a series of science and technology policy questions – is open source more complex than the problem it is trying to solve? Are manipulations of patent law the way to solve public policy questions? Richard Gold spoke next and presented a comparative analysis of the scope of gene patents in three jurisdictions – the U.S., Canada, and Europe (the EPO). The premise of the research rests on the belief of most people that the US provides the broadest scope for patents due to the ‘anything under the Sun made by man’ statement from Chakrabarty and the USTR’s position in advocating for broad patent rights in international trade agreements. Is this true? He presented three stages of determining the scope of gene patents in each jurisdiction: the breadth of patentable subject matter, patent office claim examination, and interpretation of issued claims by courts. His conclusion was that it is difficult to determine which country provides the greatest scope as neither patent offices nor the courts consistently follow or apply their own rules.

Tania Bubela spoke in place of Timothy Caulfield. She discussed some of the social concerns with stem cell patents. She found conflicting messages in the Canadian context where the Standing Committee on Health expressed concerns about the commercialization of components of humans but other parts of government, and Industry Canada in particular, are advocating commercialization. The final panelist was Staurt Smyth who discussed the Myriad Genetics and BRCA1 and 2 controversy. Through an economic analysis, he found that the high price being charged by Myriad for its patented tests using its patented genes meant that the company was not operating where marginal cost equaled marginal revenue. By charging the high price, Myriad effectively encouraged its customers to look for alternatives, cutting itself out of the market. It was a poor business decision and not a patent problem.

The conference concluded with a closing roundtable featuring Johanna Gibson, Michelle Childs, Graham Dutfield and William New. They commented on some of the key messages and points that they had drawn from the two days of discussions.

Posted on January 2nd, 2006 under Intellectual property •  Print This Post •  Email This Post • RSS 2.0 feed • Leave a response, or trackback