UK signs key international protocol designed to address biopiracy

In June 2011, the United Kingdom signed the Nagoya Protocol.  The ‘Nagoya Protocol on access to genetic resources and the fair and equitable sharing of benefits arising from their utilisation’ is a framework agreement for implementing one of the objectives of The Convention on Biological Diversity (CBD).

One of the key aims of the CBD is access to biological resources and the fair and equitable sharing of benefits derived there from.  One problem the CBD was intending to address is ‘Biopiracy’ where a party takes a genetic resource from a country without permission and exploits it for personal gain, with no sharing of the gains with the country of origin.   Although this objective is irreproachable it has proved difficult to get international agreement as to how this should be done.  The Nagoya Protocol is a significant step in the establishment of a regime for access and benefit sharing (ABS).

The Nagoya Protocol, relates to both genetic resources and traditional knowledge associated with genetic resources, and places a number of obligations on contracting states, these include:

• Access to resources shall be subject to prior informed consent;
• Issuance of a permit, or equivalent, as evidence of a decision to grant prior informed consent;
• Each party to take effective measures to ensure compliance and to address issues of non-compliance;
• Utilisation and commercialisation shall be shared in an equitable way with the party providing the resources on mutually agreed terms; and
• Establishment of a competent national authority on access and benefit sharing.

Philip French, Head of Biotechnology at Appleyard Lees said ‘The aims of this protocol are sound but much remains to be seen as to how the provisions of the protocol are implemented in UK law and the law of other contracting states.  One concern is that the patents system could be used to police this and applicants compelled, when filing a patent application directed to a biological material, to disclose the origin of the material.  The sanctions for not disclosing the origin could include invalidity of any granted patents.  This policing role is not a role that the patent system is designed to fulfil and an obligation to disclose origin in patent applications could put a considerable burden on industry’.

The Nagoya Protocol is open for signature until 1 February 2012.  At the time of writing (September 2011) 57 countries have signed the Protocol.  Signature has no legal effect, as such, but it is a commitment to bring the provisions into national law and to ratify the Protocol.  The Protocol will come into force 90 days after the 15th state has ratified the Protocol.  No party has ratified the protocol, to date, but it is anticipated that the protocol will enter into force before the eleventh meeting of the Conference of the Parties to the Convention on Biological Diversity, Hyderabad in October 2012.

More information about the Nagoya Protocol can be found at the CBD website or contact Philip French.