Requiring Disclosure of the Origin of Genetic Resources and Prior Informed Consent in Patent Applications without Infringing the TRIPS Agreement: The Problem and the Solution
![handle is hein.journals/wajlp2 and id is 379 raw text is: Requiring Disclosure of the Origin of Genetic
Resources and Prior Informed Consent in Patent
Applications Without Infringing The TRIPS
Agreement: The Problem and The Solution
Nuno Pires de Carvalho*
I. INTRODUCTION
The purpose of this Article is to discuss how the requirement that
the origin of genetic resources and prior informed consent be
disclosed in patent applications (hereinafter Requirement) can be
adopted by World Trade Organization (WTO) Members at the
national, regional, or international levels without infringing the
TRIPS Agreement.1 This discussion arises in three different contexts.
The first context is the implementation of the Convention on
Biological Diversity by biodiversity-rich countries.2 In doing so,
these countries are seeking ways that enable article 15 of the
Convention, and in particular its paragraphs 5 and 7,3 to acquire a
* J.D., LL.M., S.J.D., Federal University of Minas Gerais, Brazil; LL.M., J.S.D.,
Washington University in St. Louis, MO, USA. The author served in the Division of
Intellectual Property of the World Trade Organization (WTO) between 1996 and 1999 and
currently serves in the Global Intellectual Property Issues Division of the World Intellectual
Property Organization (WIPO) in Geneva, Switzerland. All views expressed are the author's
and not necessarily those of the organizations with which he was or is affiliated.
I. Agreement on Trade-related Aspects of Intellectual Property Rights (TRIPS
Agreement), Annex IC of the Marrakesh Agreement Establishing the World Trade
Organization, which concluded on Apr. 15, 1994, effective on Jan. 1, 1995.
2. Convention on Biological Diversity [hereinafter CBD], opened for signature on June
5, 1992, at the United Nations Conference on Environment and Development (the Rio Earth
Summit). It became effective on Dec. 29, 1993.
3. CBD, supra note 2, art 15.5, 15.7 (Access to genetic resources shall be subject to
prior informed consent of the Contracting Party providing such resources, unless otherwise
determined by that Party.). CBD, article 15.7 states:
Each Contracting Party shall take legislative, administrative or policy measures, as
appropriate, and in accordance with Articles 16 and 19 ... with the aim of sharing in a
fair and equitable way the results of research and development and the benefits arising
from the commercial and other utilization of genetic resources with the Contracting](ViewImageLocal?handle=hein.journals/wajlp2&div=14&collection=&method=preview&ext=.png&size=3)
Requiring Disclosure of the Origin of Genetic Resources and Prior Informed Consent in Patent Applications without Infringing the TRIPS Agreement: The Problem and the Solution