Presentation on theme: "Jau-Hwa CHEN Warren H.J. KUO Professor, Department of Financial and Economic Laws, Fu-Jen Catholic University Professor, Department of Agronomy, National."— Presentation transcript:
Jau-Hwa CHEN Warren H.J. KUO Professor, Department of Financial and Economic Laws, Fu-Jen Catholic University Professor, Department of Agronomy, National Taiwan University
100 80 60 40 20 X 10 3 Plant garden 500 300 100 _ _ _ South American North American Central American Caribbean Tropical Africa Southern Africa Europe USSR South Asia China Japan South East Asia Austra-New Zeland World distribution of plant species and botanic gardens From: WWF & IUCN
Political Economy of Genetic Resources CDB vs WTO Bonn Guidelines TRIPs Genetic Resources Right Intellectual Property Right
Prior Informed Consent Bioprospecting Genetic Resources Traditional Knowledge The South The North Patent Access Invention Benefit Sharing Conservation Utilisation Technology Transfer Political Economy of Genetic Resources
The way of the reconciliation between two rights is by no means unclear. It has been a common ethic doctrine that you should get a Prior informed consent before doing something to somebody else, such as to build a biobank or to collect plants in other countries. Also it has been widely accepted that, if your profits are derived from others stuffs, then benefit sharing is justifiable. The question is: how to implement PIC and ABS. Before an international consensus is reached, the only way south countries can do is national registration.
Status of National legislation Australia, India, South Africa, Ethiopia, Gambia, Bulgaria, Costa Rica, Peru, Venezuela 9 In force Biodiversity Laws Access and benefit sharing Philippines, Portugal, Bolivia, Brazil, Panama 5 Drafting Asia 19 Countries Pacific Islands 14 Countries Africa 11 Countries America 9 Countries 53
TAIWAN, islands of diversified biota Taiwan% of the world terrestrial acreage (ha) 3,602,042.03 % (1) native plant species 5,6761.9 % (63) native animal species 29,1952.5 % (82) native microbe species 10,6658.3 % (277)
Nothapodytes nimmoniana Graham camptothecin irinotecan hydrochloride CPT-11, Camptosar Bio-prospecting in Taiwan By Camptosar, the Japanese company YAKULT earns 150 million Euro per year without benefit sharing with Taiwan.
Bio-prospecting in Taiwan Yangmingshan National Park 14 Plant Patents
The Drafters Warren H.J. KUO, Agronomy Ming-Yan SHIEH, Law Jau-Hwa CHEN, Law Chung-His LEE, Law Kuei-Jung NI, Law Four biologists: Botany Microbiology Marine Biology Entomology Drafting The Genetic Resource Act TAIWAN
Genetic resource: genetic material of actual or potential value. Genetic material: biological material that containing functional units of heredity Definition CBD The definition is useless, because any genetic material is of potential value sometime somewhere.
OECD Biological material Genetic material Biological resources Genetic resource Definition The OECDs interpretation of the definition of CBD is somewhat obscure to us, for linguistic reason.
We agree that, genetic material is embedded in biological material, which may be alive or dead. However, all the biological materials within a confined territory we call it biological resources. Likewise, all the genetic materials within a confined territory we call it genetic resources. It is obvious that to control genetic materials is to control biological materials in most cases. Definition
Biological Resources : alive Biological Resources : dead Genetic Resources Biological material Genetic material Dead Alive Capable of reproduction Definition
Living bulk commodities for commercial consumption, planting/decoration, other traditional use within the country Living materials for breeding, composition screening et al. Non-viable specimen for taxonomic studies Control over bioprospecting Biological materials should be controlled at the customs Definition x x
First class bio-prospecting Second class bio-prospecting For the purpose of academic research Living materials for breeding, composition screening et al. Collected from natural habitat Subjected to germbank policy / International Treaty on Plant Genetic Resources for Food and Agriculture Acquired from germplasm bank
Application and approval of bio-prospecting The first class bio-prospecting The second class bio-prospecting
Application of an acquisition Preliminary examination by competent authority Asked to revise the proposal by competent authority Preliminary examination finished Acquisition rejected Inform/Consult with landholder, shcolars, et al. Acquisition approved Permission certificate issued All required documents submitted First class bio-prospecting
Application of an acquisition Preliminary examination by competent authority Asked to revise the proposal by competent authority Preliminary examination finished Application rejected Permission certificate issued All required documents submitted Second class bio-prospecting Application accepted The landholder informed. Representatives of the holder, applicant and competent authority to reach an agreement concerning bioprospecting activities, material transfer, and benefit sharing The competent authority to examine the agreements Agreement do not reach, Acquisition rejected Acqisition approved Consult with scholars
Post supervision and control The progress of the bio-prospecting; Biological materials collected and the conditions of their transportation; Any information that is associated with the collected materials. 1. Prospecting report
Post supervision and control 2. Commercial implication derived from genetic material the applicants must notify the competent authority and the landholder the applicants should proceed with the whole procedure of application and approval of the second class The first class bio-prospecting The second class bio-prospecting
Post supervision and control 3. Export of genetic materials acquired by certified activities deposit a copy of each live sample to due germplasm bank Material Transfer Agreement Dead specimens are free to export, without application to the competent authority Material Transfer Agreement
Post supervision and control 4. Disclosure of origin in patent applications US African Group Switzerland Brazil et al. EU Taiwan Disclosure requirement by Genetic Resources Act, not by Patent act
Post supervision and control 4. Disclosure of origin in patent applications The permits for exploring genetic resources in Taiwan Describing the origins of genetic resources they used for the invention Patent seekers should submit to Patent Office: