An Industry Perspective on Access & Benefit Sharing Tom Jacob, Senior Advisor - Global Affairs, DuPont Chair, ICC Task Force on ABS WTO 26 May 2004

The CBD Context F CBD is dealing with legitimate issues –But range of potential issues is vast F Those issues go well beyond environmental concerns –But, as MEA, many countries delegate to environment ministries F Role of indigenous/local communities is huge –But very ill-defined F Broad support among nations –But non-environment matters deliberated by environment-focused delegates creates potential for venue shopping

ABS From Our Perspective… F There is reason to hope for sustainable development benefits –Direct linkage of resources to in-country stakeholders, with expectation of benefits –Recognition of the linkages of development to ecological and social/cultural impacts F Nowhere are the agendas more complex –New obligations for countries --> new obligations for industry –Were all trying to figure this out F We need time and country-level experience to find the right balance –Few countries with experience with ABS or PIC regulations

A New CBD ABS Negotiation F Should be encouraging new regimes and experience, using Bonn Guidelines, but… F We now have new, broad negotiating mandate –Everything is on the table –Lock-in decisions with limited experience? F Danger to parallel processes –FAO International Treaty –WIPO Committee –WTO TRIPS Council

Conceptual Model of CBD ABS In-situ Resource Bioprospecting Consultation w. Sovereign State Consultation w. Indigenous/Local Communities Mutually Agreed Terms/PIC Ex-situ R&D Development of Commercial Product Patenting of Commercial Product Sharing or Proceeds per MAT Pursuant to National Regime

Complication: No National Regime In-situ Resource Bioprospecting Consultation w. Sovereign State Consultation w. Indigenous/Local Communities Mutually Agreed Terms/PIC Ex-situ R&D Development of Commercial Product Patenting of Commercial Product Sharing or Proceeds per MAT Pursuant to National Regime ? ?

Complication: Pre-CBD Extraction In-situ Resource Bioprospecting Consultation w. Sovereign State Consultation w. Indigenous/Local Communities Mutually Agreed Terms/PIC Ex-situ R&D Development of Commercial Product Patenting of Commercial Product Sharing or Proceeds per MAT Pursuant to National Regime ? ?

Complication: Pre-CBD w. Country of Origin In-situ Resource Bioprospecting Consultation w. Sovereign State Consultation w. Indigenous/Local Communities Mutually Agreed Terms/PIC Ex-situ R&D Development of Commercial Product Patenting of Commercial Product Sharing or Proceeds per MAT Pursuant to National Regime ?

Complications: Non-Patent GR Use – Patent-Linked System In-situ Resource Bioprospecting Consultation w. Sovereign State Consultation w. Indigenous/Local Communities Mutually Agreed Terms/PIC Ex-situ R&D Development of Commercial Product Patenting of Commercial Product Sharing or Proceeds per MAT Pursuant to National Regime ? ?

Complications: Burden of Transaction Costs In-situ Resource Bioprospecting Consultation w. Sovereign State Consultation w. Indigenous/Local Communities Mutually Agreed Terms/PIC Ex-situ R&D Development of Commercial Product Patenting of Commercial Product Sharing or Proceeds per MAT Pursuant to National Regime Expected Value of GR

Complications: Lower Expected Value In-situ Resource Bioprospecting Consultation w. Sovereign State Consultation w. Indigenous/Local Communities Mutually Agreed Terms/PIC Ex-situ R&D Development of Commercial Product Patenting of Commercial Product Sharing or Proceeds per MAT Pursuant to National Regime Expected Value of GR

Differing Perceptions of Value? F Reference case for many is blockbuster drug discovery from natural GR –Dependence of pharma on natural GR F Increased reliance upon new technologies for drug design –Less dependence upon natural GRs –Many major pharma firms reducing or eliminating natural product research F Remaining industries less likely to have blockbuster yields –Plant breeding, agrochemicals, flavours & fragrances, industrial enzymes, herbals, etc.

Challenges Shaping ABS Evolution F Country ABS regimes –Bonn Guidelines + learn from our experience F FAO Standardized MTA –A useful model? F Disclosure of PIC/Origin proposals –Limited coverage and legal complications F Certificate of Origin/Source/Legal Provinance proposals –Workable or will it collapse of own weight?

F Traditional Knowledge and Indigenous & Local Communities obligations –TK very complex IPR challenge –Countries must sort this out consultative relations F Codes of Conduct among Commercial, Public and Non-Profit Institutions –Important, but too few as yet Challenges Shaping ABS Evolution

Bye, Now...

Negotiating Boundary Conditions F Trading system –Evolved over hundreds of years F Environmental system –Evolved in past several decades –Not yet institutionalized –Quite undisciplined

Convention on Biological Diversity (CBD) F An environmental treaty… –Biological diversity, ecosystem integrity F But also an economic/social treaty –rights to genetic resources and traditional knowledge –rights of indigenous and local communities –equity concerns, and sharing of benefits F There is reason to hope for sustainable development benefits –Direct linkage of resources to in-country stakeholders, with expectation of benefits –Recognition of the linkages of development to ecological and social/cultural impacts

Bonn Guidelines -- A Major Step F A broad inventory of potential measures and ideas –Workable if used selectively F Needed: Countries to gain experience implementing regimes –Few countries with experience with ABS or PIC regulations –Need experience to learn implications of potential elements of ABS regimes F Should be encouraging new regimes and experience, using Bonn Guidelines

Complication: Exemption for Academic Research In-situ Resource Bioprospecting Consultation w. Sovereign State Consultation w. Indigenous/Local Communities Mutually Agreed Terms/PIC Ex-situ R&D Development of Commercial Product Patenting of Commercial Product Sharing or Proceeds per MAT Pursuant to National Regime

In-situ Resource Bioprospecting Consultation w. Sovereign State Consultation w. Indigenous/Local Communities Mutually Agreed Terms/PIC Ex-situ R&D Development of Commercial Product Patenting of Commercial Product Sharing or Proceeds per MAT Pursuant to National Regime Complication: Exemption for Academic Research Products