Necessity: Enacting Laws to Protect Indigenous Intellectual Property Rights in the United States

• Author: Yuqin Jin
• Position: J.D., The University of Iowa College of Law, May 2010.
• Pages: 950-976

Necessity: Enacting Laws to Protect Indigenous

Intellectual Property Rights in the United States

Yuqin Jin*

I. INTRODUCTION ............................................................................ 951

II. THEORETICAL AND PRACTICAL CASES FOR THE ENACTMENT OF

LAWS TO PROTECT INDIGENOUS INTELLECTUAL PROPERTY ...... 953

A. The Theories Underlying Current Patent Law .............. 953

B. The Modern Patent Law Theories as a Basis for

Indigenous IP Law .......................................................... 954

III. THE UNITED STATES’ APPROACHES TO PROTECTING INDIGENOUS

INTELLECTUAL PROPERTY RIGHTS OF INDIGENOUS PEOPLES .... 956

A. Current U.S. Patent Law Cannot Protect Indigenous

Intellectual Property ........................................................ 956

B. Bioprospecting Approaches Protecting Indigenous

Intellectual Property in the United States...................... 957

C. Judicial Approach to Protecting Indigenous Property in

the United States ............................................................. 959

IV. THE LAWS PROTECTING INDIGENOUS INTELLECTUAL PROPERTY

RIGHTS IN OTH ER COUNTRIES .................................................... 962

V. THE ARTICLES OF THE U.N. DECLARATION ON THE RIGH TS OF

INDIGENOUS PEOPLES ................................................................ 965

VI. ENACTMENT OF AMERICAN INDIGENOUS INTELLECTUAL

PROPERTY LAW AND ADOPTION OF THE U.N. DECLARATION ..... 968

A. The U.N. Declaration Jumps the Hurdles of Modern

Patent Law ....................................................................... 968

1. Land ....................................................................... 968

2. FPIC ....................................................................... 969

* J.D., The University of Iowa College of Law, May 2010.

Winter 2011] PROTECTING INDIGENOUS IP RIGHTS IN THE U.S. 951

3. Redress ................................................................... 971

B. Indigenous Intellectual Property Law May Be Beneficial to

America’s Economic Development .................................. 972

C. Workable Indigenous Intellectual Property Law ........... 974

VII. CONCLUSION ............................................................................... 976

I. INTRODUCTION

The commercialization of biotechno logy is a catalyst for free biological

resources and associated knowledge to become commodities. In the meantime,

this commercialization renders it necessary to protect the biological resources

and associated knowledge as intelle ctual property (“IP”). Before the late 1970s,

biology was confined to the academic cloister and was the concern of

white-coated scientists. However, a series of important breakthroughs in

biology between the 1950s and the 1970s changed this scenario. In the 1950s,

Arthur Kornberg discovered DNA polymerases that made it possible to

replicate DNA in a test tube. 1 In the 1960s, Martin Gellert and Bob Lehm an

independently identified ligases that can connect fragments of DNA together,

while Werner Arber discovered restriction enzymes that can cut DNA into

fragments.2 In 1971, Stanley Cohen devised a method for E. Coli to uptake a

plasmid (gene) from outside of its cells.3

Nevertheless, biologists and the public at large were afraid that this new

biological technology might bring new dise ases or new species of pathogenic

bacteria or viruses, creating more peril than promise.

By the early 1970s, biologists had

discovered all of the techniques required to make new genes, which had never

before existed in the natural world, and to deliver the genes (recombinant

DNA) to foreign organisms.

4 To ease fears of this

new biotechnology, biologists called for postponing the research in

recombinant DNA until they fully understood its potential hazards and found

methods to control those hazards.5 The debate over the potential hazards of

the technology and how to regulate biological research thereafter lasted for

about five years. As a consequen ce, there was a subsequent delay in DNA

technology for the same length of time.6

1 JAMES D. WATSON, DNA: THE SECRET OF LIFE 88 (Alfred A. Knopf ed., 2003).

2 Id. at 88–89.

3 Id. at 90.

4 Id. at 96–104.

5 Id.

6 WATSON, supra note 1. Scientists were concerned that biotechnology may produce unknown

diseases. The majority of scientists attending a conference on nucleic acid in New Hampshire in

the summer of 1973 voted to “petition the National Academy of Sciences to investigate without