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 8889.
3 Id. at 90.
4 Id. at 96104.
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

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