A patent defence approach to sharing aquaculture genetic resources across jurisdictional areas

• Date: 01 November 2017
• Published date: 01 November 2017
• DOI: http://doi.org/10.1111/jwip.12082

DOI: 10.1111/jwip.12082

ORIGINAL ARTICLE

A patent defence approach to sharing

aquaculture genetic resources across

jurisdictional areas

Fran Humphries PhD, LLM, BA LLB

Griffith Law School, Griffith University,

Queensland, Australia

Correspondence

Fran Humphries, Griffith Law School,

Griffith University,170 Kessels Road,Nathan,

Queensland, 4111, Australia.

Email: frances.humphries@griffith.edu.au

Access and benefit sharing (ABS) of genetic resources is a

concept that is increasingly important for product develop-

ment in aquaculture. ABS regulates the way aquatic genetic

resources can be accessed from the world’swaters and how

the benefitsthat result from their use areshared between the

providers and users of genetic resources and their deriva-

tives. This article gives an overview of the multiple

approaches to sharing aquaculture genetic resources under

ABS regimes across the three jurisdictional areas in which

they are found—waters within national jurisdiction, beyond

national jurisdictions and in the Antarctic Treaty Area. It

highlights the complexity and inconsistencies relating to

obligations for technology transfer across the various

regimes and the implications this has for sharing genetic

resources for use in aquaculture.It offers a practical solution

to navigating this complexity by using an evolving patent

defence approach consistent with the World Trade Organ-

isation’sAgreement on Trade-Related Aspects of Intellectual

Property Rights (TRIPS). It concludes that this approach can

guide the resolution of legal challenges that ABS regimes

across the jurisdictional areas have in common, which

concernderivatives and commercial use of geneticresources.

KEYWORDS

access and benefit sharing, aquaculture, genetic resources, patent

law, TRIPS

© 2017 The Authors. The Journal of World Intellectual Property © 2017 John Wiley & Sons Ltd

J World Intellect Prop. 2017;20:221–238. wileyonlinelibrary.com/journal/jwip

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INTRODUCTION

In recent years there has been a tidal wave of legal analysis on laws regulating access to genetic resources and sharing

the benefits from their use (ABS laws)

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as humans begin to unlock their potential for conservation, global food and

health security. There has been a similar increasing interest in the restrictive effects of patents on accessing genetic

resources used for agriculture and pharmaceutical sectors (see Gibson, 2005). Yet, it has only been recently that

genetic resources for use in aquaculture have entered into the regulation debate (see Rosendal, Olesen, & Tvedt,

2013). As a consequence, targeted analysis is still lacking on identifying a clear and consistent approach to technology

and knowledge transfer of aquaculture genetic resources under patent laws and ABS laws across the three

jurisdictional areas in which they are sourced—within national jurisdiction, areas beyond national jurisdiction (ABNJ)

and in the Antarctic Treaty Area. This article refers to areas within national jurisdiction to include internal waters,

territorial waters, archipelagic waters, the contiguous zone, the Exclusive Economic Zone and the continental shelf

(United Nations Convention on the Law of the Sea “UNCLOS”parts II–VI). The ABNJ comprises the high seas water

column and the seabed and ocean floor and subsoil below the water column called “the Area”(UNCLOS parts VII and

XI). The Antarctic Treaty Area comprises the area south of 60° south latitude (Antarctic Treaty art VI).

Navigating the complexit ies of governance arrangeme nts for cross-jurisdicti onal genetic resources use d for

product development in aqu aculture is urgent for several reasons. Cap ped and declining wild capture fisheries and

the rapid rate at which aquacu lture must increase to meet global protei n requirements (see Mullon, Fréon, & Curr y,

2005, p. 119) means that farmers and resear chers require increasing ac cess to aquatic genetic reso urces as the

building blocks for developi ng new strains of aquatic ani mals and plants. Developin g countries rely heavily on

growing a sustainable aquacu lture sector for their food su pply, livelihoods and tra de (FAO, 2014, p. 6–7).

Currently, technologica l change in developing cou ntries is mainly a process of dissemination rather t han of

invention of technology (World Bank, 2008, p. 92). Given that developing countries supply approximately80% of

global aquaculture production (Bartley et al., 2009, p. 6), avoidingstagnation and global food security is dependent

not only on transferring to thes e countries the physical samples needed for breeding bu t also the know-how for

generating new strains and technologies based on the re sources. There is also growing interes t by the aquaculture

research sector in biotech nology techniques (such as transgenic s pecies and DNA vaccines) for finding sol utions to

the looming global food and he alth security crisis as the world’s hungry po pulation expands exponentially (Fletc her

& Rise, 2011, p. xii).

At a time, however, when the aquaculture sector has its greatest need for access to the physical as well as the

digital genetic resources during its early stages of domestication, research and technical development (Greer & Harvey

2004, p. 4), these resources are becoming subject to increasing patent protection and a complex array of ABS regimes

across the three jurisdictional areas. Physical resources comprise the animals, plants, microorganisms and the

materials they contain such as DNA, RNA and proteins. Digital resources are the sequencing data, information and

knowledge about technologies based on the physical resource as well as other “technical, scientific and socio-

economic research results including [the resources’] characterisation, evaluation and utilisation”(Plant Treaty, art 13

(2)(a)). This article looks at the similarities between the regimes to isolate common legal problems that they face in

implementing technology transfer obligations when it comes to aquaculture genetic resources. Some of the current

scholarship focuses on how ABS law can influence the development of patent law (See De Carvalho, 2000). The

benefit of doing the converse in this article is that while ABS regimes are relatively new, patent law already has a body

of normative rules targeted towards the common legal challenges for regulating the sharing of knowledge and genetic

resource products that span multiple jurisdictions within the globalised market. The two legal challenges analysed in

this paper relate to questions of derivatives and commercial use of genetic resources but more challenges are arising

as technologies advance.

A central problem for aquaculture is that the lack of integration of approaches to sharing aquatic genetic

resources under patent law and ABS regimes across jurisdictional areas causes a complex system of laws that may

apply to the same resource. Such confusion about the circumstances in which the use and exchange of a genetic

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HUMPHRIES