Prior Consents: Preventing Offensive Genetic Engineering Patents Against Indigenous People's Rights

Abstract

Genetic engineering is one of the most advanced technologies in the world and can bring vast profits to developers by patenting resultant achievements. But genetic engineering must be based on original genetic materials. For obtaining such materials, developers travel around the world, especially to genetically rich areas in developing countries, to prospect for valuable genetic resources and bring back for research and patent derivate products. However a lot of disputes have arisen from such patents, such as the Enola patent dispute on Mexican traditional crop mayocoba bean and the patent dispute on sacred plant Ayahuasca between people and one U.S. Company. Indigenous people, who live in the origin areas of genetic resources for a long history, have established traditional and cultural genuine relation with some living species. These disputes revealed that some genetic engineering exploitation and patents based on certain species may be severely offensive against indigenous people’s spiritual, religious, or cultural traditions. Although genetic engineering achievements’ patentability has been argued for a long time, the TRIPs Agreement requirement and the world’s legislation trend, either in developed countries such as the U.S., European Union or in developing countries such as China, have indicated that genetic engineering products and processes are legitimately patentable. But some loophole exists in the patent acquisition procedure of current legislation, which allows such offensive patents to be granted. To prevent such offensive patents, one prior consents solution is proposed in this article, which requires genetic engineering developers to obtain prior consents from origin countries of genetic resources before they exploit these resources and patent derivate achievements. This solution is based on the Convention on Biological Diversity, which affirmed country’s sovereignty over their genetic resources and allowed countries to regulate and manage genetic resources in their territory. The Convention on Biological Diversity does not conflict with IPR legislation, in particular the TRIPs Agreement and the obligations under both treaties should be respected. The implementation of this proposed solution is based on the establishment of national genetic resources authority, which generally manages its country’s genetic resources and works as indigenous people’s representative with the authorization of state government. This solution should be implemented in three levels: domestically, transnationally and globally. Therefore, offensive genetic engineering patents could be prevented both by such authority’s examination and granting prior consents before developers’ access to genetic resources and by national patent administration’s examination on prior consents proof from origin country’s authority before granting patents.

Keywords: Prior Consents, Genetic Engineering Patents, Indigenous People's Rights