Bio-thingies under review

Life seems to be quite a popular subject in intellectual property circles these days. Accordingly the IPKat has dedicated this post to three recent publications on the bio theme.

The IPKat (above) gathers some independent biodiversity data ...

 Intellectual Property and Biodiversity. Rights to Animal Genetic Resources, by Michelangelo Temmerman, has a boring, dark blue cover that makes this review think that the publishers, Woltes Kluwer Law & Business, have forgotten how powerful a visual image can be when marketing a book online.  Fortunately, once you get between the covers, things improve. Among the less frivolous acknowledgments is found a kindly nod to Thomas Cottier, who supervised the author's work: this itself is encouraging. And the publisher's web blurb is quite appetising, too:

"Biotechnology is at the heart of heated debates about ethics, safety, economic development, and about the control over the biological materials and technologies used. The latter, grossly called biodiversity issues relating to the application of intellectual property, has been the subject of a wealth of literature ["Wealth" in terms of quality, certainly, but in terms of genuine value? This review is saddened that so much of the literature seems to him to be more polemic than persuasive -- he likes the conclusions to come after the reasoning, rather than to govern the form that the reasoning is allowed to take]. Yet, the situation of animal genetic resources specifically has only marginally been addressed so far. Many books and articles address ‘biotechnology and agriculture’, but have only plants and seeds in mind. Case-law and specific regulation is equally scarce. Exacerbated by the so-called ‘erosion of animal genetic resources’, climate change, the globalization of the market-place, and a strong concentration of markets, animal genetic resources however demand specific analysis and adjustments in intellectual property law. The decoupling of rights over animal genetic resources as an abstract concept, from those over the concrete animals is a fact today. The application of patents in this context became a full-fledged part of the management of animal genetic resources. This monograph analyzes against this background the impact of the patent system on ownership traditions in agriculture, on animal welfare, and on biodiversity [impact assessments are always welcome, since this is one of those topics where it's easier to grasp abstract arguments than to get a firm grip on solid data]. It looks at how those factors in turn are likely to affect the shape of patent law, and how they should affect it. The author hereby focuses on important specific issues arising, including the following:

the underlying elements deciding on the shape of regulation – innovation, economic development, agriculture, human rights, animal welfare, the conservation of resources, and equal trading conditions; 

the continuing applicability of trade marks, geographical indications, copyright, and trade secrets; 

patentability rules and exclusions; 

the extension of patent rights over progeny; 

the meaning of ‘essentially biotechnological processes’; 

the legal definitions of ‘morality’ and ‘ordre public’ in the context of animal welfare; 

and the future of international patent law in the context of global governance theories.

With detailed investigation of how three major jurisdictions – the European Union, the United States, and Canada [Merpel naughtily says two-and-a-half] – have regulated the matter, the book highlights unresolved issues in the laws dealing with animal genetic resources. How do the usual principles of patent law affect ownership over animals in agriculture? To what extent is patent law in accordance with neighbouring fields of regulation, with relation to animal welfare? How can intellectual property be used to alter, stimulate, or tackle developments in the realm of the conservation and promotion of biodiversity? Questions like these are asked, checked upon the more technical country studies; and then used to put to test the adequacy of international patent regulation in a final chapter. As a deeply informed overview of the arguments and discussion points, this is the only book of its kind [being the only book of its kind, it increase the "bibliodiversity" of the field]. It links general discussions to the often technical and complicated patent regulations, in the specific context of animal genetic resources. It is sure to bring lawyers in the field closer to the policy debates; and decision makers closer to the precise idiosyncrasies of patent law".

This is a well-organised book which demonstrates the truth that, the more thought goes into a work, the less long it needs to be in order to make its mark. Well done!

Bibliographic data: hardback, xiv + 300 pages. Price: $176. ISBN: 9789041138286. Rupture factor: low-ish.  Book's website here.

 Intellectual Property in the Life Sciences: A Global Guide to Rights and Their Applications is an entirely different proposition.  Put together under the no doubt stern and watchful eye of consulting editor Paul England (Simmons & Simmons LLP), it is rightly described as a Global Guide in so far as it is published by Globe Law and Business. Its coverage however suggests a somewhat contracted planet: just 15 jurisdictions (admittedly among the most significant players) are chosen from the 200+ countries in which the products of life science research may be adequately protected or freely exploited.

Readers who are familiar with other works in the same series will know that this is another exercise in "publication by numbers".  The national chapters (there are also some general and regional chapters) share the same paragraph numbering scheme so that, for example, if you are interested in compulsory licensing, you know that it will be found in the same place in each country review, at heading number 6.  This facilitates comparative research and is the lazy LLM students' dissertation dream; it can also save time when busy practitioners want at least a clue about what's happening in another country before they pick up the phone and call a colleague there.

So what does this work cover? As the publisher's web blurb indicates:

"Subjects explored within the national chapters include small molecules, secondary patents, DNA, biologicals and personalised medicines, patent infringement and enforcement, compulsory licensing, branding and designs, counterfeiting and collaborative models". 

So now you know.  This form of publishing is generally much more greatly loved by those law firms which pay to contribute their chapter, since the book is handsomely produced, both looks and feels serious. It's also far less likely to be thrown away by its recipients than the business cards, mouse-pads, desk calendars and other detritus of client courtship. But for all the mockery and cynicism it must be conceded that there are some highly-respected firms and contributors on this list (including several of the IPKat's friends and many readers of this weblog) and, if you want what this book provides, you will not be disappointed.

Bibliographic data: hardback, 404 pages.ISBN: 9781905783571. Price: £130. Rupture factor: not inconsiderable for a smallish book. Book's web page here.

Genetic Resources And Traditional Knowledge Case Studies and Conflicting Interests is edited by Tania Bubela (Associate Professor, School of Public Health, University of Alberta) and E. Richard Gold (James McGill Professor, Faculty of Law, McGill University). It's part of Edward Elgar Publishing's Intellectual Property and Global Development series, for which the series editor is the academically fertile and creatively prolific Peter K. Yu.

So what is this book all about?  The publisher describes it thus:

"This fascinating study describes efforts to define and protect traditional knowledge and the associated issues of access to genetic resources, from the negotiation of the Convention on Biological Diversity to The Declaration on the Rights of Indigenous Peoples and the Nagoya Protocol. Drawing on the expertise of local specialists from around the globe, the chapters judiciously mix theory and empirical evidence to provide a deep and convincing understanding of traditional knowledge, innovation, access to genetic resources, and benefit sharing.

Because traditional knowledge was understood in early negotiations to be subject to a property rights framework, these often became bogged down due to differing views on the rights involved [it wasn't just negotiations that became bogged down -- this reviewer recalls some fairly boggy ATRIP conferences in his younger days when speakers on TK topics were sometimes quite abruptly challenged as to what they were doing there]. New models, developed around the notion of distributive justice and self-determination, are now gaining favor. This book suggests – through a discussion of theory and contemporary case studies from Brazil, India, Kenya and Canada [the last of which provides almost enough material and food for thought to justify a book of its own] – that a focus on distributive justice best advances the interests of indigenous peoples while also fostering scientific innovation in both developed and developing countries. Comprehensive as well as nuanced ["nuanced" is an important word these days. When authors and publishers use it, it means "subtly addressing both sides of the debate". When reviewers use it, it often seems to mean "it seems a bit inconsistent but I don't have time/space/brains to explain quite why"], Genetic Resources and Traditional Knowledge will be of great interest to scholars and students of law, political science, anthropology and geography. National and international policymakers and those interested in the environment, indigenous peoples’ rights and innovation will find the book an enlightening resource".

If this book does anything, it will encourage the reader to accept that there is no single panacea or avenue through which to reach an acceptable resolution of the tensions of traditional communities and institutional/colonial pressures and influences that do not disappear at the point at which those communities are brought into the decision-making process.

Bibliographic data: hardback, xiv + 371 pages. ISBN  978 1 84844 223 8. Price £97 (but if you buy it directly from the publisher it's just £87.30.  Also available as an ebook (ISBN) 978 1 78100 262 9. Rupture factor: not great. Book's web page here.