Katsandra Speaks Out - Nagoya Part VII

Following on from Blogmeister Jeremy's post here, this is now the seventh post on the topic of the Nagoya Protocol (the last one by this Kat, with links to its predecessors, is here).  Dear readers might have thought that there was nothing more to be said on the topic, but oh dear me no.  There is plenty.

This particular mewsing is occasioned by the IPKat and Merpel sharing a saucer of milk the other day with their dear friend Katsandra (geddit?). Katsandra has been following the IPKat's posts very closely, and a  particular line of thought was prompted by a comment on the original post [it is the the 12th comment, by Dr Abeba Gebreselassie], stating that "Two European based companies signed material transfer agreement with the government of Ethiopia. The terms of the agreement sounds good, but the companies never complied with the terms of the agreement."  The IPKat has no individual knowledge of the particular two cases referred to, but in general, looking toward the future, what is concerning Katsandra is the following.

Those who, like the IPKat and his friends, are very familiar with the world of innovation, technology and patents are aware that (a) the inventions embodied in most patents are never commercialised [as one friend of the IPKat likes to controversially put it "All patents are worthless*" (*at a 95% confidence level)]; and, on a related point,  (b) in pharmaceutical research only the tiniest fraction of compounds researched becomes a commercial product.

What concerns Katsandra is that from the perspective of a person or official in a country requiring Access and Benefit Sharing  (ABS) Agreements as a condition of access to genetic resources, the situation seems very different.  The fact of a European company negotiating and concluding an ABS agreement will create an expectation of value of the resource accessed.  If a patent application ensues, then this expectation will be even higher. Therefore, there is likely to be a huge disparity in expectation between the European company, and the country of origin with whom the ABS agreement is entered into.  If the company then explains that there is no benefit to share, then the country of origin is likely to treat this explanation with suspicion and hostility.  It seems to Katsandra, therefore, that the whole Nagoya mechanism is bound to created expectations that are doomed to be shattered.

Now, the IPKat does not expect that benefit sharing goes both ways - if research into a generic resource involves costs that cannot be recouped, then the accessing company is not going to be entitled to demand compensation from the country of origin.  So the downside risk will be carried by the company.  But a large proportion of ABS agreements with zero benefit to be shared seem to be inevitable.

Actually the first benefits to be listed in the Annex to the Nagoya Protocol are an access fee and upfront payment.  So countries of origin are envisaging the possibility of extracting a payment whatever.  And in terms of subsequent benefits, the second paragraph of the Annex lists a whole host of non-monetary benefits, which include, for example, "Sharing of research and development results".  Maybe these non-monetary benefits will be what countries of origin are really after.  But Katsandra is still worried that the Nagoya parading is likely to foment, not reduce, the discord between accessing companies and countries of origin.
Katsandra Speaks Out - Nagoya Part VII Katsandra Speaks Out - Nagoya Part VII Reviewed by Darren Smyth on Saturday, January 25, 2014 Rating: 5


  1. Just after I posted this, I found this news item from the European Parliament:


    This suggests that, since the environment committee has approved the current draft of the Regulation, it is very likely to pass into law in this form. It is scheduled for vote in European Parliament in March and Council would presumably adopt a decision not long after.

  2. I think the last paragraph is key to this discussion. Without denying that their is a huge expectation from biodiversity-rich countries and their renewed "green gold" (a fact which was already discussed by numerous academics), a concurring problem is that the discussion on benefits is often narrowed down to a mono-dimensional view on monetary benefits. However, numerous other forms of benefits are envisaged in the Protocol, as this article rightly states.

    While it is correct that in particular biotech sectors (but then again big differences exist: eg. the use of GR is very different in the cosmetics industry for example), few research endeavours actually lead to commercial products, much of the intermediary steps in the research chain, including the increased knowledge and understanding of certain characteristics of genetic resources and traditional knowledge form a benefit in themselves.

    What is important to understand with the Nagoya Protocol, is that while the (re)distributive aspect is often brought forward as the outcome of a fair ABS exchange, matters of recognition, participation, self-determination and autonomy are equally at play. For instance, allowing researchers to join the research team and/or establishing joint ownership of IPR would recognize the origin of the original resource, would allow developing country researchers to join international research and could allow them to start their own research, combining it with knowledge they might already possess or know of (eg. traditional knowledge). All of this without additional cost for the biotech company.

  3. As applied to bioprospecting, the Regulation would not be too bad. Bioprospecting is a minor activity (up to 1% of all GR research, at a generous estimate). But the Regulation applies to ALL (non-human) GR. This is overkill. For research on such GR, before you can safely embark on it, you must generally prove that your material (or its forbears) has not been illegally removed from a country that claims rights in it. This is rarely going to be simple, always tedious, and too often totally impracticable. The notion that such requirements will promote the conservation and use of genetic resources (major objectives of the CBD) is risible.


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