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.