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The Nagoya Protocol’s Relevance to Emerging and Developed Nations


The Nagoya Protocol’s Relevance to Emerging and Developed Nations
by John F. Mares, VP
BioProperty Strategy Group, Inc.
17 April 2015

The Nagoya Protocol is an international treaty, now ratified by 52 countries, that has been in full force and effect since October 2014. The Nagoya Protocol is part of the encompassing Convention on Biological Diversity (“CBD”), which was adopted in 1992. The gist of the CBD was to bring signatory states together in a common understanding of the rights and obligations of member states with respect to the sovereignty over, access, possession, development and use of certain “biodiversity” resources, primarily including genetic and unique, typically wild, biota rather than whole commodity products such as harvested timber, crops and foodstuffs.

The newly-adopted Nagoya Protocol provides a methodology whereby member states possessing biodiversity resources (genetic and other biological materials) provide access to this biodiversity under conditions that protect the interests of the member states and acts to conserve their biological resources. In effect, the Nagoya Protocol sets a framework for member states to provide “conditioned-access” to their biological resources under terms that further the interests of the country of origin of biological material while also providing for the conservation and sustainable use of biodiversity.

A key concept developed within the Nagoya Protocol is to promote the establishment of rational and formalized mechanisms that foster access and benefit-sharing (“ABS”) by and between biological resource providing states and accessing parties, such as government agencies, non-profit research organizations, and commercial entities. The ABS mechanisms defined by the Nagoya Protocol work to enhance, and make sustainable, the relationships between biological resource providers and users.
The framework of the Nagoya Protocol is a commendable achievement. However, it can only be successfully implemented via a thorough understanding of biological property rights and their link to invention and intellectual property law.

The Nagoya Protocol establishes a global framework whereby providing countries may receive monetary and other benefits derived from the conditioned-access to their biological resource materials, and corresponding users can rely upon stable guarantees of agreed-upon terms of access to those biological materials. Such arrangements are particularly important with respect to long-term, commercial-use rights that provider states may grant to users of biological materials.

Stable arrangements to use biological materials are critical for researchers to make inventions and discoveries from bioresources. Such inventions and discoveries may be patented and become very valuable. But, whatever value may be derived largely depends on the effective linkage between bioproperty and intellectual property rights.The Nagoya Protocol is a comprehensive development in the ongoing relationships by and between providers and users of biodiversity resources.

However, the structures, mechanisms, rules, and procedures whereby providing states will provide stable access to their biological resources are not currently well established nor are they universally understood. In many cases, member states with biodiversity resources lack the fiscal and structural resources necessary to implement the necessary conditioned-access to their biological resources in a rational, coherent and consistent manner.

As the long-range effects of the Nagoya Protocol begin to emerge, it is clear that many of the ratifying states need to begin to build and implement comprehensive plans, laws, and sustainable infrastructures as quickly as possible in order to commence: (1) protecting their biological resources from inappropriate exploitation; (2) providing incentive and a stable environment for ethical users of biodiversity resources; and 3) gaining the economic and social benefits that may result from providing this type access to a country’s biological resources. Similarly, users of biological materials have an inherent interest in developing standardized, long-term procedures and agreements whereby they may effectively plan to possess, develop, and utilize biological resources.

In some cases, certain ratifying member states of the Nagoya Protocol lack the fundamental appreciation and understanding of the procedures and methodologies generally linked to providing “conditioned-access” to their biological resources – conditioned access that will incentivize partners to ethically and sustainably utilize these biological resources, and conditioned access that will ensure benefit sharing to the providing country. Today, there exists a major gap between providing states and potential users concerning basic understandings of, and commitments to, the Nagoya-based principles of biological resource access.

Fortunately, there are a few world-renowned experts in the field of ethical and truly sustainable biological resource access and commercialization. These experts are unfettered by close associations with large commercial or government entities and are committed to teaching and practicing the art of sustainable and ethical biological resource access and commercialization. One such leading educator is Dr. Richard Cahoon, President of BioProperty Strategy Group. Over the span of his thirty-five year career, Dr. Cahoon has lectured in developed and developing nations around the world and has actively licensed, sold, and transferred biological resources and related intellectual properties worth hundreds of millions of dollars on behalf of governments, non-governmental entities, persons and commercial enterprises. All of Dr. Cahoon’s biodiversity-related work has been based on high ethical standards and a fundamental belief in the importance of sustainable conservation of biodiversity.

In the mid-1990's, while at Cornell University, Dr. Cahoon played a key role in creating and implementing the concept of ethical “bioprospecting.” He established a variety of bioprospecting arrangements between source countries, universities, and companies to search for potentially valuable and patentable biological inventions. During that time, Dr. Cahoon was asked by the United States Park Service (“Park Service”) to assist them with the problem of providing conditioned-access to thermophilic and other unique microbes from Yellowstone National Park.

Dr. Cahoon’s bioproperty advice and assistance for the Park Service as well as for other biodiversity-source entities was among the first such efforts of its kind in the world. As a result of his work, the Park Service successfully implemented an ethical and sustainable biological resource access structure that remains in effect.

Written in the late 2000’s, Dr. Cahoon’s seminal treatise concerning possession, rights, and use of biological resources, entitled The Relation of Patent Law and Wildlife Law in the United States, is now available in print from: LAP Lambert Academic Publishing https://www.morebooks.de/store/gb/book/patents-and-wildlife/isbn/978-3-659-63137-5

While Dr. Cahoon’s book is primarily concerned with the wild biota, biological material ownership, and invention paradigm in the United States, the lessons and methodologies that may be derived from his research are universal in scope.

Dr. Cahoon is a world expert on the ethical and sustainable ownership, transfer, and use of biodiversity resources including genetic materials, microbes, animals and their tissues, plants and seeds. In addition to his book, Dr. Cahoon actively instructs professionals and students from around the world concerning the ownership and commercialization of biological materials from domesticated and wild stocks, and collections (e.g., zoos, aquaria, germplasm repositories). Dr. Cahoon has designed and delivered custom tailored courses for governments and institutions to educate their professionals and students in the art, business, science, and law of biological resource ownership, conservation, and commercialization.

As a critical function of the Nagoya Protocol, the Global Environment Facility (the “GEF”) has been established to assist ratifying nations to finance and commence their efforts to provide conditioned-access to biological resources in a manner that induces commercialization partners to participate. The GEF is made available to the signatory states of the Nagoya Protocol. Fortunately, GEF funds may be used to retain experts, advisors, and educators, such as Dr. Cahoon, to assist those nations to understand, implement, and comply with the terms of the Nagoya Protocol, particularly in the implementation of systems that will enable them to conserve their biodiversity resources and share in the benefits to be derived from providing ethical and sustainable, conditioned-access to those resources.

In future blogs, Dr. Cahoon and I will discuss some of the key nuts-and-bolts topics related to the conditioned access of bioresources. For example:

(1) What types of entity structures work well for bioresource providers?

(2) What are the major components necessary for effective bioresource licenses?

(3) What parties make suitable partners/ licensees for bioresource providers?

(4) How long should a bioresources license remain in effect?

(5) Should a bioresource license be exclusive?

(6) What type and how much remuneration should a bioresource provider receive from a licensee?

7) What is a bailment contract and what role does it play in the linkage between access to wild biota and intellectual property?
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