The Interface between Access to Genetic Resources, Benefit Sharing and Intellectual Property Right Laws in Ethiopia: Analysis of their Synergies
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Date
2010-12
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Addis Ababa University
Abstract
The issue of the relationship between Access to Genetic Resources and Benefit Sharing (ABS) and
Intellectual Property Rights (IPRs) is partly related to whether or not patents or other IPRs over genetic
resource related inventions should be conditional up on Genetic Resources (GRs) being accessed legally
as per ABS laws and regulations of the country from which they are accessed. Several national ABS laws
now require that an application for IPR based on GRs or have made use of GRs disclose the source/origin
of the GR, proof of prior informed consent (PIC) and proof of benefit sharing arrangements (the
disclosure requirements). These requirements are put as a condition to access GRs under the Convention
on Biological Diversity (CBD).
Disclosure requirements, as a way to prevent misappropriation of GRs through IPRs without benefit
sharing arrangements, have been proposed in different international fora and national lawmaking
processes. The recently adopted Nagoya Protocol on ABS has while addressing these issues it does not
include mandatory DRs as a compliance mechanism. The issue is also being discussed in the TRIPs
Council (Trade Related aspects of Intellectual Property Rights).
This study seeks to address the relationship between IPRs and ABS with a particular focus on the
disclosure requirements. In that light analyses have been made on the pertinent international law on the
subject as well as on Ethiopian laws having relevance to the issue. An attempt has also been made to
examine the two ABS Agreements Ethiopia has concluded thus far. The analyses in the paper have come
with the following findings: (1) the Ethiopian legal regime on access to GRs, with a view to create a link
between ABS and IPRs, requires the access permit holder to recognize the locality from where the GR
was accessed as origin in IPR applications; (2) the Proclamation on Inventions, Minor Inventions and
Industrial Designs does not make the patentability of inventions based on GRs contingent up on lawful
access of the resources thereto; (3) the legal regime providing for plant breeders’ rights has made proof of
access in accordance with access legislations as a condition for the grant of a plant breeder right; (4) the
two ABS agreements Ethiopia has concluded thus far have included IPR related provisions and in
particular, they have imposed an obligation on user companies to recognize Ethiopia as a country of
origin in the former and source in the latter in IPR applications on products developed from the accessed
GRs.
Based on the analyses, the paper has made a range of recommendations with a view to ensuring a
coherent relationship between IPRs and ABS in Ethiopia.
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Keywords
Access and Benefit sharing, intellectual property rights, disclosure requirements