This Article provides afresh and multi-dimensioned approach to a long-standing claim of biopiracy patents made by developing countries and communities. The basic principles of patent law and policy are first established to provide a foundation from which to evaluate the claim that genetic resources and traditional knowledge from developing countries are being misappropriated in a variety of ways that are loosely referred to as biopiracy. The Article distinguishes rhetoric from reality in examining biopiracy allegations from the perspective of national patent laws, as well as international agreements. In addition, the Article explains the underlying conflicts, misconceptions, and historical biases that have predisposed some to biopiracy claims. Similarly, the Article presents a new perspective on how the present landscape of international agreements, as well as negotiation stances, has failed to lead to satisfactory resolution of biopiracy claims despite years of heated discussion within major international forums, including the World Trade Organization, the United Nations, and the Convention on Biological Diversity.
In addition to explaining the dynamics behind the current stalemate, this Article provides a template for moving forward. As a first step, the Article advocates that the piracy lingo be jettisoned and that substantive discussion instead focus on issues that have mutual appeal to all countries. Drawing upon past success of issue-framing in the context of the access to medicine debate, this Article proposes new foci that nations might universally agree on. For example, this Article suggests a novel linkage between biopiracy patents and more general problems within Western patent law to help focus on issues of interest to all nations. In addition the Article proposes a new internet-based process for promoting meaningFul dialogue that will likely be more effective than current proposals because it avoids previous intransigent issues. This final proposal has broad application to many issues at the intersection of patent law and social policy, ranging from the proper scope of patentable subject matter, to the scope of exceptions from patent liability.
Cynthia M. Ho,
Biopiracy and Beyond: A Consideration of Socio-Cultural Conflicts with Global Patent Policies,
U. Mich. J. L. Reform
Available at: https://repository.law.umich.edu/mjlr/vol39/iss3/4