The introduction in patent statutes of a requirement to disclose the origin of genetic resources and prior informed consent of the use of traditional knowledge in claimed inventions (hereinafter “the Requirement”) has been at the center of an international debate for the last few years. Many developing, biodiversity-rich countries consider that the Requirement is an essential component of a broader approach to patent law, which should be informed by considerations of economic development. At the other end of the spectrum, a few industrialized countries believe that the Requirement is not only incompatible with current international law, in particular the TRIPS Agreement, but that it also undermines the value of patents as titles that secure private property rights because it unnecessarily complicates the already complex patent procurement procedures and reduces legal certainty. Actually, the debate on the Requirement has caused international discussions on the advancement of standards of patentability to stall, to the prejudice of the interests of inventors and the society at large in obtaining titles that are more secure and less prone to challenges, thus increasing legal security of intangible assets. An objective clarification of the legal aspects of the Requirement, therefore, has become a matter of urgency. That is what this Essay intends to achieve. This Essay has two main objectives: to explain that the Requirement, as a condition of patentability aimed at monitoring the implementation of the Convention of Biological Diversity (CBD), is incompatible with current international law, including the CBD itself; and to discuss possible ways of adopting the Requirement that are compatible with international law.
Germplasm resources, Patent applications, Traditional knowledge, Consent (Law)