New report on patent claims on genetic resources under the Budapest Treaty
Dear friends and colleagues,
We are pleased to share with you a study of almost 200 recent international patent applications under the Budapest Treaty on the International Recognition of the Deposit of Microorganisms for the Purposes of Patent Procedure.
The Budapest Treaty was completed in 1977. It creates an international union among Contracting Parties for the deposit of microorganisms related to patent applications. Under the Treaty, which has 78 parties, there are 42 laboratory facilities that are recognized as International Depository Authorities (IDAs) for materials associated with patent applications. These IDAs are located in 23 countries, mostly developed countries. The Treaty does not define microorganism and, in practice, is used for deposits not just of single celled organisms, but also material of higher organisms, including plant seeds and cell lines of plants and animals (including humans). The Treaty is also used for patent deposit of DNA and RNA in various forms.
The study by Edward Hammond, Director of Prickly Research based in the United States, finds that three quarters of patent applicants do not disclose the country of origin of genetic resources that appear in their claims and are deposited in a Budapest Treaty repository. Among the minority of patent applications in which disclosure was made, in nearly two thirds of cases the applicant and the genetic resource were from the same country.† Only in less than one in ten patent applications did the applicant divulge that a genetic resource being claimed originated in a third country, suggesting that patent applicants may avoid disclosure when claiming genetic materials from outside their own country.
The study also finds no significant correlation between ratification of the Convention on Biological Diversity (CBD) and disclosure of origin of genetic resources in patent applications. This suggests that accession to the CBD by the home country of a patent applicant is often in itself insufficient incentive to corporations to prompt disclosure of the origin of genetic resources that they claim. Indeed, patent applicants in the European Union (EU), whose members have all ratified the CBD, were the poorest performing regional group. In the study sample, EU companies divulged the origin of genetic resources only 17% of the time.
A striking confidentiality is maintained surrounding Budapest Treaty deposits. On the one hand, this is intended prevent premature disclosure of an invention, but on the other it impedes identification of the origin of deposited genetic resources. The strict secrecy thus impairs gathering data on implementation of the CBDís requirements for access and benefit sharing, hindering development of a more detailed picture of disclosure practices.
More detailed analysis of several patent applications in the study raise questions of possible misappropriation by Northern corporations that merit further investigation: ornamental plants that have been commercialised from plants of the Otomeria genus originating in East Africa; heat-loving (thermophilic) bacteria of use in producing ethanol from cellulose; gene promoter sequence obtained from sorghum very likely from Africa; strains of lactic acid bacteria, such as those used to make yogurt, which produce vitamin K2; a Paenibacillus polymyxa bacterium used as an antibiotic; and heat loving Deinococcus bacteria in applications ranging from perfumes to plastics and antibiotics to biofuels. In the cases involving bacteria there was no information of their origins.
This studyís conclusions support the goal of many developing countries that disclosure of origin of genetic resources in patent applications should be required, and indicate that international measures beyond the CBD and its Nagoya Protocol on access and benefit sharing are necessary to ensure patent procedures capable of reliably identifying cases of possible misappropriation, so that appropriate resolution procedures can be invoked. The Nagoya Protocol on Access to Genetic Resources and Fair and Equitable Sharing of Benefits Arising from Their Utilization to the Convention on Biological Diversity was concluded in 2010 and awaits 50 ratifications by CBD Parties to enter into force.
The report titled "Patent Claims on Genetic Resources of Secret Origin: Disclosure Data from Recent International Patent Applications with Related Deposits under the Budapest Treaty on the International Recognition of the Deposit of Microorganisms for the Purposes of Patent Procedure" is available at: http://www.twn.my/title2/biotk/misc/budapest_final_21%20Feb2014.pdf
With best wishes,
Third World Network