IPR instruments: patents and geographical indications

Transcription

1 UNCTAD/CD-TFT 1 IPR instruments: patents and geographical indications ABS and Intellectual Property Rights Addis Abeba, Ethiopia, 5-9 September 2011 Christoph Spennemann, Legal Expert, IP Unit Division on Investment and Enterprise UNCTAD

2 UNCTAD/CD-TFT 2 Overview of Presentation Introduction: categories of IPRs Patents Legal technical infrastructure Example of patents in the context of ABS Geographical indications (GIs) Legal technical infrastructure Examples of GIs in the context of ABS

3 UNCTAD/CD-TFT 3 Categories of IPRs Patents: technical solutions/inventions Patents on natural substances (GRs) or traditional know-how? Copyright: expression of ideas E.g. poems, music, ceramics, etc Industrial designs: new or creative shapes & designs E.g. textiles, furniture Trademarks: distinction of producer & reputation Use of marks for TK/GR-related products GIs: distinction of geographical area by linking origin with quality, reputation, etc Café de Colombia; Cacao de Chuao Trade secrets: secret information of commercial value E.g. Coca-Cola formula

4 UNCTAD/CD-TFT 4 Patents: Art 27 TRIPS Inventions: technical intervention to solve particular problem Natural substances (GRs) extractions and purifications, biotech products incorporating GRs & ATK All fields of technology But certain exclusions from patentability New: not available to public prior to application Use of TK databases by patent examiners Is disclosure of origin/source & legal acquisition helpful? Inventive: obvious for person skilled in the art? Are databases and/or disclosure of origin helpful? Applicable by industry: no protection of theories

5 UNCTAD/CD-TFT 5 Patents: scope of protection Negative rights: exclude others from making, selling, using protected matter Products Processes Even if independent creation (unlike copyright) No positive marketing right (extra approvals e.g. for pharmaceuticals)

6 UNCTAD/CD-TFT 6 Patents: limitations & exceptions Limits of patentability: Art TRIPS Discoveries (natural substances?) Medical treatments, plants & animals, biological processes, plant varieties (qualification!) But patentable: microorganisms (e.g. pathogens for vaccines) Exceptions from granted rights: Art 30 E.g. for research/experimental use Non-commercial & commercial, if main purpose is generation of new knowledge (improved product)

7 UNCTAD/CD-TFT 7 Example: misappropriation of Ayahuasca Plant used by Quichua people (Amazon) for medicinal & ritual purposes 1986: USPTO grants US patent no. 5,751 to US scientist on Ayahuasca No benefit sharing with Quichua people Indigenous organizations and NGO file request for reexamination 1999: USPTO revokes patent for lack of novelty Ayahuasca was publicly known & available before filing of patent application Would disclosure requirement have prevented the grant?

8 UNCTAD/CD-TFT 8 GIs: definition Indications of origin that link product characteristics or reputation to geographical origin Darjeeling, Basmati, Emmentaler (cheese), Tequila Particularly appropriate to protect GRs & TK (unlike patents): Quality/reputation built through tradition Natural factors (e.g. soil, climate) as part of the quality Community rights: any producer in indicated region

9 UNCTAD/CD-TFT 9 GIs: scope of protection All products: Prevent use of misleading indications that create public confusion as to origin of product (e.g. «Parma ham» from UK) Clarification possible: «style», «imitation» Acts of unfair competition (e.g. false information on product characteristics) Wines & spirits: prevent use of misleading indications even if no confusion about origin E.g. «Champagne-style Californian sparkling wine»

10 UNCTAD/CD-TFT 10 Examples: Quinua Real: GI in Bolivia. TM in US Quinoa variety only grows at 13,000 feet in Bolivian salt flat region Rich mineral soil, arid conditions 1/3 bigger than other quinoa varieties Yield 8% premium over market price Cacao de Chuao: GI in Venezuela and Andean region Varieties of cocoa beans grow on trees benefiting from favorable climate & soil conditions

11 UNCTAD/CD-TFT 11 Conclusions Sui generis protection of TK, GRs: limited potential of classical IP instruments Patents require technical intervention & novelty GIs build on tradition, natural factors, communal rights But GIs management requires experience & long-term commitment by producers Defensive protection from misappropriation TK databases and disclosure of origin for patent examiners GIs or trademarks as additional means to ensure benefits But they only protect sign/name, not the substance

12 UNCTAD/CD-TFT 12 Contact Christoph Spennemann Legal Expert Intellectual Property Unit Investment Capacity-Building Branch Division on Investment and Enterprise (DIAE) UNCTAD Tel: ++41 (0) Fax: ++41 (0)