Patenting genetic materials' unresolved issues and promoting competition in biotechnology

This paper addresses the broader unresolved issues posed by the patenting of genetic materials that are central to dealing with the tension between the patenting and competition schemes, namely distinguishing between what has already been 'discovered' and economically useful innovations (including the thresholds for novelty and non-obviousness), the exclusion of some subject matter from patenting and the restrictions on access to genetic resources to facilitate further innovation. The possible solutions of raising the threshold patenting standards, taking advantage of international intellectual property law developments and compulsory licensing are examined as ways to ameliorate the possibly detrimental consequences of current genetic material patenting practices. (C) 2003 Elsevier B.V. All rights reserved.

Patents and the CGIAR system of International Agricultural Research Centres' germplasm collections under the International Treaty on Plant Genetic Resources for Food and Agriculture

A key controversy in negotiating the International Treaty on Plant Genetic Resources for Food and Agriculture, and the likely long-term effectiveness of the agreement, is the way in which the intellectual property provisions are interpreted and applied to the key genetic resources forming the Consultative Group on International Agricultural Research (CGIAR) system of International Agricultural Research Centres' (IARC) collections. This paper reviews the intellectual property provisions in the treaty and examines the likely consequences from patenting under the Patents Act 1990 over materials derived from these collections. The consequence is argued to be significant and, over time, these practices are likely to deplete the usefulness of these collections and undermine the relevance of the treaty. The paper concludes that Australia's interests might best be served by arguing that access to these collections, and the other materials under the treaty, be subject to a non-exclusive, royalty free licence for any use of the derived materials to develop useful new plant varieties.