Philippe Cullet, Christophe Germann, Andrea Nascimento Müller, and Gloria Pasadilla: ‘Intellectual Property Rights, Plant Genetic Resources and Traditional Knowledge’, in: Susette Biber-Klemm, Thomas Cottier (eds.), Rights to Plant Genetic Resources and Traditional Knowledge: Basic Issues and Perspectives, 112- 154, Swiss Development Agency, World Trade Institute (Walingford and Cambridge Mass: Cabi Publishers 2006).
Philippe Cullet et al. – Intellectual Property Rights
Susette Biber-Klemm, ‘Origin and Allocation of Traditional Knowledge and Traditional PGRA: Basic Questions’, in: Susette Biber-Klemm, Thomas Cottier (eds.), Rights to Plant Genetic Resources and Traditional Knowledge: Basic Issues and Perspectives, 157-172 Swiss Development Agency, World Trade Institute (Walingford and Cambridge Mass: Cabi Publishers 2006).
Susette Biber-Klemm – Biodiversity and the Protection of Traditional Knowledge
Thomas Cottier and Marion Panizzon, ‘A New Generation of IPR for the Protection of Traditional Knowledge in PGR for Food, Agricultural and Pharmaceutical Uses’, in: Susette Biber-Klemm, Thomas Cottier (eds.), Rights to Plant Genetic Resources and Traditional Knowledge: Basic Issues and Perspectives, 203-238, Swiss Development Agency, World Trade Institute (Walingford and Cambridge Mass: Cabi Publishers 2006).
Thomas Cottier/Marion Panizzon – A new Generation of IPR
Background
While Swiss efforts are generally aimed at strengthening intellectual property rights for a highly research and development-based economy, it is equally part of Swiss legal culture to engage in the topic from a global perspective with a view toward sustainability and the interests of rural communities and developing countries. Martin Girsberger laid important foundations long before the topic became a matter of political debate in his Ph.D. dissertation entitled Biodiversity and the Concept of Farmers’ Rights in International Law (Berne: Peter Lang 1999). Major research projects funded by the Swiss Development Agency have addressed the challenges of preserving biodiversity and developing legal tools promoting the protection of traditional knowledge, upon which crop diversity and biodiversity in general strongly depends. Scholars from different universities and countries were involved in this effort, which exceeds the capacity of a single author.
Benefit sharing from the returns of bioprospecting and genetic engineering relying upon traditional knowledge is essentially sought by means of contractual arrangements under the Nagoya Protocol to the Biodiversity Convention, and previously the Bonn Guidelines, but this fails to recognize specific and new intellectual property rights upon which licensing and claims can be founded. The field goes well beyond intellectual property but shows how central IP has become in efforts to effectively address issues of sustainability and the livelihood of rural and indigenous communities. This and other projects have contributed to the challenge being taken up in the WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC), which has been negotiating for many years on novel forms of protection. While specific results have not yet been achieved, there is an increasing awareness that new forms of protection will eventually emerge on the basis of unfair competition protection rules per Article 10bis of the Paris Convention, integrated into the TRIPS Agreement. As much as these provided the basis for the protection of geographical indications and of trade secrets in the Uruguay Round, they have the further potential of forming a foundation for the protection of traditional knowledge. New forms of traditional intellectual property rights (TIP-rights) are being discussed and proposed. Many papers, including dissertations, have been dedicated to this subject in Switzerland over the last 20 years. While not a field of primary note by practitioners and scholars, it will have a lasting impact on the overall future balance and benefits of intellectual property in a multipolar and globalized world.
Summary
The paper by the research team of Philippe Cullet, Christophe Germann, Andrea Nascimento Müller, and Gloria Pasadilla explores the potential of existing intellectual property rights, in particular patents, for the protection of plant genetic resources and traditional knowledge. The paper provides an excellent and concise survey of the rationale and functioning of IPRs and plant variety protection and elaborates on the existing mechanisms for protecting traditional knowledge and their shortcomings. The paper by Susette Biber-Klemm is informed by an awareness of the importance of recognizing traditional knowledge in plant genetic resources for agriculture (PGRFA) and protecting its informational value with a view to fostering biodiversity. She formulates the persistent research questions as to the notions of TK and the role of developing intellectual property rights in industrialization. She discusses the origin and definitions of plant genetic resources and how geographical allocation to countries or regions is addressed in the International Treaty on Plant Generic Resources for Agriculture and the Convention on Biodiversity and the UPOV Agreement on plant patents. The paper concludes by refining the research questions and outlining an excellent example of methodological research into the complex issue of the distinctiveness of plant genetic resources. It lays the groundwork for the proposition of sui generis rights discussed in the second paper by Thomas Cottier and Marion Panizzon. These authors explore and expound upon the rationale and potential for so-called TIP-rights, i.e. traditional intellectual property rights. The paper explores the difference versus existing rights, defines the scope and duration of protection and argues in favour of a registration system empowering rights holders in dealing with industries that make use of traditional knowledge and existing plant genetic resources.