We have a strong interest in counter-patents and keep our eyes open for the latest in this field. We are keen to support counter-patenting initiatives, particularly in connection with genetic resources and the knowledge of traditional communities.
One idea that we have come across is defensive publication. This is a direct counter-patent measure; it means publishing a description of an invention, which in some countries could even be deposited at a national patent office. For example, a scientist working with a rural community which uses a plant extract as a medicine could publish an explanation of the plant's use and the method of producing the extract. If this were done in a manner which made the invention new, useful and non-obvious, it would be impossible for a company to patent it.
However, one problem is that in many countries it would be necessary to isolate and to describe the active ingredients of the extract. Companies could circumvent patent laws by producing synthetic or semi-synthetic versions; this was true in the case of neem.
Patent laws in most countries conflict with the Biodiversity Convention, because if the 'invention' is new, useful and non-obvious, it is patentable. In my view, there should ideally be a protocol to the Biodiversity Convention that would oblige countries to revise their patent laws to confirm with the Convention. This would have to state that applications for life patents must include documentary evidence that the donor country and community where relevant, gave its prior informed consent to the transfer of material and/or information. Even though companies are not party to the Convention, governments are, and it is governments which have the power to grant monopoly rights to companies (or in some cases to themselves) via patent laws, or to deny such rights. Of course, one can argue that it is naive to suppose that such a protocol could be agreed upon.
In India, a community register being developed by at least two organisations - Navdanya in New Delhi, and the Foundation for the Revitalisation of Local Health Traditions in Bangalore - is a good idea. If local communities document their knowledge of biodiversity it, they can control this knowledge ensure that it does not get into the hands of industry without their consent.
Another strategy which may be somewhat effective is for a community or a regional association representing several communities to declare that their community or region is a life-forms patent-free zone. This has indeed been called for in the Pacific Ocean region at a UNDP-supported Regional Meeting of Indigenous Peoples that took place last April in Fiji. Legally it probably has little basis, but such a declaration may raise awareness among local people on the issue of patenting,and make clear to companies that biodiversity prospecting without the prior informed consent of the locals is unacceptable.
It would appear that developing a counter-patents system is going to be a long-term process. One of our undertakings at the moment is to elaborate the concept of Traditional Resource Rights (TRIZ), which unites bundles of rights which existing legal systems already uphold or accomodate. Among these are collective rights, human rights, development rights, IPR, and customary law. Although strictly speaking a counter-patents system, TRR as a basis for legislation and negotiation would severely circumscribe the right to patent of a company without benefit-sharing guarantees. ...
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