SESSION VIII The Protection of Traditional Knowledge and Genetic Resources in Latin America Case Studies

Transcription

1 SESSION VIII The Protection of Traditional Knowledge and Genetic Resources in Latin America Case Studies Wolfgang L.Ohnes La Paz, BOLIVIA

2 - Efforts in the international context dealing with the discussion over protection of Tradtional Knowledge (TK) and Genetic Resources (GR), Equitable Sharing of Benefits, contact between the Patent System and GR & TK. - Due to the complex nature of the subjects the development is slow - Countries are encouraged to find a solution for their needs to protect GR TK s

3 Laws on GR & TK Institution in charge of protecting or develop of GR & TK's Is some kind of consent required for the use of GR & TK's in the field of patents? Points of contact between GR 6 TK s with the Patent system Provision for equitable sharing of benefits ARGENTINA BOLIVIA COLOMBIA ECUADOR PANAMA National Constitution art. 75; National National Provincial National Constitution arts. Constitution art. 57; Constitutions; CBD; Constitution arts , 42, 100, 101, CBD; Decision 486, IP Law art. 377, Law CBD; Decision 486; & 86; CBD; Law on 102 & 103; CBD; Decision 391; creating Decision 391 Collective Rights of Decision 486, Intellectual National Institute Indigenous Nations Decision 391, Draft Property Law arts. for Indigenous No. 20 of Law for TK & GR 120 & 376 Affairs; Draft of Law GR s National Institute for Indigenous Affairs, Secretary of Environment and Sustainable Development CONADIBIO * NOT YET Draft of Law for access to GR of 2002 National Service of Intellectual Property, Ministry of Culture, Viceministry of Indigenous Affairs and Nations Ministry of Environment, Housing and Territorial Development Intellectual Property of Ecuador, Ministry of Foreign Affairs, Ministry of Environment Trademark Office of Panama, Department of Collective Rights and Expressions of Folklore YES YES YES YES National Constitution, Decision 486, Decision 391, Draft of Law 2009 Decision 486, Decision 391 National Constitution, Decision 486, Decision 391 Intellectual Property Law Law on Collective Rights of Indigenous Nations YES YES YES YES YES

4 Conclusions of the National Survey of the Indigenous Population : 1.Protect TK through internal regulations of the indigenous communities, approving their registration in special instruments held by the community & national governments. 2. Draft a regulation to control and prevent the misappropriation of GR & TK s by third parties. 3. Registration of TK, prior authorization of the indigenous holders of the TK and rejection to the patenting of their products.

5 Recognition of the right of each indigenous community to the free determination on GR & TK. (art. 7) Regime for the access to the protected subject with the prior informed consent of the holders of TK s in their native tongue, as well as the equitable sharing of benefits between the authorized user and the providers of the TK. (arts. 8, 9, 10) Definition of misappropiation of TK with three exceptions: 1. Exchange of this knowledge among indigenous communities, 2. domestic use of traditional medicine, in hospitals by the holders of these TK or for public health; 3. Collection and registration for not profit purposes and safekeeping of the national property. (arts. 16 & 17) TK do not expire, unless they stop being a characterizing part of the identity of the indigenous communities (art. 18)

6 License agreements in Spanish and in the native language,15 aspects in favor of the holder of the rights. (art. 47) Registration does not require formalities for the protection, only: written petition for registration, particulars of the applicant, description of the object of protection. (art. 24) Records can only be consulted by Indigenous Communities with substantive rights over TK s or legitimate interest. (art. 26) The registration of TK can be cancelled (art. 34) Written request for permission of use of TK must be sent in the native language of the indigenous community, explaining impact on the environment (art. 40)

7 Use of the TK may only be in situ, not outside the national territory (art. 43) The Bolivian Patent Office must check the TK registrations before granting a patent. (art. 44) Equitable and fair sharing of benefits upon the total income, the percentage is still under discussion. (art. 55) In an infringement case, the burden of proof lies on the defendant.(art. 58) Process is carried out in the administrative phase, defendant must answer within 15 from the notification with the claim (art. 65)

8 Strong measures within the process: destruction of goods, seizure of merchandize, temporary closure of business. (art. 66) Resolution only one appeal, then a civil suit must be lodged at the Supreme Court of the Nation. (art. 74) The sanctions are fines, which get increase in case of recurrence (art. 75)

9 1997 Contact of an International Foundation for the Rural Development with Bolivian Ministry of Foreign Affairs Existence of patent No. US patent (5.304,718) granted for the Apelawa quinua filed 1992, granted 1994 collected the plant from the rims of the Titikaka Lake and deposited the seeds in an American Collection of seeds risk was created for the export of products based on hybrid varieties of Quinua from Bolivia due to the ever increasing patent annuities, the patentees decided to allow it to become abandoned.

10 used in the treatment of Leishmania Joint work of Bolivian Institute of Biology of the Altitude (IBBA) and the French Cooperation of IRD (ex ORSTOM) French-Bolivian patent (US420951/15/04/93) resources were destined to the systematic study of genetic resources of plants benefits did not reach the people of Chimanes

11 One set of arguments to deal with international interests towards GR & TK, another for the local use of GR & TK s for the national interest and public health

12 negative experiences for several countries, approach in cooperative attitude, avoiding impositions discuss about the right of the indigenous communities and the public interest Bolivia -analyze proposal of technological development of the Government based only on generic pharmaceutical products and traditional knowledge

13 Wolfgang L.Ohnes La Paz, BOLIVIA