Regulating Protection, Preservation and Technology Transfer of Biodiversity-Based Drugs : Patents, Contracts and Local Working Requirements Under the Microscope

The production of biodiversity-based drugs has gained wide interest and concern. Two main approaches can be observed. The majority of legal thinking has been focusing on models protecting (and preserving) biodiversity and associated traditional knowledge to fit the needs of biodiversity and traditional knowledge holders. The Convention on Biodiversity (CBD) clearly stipulates that Contracting Parties (read: developed countries) shall take legislative, administrative or policy measures, with the aim of sharing in a fair and equitable way the results of research and development and the benefits arising from the commercial and other utilization of genetic resources with the Contracting Party providing such resources (read: developing countries). Somewhat lesser attention has been given in academic circles to legal tools stimulating transfer of technology related to biodiversity-based drugs. Such an approach may be inspired by the CBD, which also stipulates that Contracting Parties (read: developed countries) shall take measures, with the aim that Contracting Parties, in particular those that are developing countries, which provide genetic resources, are provided access to and transfer of technology which makes use of those resources, on mutually agreed terms, including technology protected by patents and other intellectual property rights, where necessary. Instead of focusing on workable mechanisms providing protection for (and preservation of) biodiversity and traditional knowledge, these scholars mainly reflect on legal instruments which might be helpful in establishing transfer of technology relating to genetic resources and traditional knowledge. In doing so, they do not enter into the global access-to-medicine debate, but confine themselves to the more restricted topic of biodiversity-based drugs. The present paper first defines some concepts and classifications, in an aim to set the starting points of the debate right. The paper then reviews current instruments which can offer protection and preservation for biodiversity and associated traditional knowledge, both from the perspective of holders and users. In doing so, the paper comments on the way the various instruments have been presented by Ghidini & Arezzo and casts the multitude of measures in a more systematic framework. The paper then centres on one of the measures which can be helpful in transferring technology related to genetic resources and traditional knowledge, more in particular the local working requirement. Ghidini & Arezzo are one of the fewer scholars exploring this avenue of thinking, and the current paper will examine their viewpoint. Some concluding remarks critically overlook the current debate