Beyond finders keepers : bioprospecting, patents and human genetic materials

From time immemorial, developing countries have used biodiverse genetic resources as drugs, food, and treatments. In the 1980s, bioprospecting became the new “gold rush.” Developed countries targeted developing countries rich in biodiverse resources and collected genetic resources in most cases without informed consent or benefit sharing agreements. The illegal collection and use of genetic materials (including human genetic materials) led to outcries of biopiracy from developing countries. This biopiracy continues today. Some international laws were passed to regulate bioprospecting. The Convention of Biological Diversity (CBD), which entered into force in 1993, was the first international law to regulate bioprospecting. The Bonn Guidelines were passed in 2002 to regulate the implementation of the CBD. In 2010 the Nagoya Protocol to the CBD was passed to protect the traditional knowledge of Indigenous peoples. These regulations have two significant shortcomings. First, the current law does not address the bioprospecting of human genetic materials. Second, the law does not address misappropriation through patents. This work will address these issues. Using doctrinal and comparative research methodologies, this work will reach the following findings. First, bioprospecting applies to human genetic materials through population studies of targeted developing and Indigenous communities. Second, there are no laws to regulate the bioprospecting of human genetic materials. Third, the current national and international laws do not address the challenge of patent misappropriation. Fourth, the main proposal debated by developing countries is the “disclosure of source of origin’ requirement. Lastly, the enforcement of the disclosure requirement is unharmonized; there are disagreements on what to disclose, how to disclose, and how to infuse the disclosure requirement into patent laws. Ultimately, this work proposes to address the problem of misappropriation of human genetic materials through patents by re-imagining aspects of the TRIPS Agreement. In building this argument, it will rely on both critical IP theory and theories of new constitutionalism