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Published online by Cambridge University Press: 17 December 2022
A.1. BASE CASE
For centuries, the indigenous community ABC has harboured the knowledge of how to treat a specific eye infection with a specific plant. Plant biologist Tobin bioprospects the country where the ABC live, and he consults with the respective ‘council of the elderly’. The ‘council of the elderly’ agrees to show Tobin the plant and how it is to be grown, prepared and applied – on three conditions. Tobin may only use the plant extract for medicinal purposes and he has to safeguard against anyone else pursuing research for different purposes. Any potential patent application shall name the ABC community. In addition, ABC shall obtain a 2% share in any profits that are generated from exploiting the patent. Tobin accepts these conditions in front of the council in a formal meeting.
Assume that your own country’s laws apply and that ABC is a legal entity according to the home country’s constitution.
At home, Tobin has a laboratory colleague, Walter, who does contract research for the Army searching for a new poison. Walter discovers that the lead component of the plant is highly toxic with specific ‘beneficial’ characteristics for warfare (the toxin spreads despite unfavourable wind conditions). Walter files and is granted a patent. Does ABC have the right to veto the patent?
A.2. EDITORIAL NOTE
The case revolves around the status of ‘traditional knowledge’ and of ‘traditional knowledge holders’. Even though many European countries have signed the Convention on Biological Diversity of 1992 and agreed to its third objective (‘the fair and equitable sharing of the benefits arising out of the utilisation of genetic resources’), specific legislation operationalising this objective has only been put in place at a slow pace. Today’s (2021) central regulation (EU Regulation (EU) No. 511/2014) was not yet being discussed when the reports were written; only the Bonn Guidelines had been agreed upon (2002). To date, implementation remains slow; Belgium does not have necessary implementing acts for the EU Regulation in place.
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