Jau-Hwa CHEN

Warren H.J. KUO

Professor, Department of Financial and Economic Laws, Fu-Jen Catholic University

Professor, Department of Agronomy, National Taiwan University

100 80 60 40 20

X 103

Plant garden

500300100

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South American

North American

Central American

Caribbean Tropical Africa

Southern Africa

Europe

USSR

South Asia

China

Japan

South East Asia

Austra-New Zeland

World distribution of plant species and botanic gardens From: WWF & IUCN

Political Economy of Genetic Resources

CDB vs WTOBonn Guidelines TRIPs

Genetic Resources

Right

IntellectualProperty

Right

Prior Informed ConsentPrior Informed Consent

BioprospectingGenetic ResourcesTraditional Knowledge

The South

The North

Patent

AccessAccess Invention

Benefit SharingBenefit Sharing

ConservationUtilisation

Technology Transfer

Political Economy of Genetic Resources

The way of the reconciliation between two rights is by no means unclear. It has been a common ethic doctrine that you should get a “Prior informed consent” before doing something to somebody else, such as to build a biobank or to collect plants in other countries. Also it has been widely accepted that, if your profits are derived from others’ stuffs, then benefit sharing is justifiable. The question is: how to implement PIC and ABS. Before an international consensus is reached, the only way south countries can do is national registration.

Status of National legislation

Australia, India, South Africa, Ethiopia, Gambia, Bulgaria, Costa Rica, Peru, Venezuela 9

In force Biodiversity Laws

Access and benefit sharingPhilippines, Portugal, Bolivia, Brazil, Panama 5

Drafting Asia 19 Countries

Pacific Islands 14 Countries

Africa 11 Countries

America 9 Countries 53

TAIWAN, islands of diversified biota

Taiwan % of the world

terrestrial acreage (ha) 3,602,042 .03 % (1)

native plant species 5,676 1.9 % (63)

native animal species 29,195 2.5 % (82)

native microbe species 10,665 8.3 % (277)

native species % endemic

fungi 5749 2 %birds 456 17 %plant 5676 25 %

reptiles 98 31 %insects 19011 63 %

TAIWAN, islands of diversified biota

http://taibnet.sinica.edu.tw/chinese/taibnet_reference_sum.asp

Bio-prospecting in TaiwanRHS Garden, 1998, 123:441-3

http://www.crug-farm.co.uk/news/news_taiwan.htm

Nothapodytes nimmoniana Grahamcamptothecin

irinotecan hydrochloride

CPT-11, Camptosar

Bio-prospecting in Taiwan

By Camptosar, the Japanese company YAKULT earns 150 million Euro per year without benefit sharing with Taiwan.

Bio-prospecting in Taiwan

Yangmingshan National Park

14 Plant Patents

The Drafters

Warren H.J. KUO, AgronomyMing-Yan SHIEH, LawJau-Hwa CHEN, LawChung-His LEE, Law Kuei-Jung NI, Law

Four biologists:BotanyMicrobiologyMarine BiologyEntomology

Drafting The Genetic Resource ActTAIWAN

Genetic resource: genetic material of actual or potential value.Genetic material: biological material that containing functional units of heredity

Definition

CBD

The definition is useless, because any genetic material is of potential value sometime somewhere.

OECDBiological material Genetic material

Biological resources

Genetic resource

DefinitionThe OECD’s interpretation of the definition of CBD is somewhat obscure to us, for linguistic reason.

We agree that, genetic material is embedded in biological material, which may be alive or dead. However, all the biological materials within a confined territory we call it biological resources. Likewise, all the genetic materials within a confined territory we call it genetic resources. It is obvious that to control genetic materials is to control biological materials in most cases.

Definition

Biological Resources : alive

Biological Resources : dead

GeneticResources

Biological material

Genetic material

Dead

AliveCapable of reproduction

Definition

Living bulk commodities for commercial consumption, planting/decoration,

other traditional use within the country

Living materials for breeding, compositionscreening et al.

Non-viable specimen for taxonomic studies

Control over bioprospecting

Biological materials

should be controlled

at the customs

Definition

x

x

“First class bio-prospecting”

“Second class bio-prospecting”

For the purpose of academic research

Living materials for breeding, composition screening et al.

Collected from natural habitat

Subjected to germbank policy / International Treaty on Plant Genetic Resources for Food and Agriculture

Acquired from germplasm bank

Application and approval of bio-prospecting

The first class bio-prospecting

The second class bio-prospecting

Application of an acquisition

Preliminary examination by competent authority

Asked to revise the proposal by competent authority

Preliminary examination finished

Acquisition rejected

Inform/Consult with landholder, shcolars, et al.

Acquisition approved

Permission certificate issued

All required documents submitted

First class bio-prospecting

Application of an acquisition

Preliminary

examination

by competent

authority

Asked to revise the proposal by competent authority

Preliminary examination finished

Application rejected

Permission certificate issued

All required documents submitted

Second class bio-prospecting

Application accepted

The landholder informed. Representatives of the holder, applicant and competent authority to reach an agreement concerning bioprospecting activities, material transfer, and benefit sharing

The competent authority to examine the agreements

Agreement do not reach, Acquisition rejected

Acqisition approved

Consult with scholars

Post supervision and control

The progress of the bio-prospecting;

Biological materials collected and the conditions of their transportation;

Any information that is associated with the collected materials.

1. Prospecting report

Post supervision and control

2. Commercial implication derived from genetic material

the applicants must notify the competent authority and the landholder

the applicants should proceed with the whole procedure of application and approval of the second class

The first class bio-prospecting

The second class bio-prospecting

Post supervision and control

3. Export of genetic materials acquired by certified activities

deposit a copy of each live sample to due germplasm bank

Material Transfer Agreement

Dead specimens are free to export, without application to the competent authority

Material Transfer Agreement

Post supervision and control

4. Disclosure of origin in patent applications

USAfrican Group

Switzerland

Brazil et al.

EU

TaiwanDisclosure requirement by Genetic Resources Act, not by Patent act

Post supervision and control

4. Disclosure of origin in patent applications

The permits for exploring genetic resources in Taiwan

Describing the origins of genetic resources they used for the invention

Patent seekers should submit to Patent Office:

THANK YOU