Category: Intellectual Property

Contractual Arrangement Regarding Protection of Traditional Knowledge Holders

Just possibly you don’t follow all the European Society of International Law (ESIL) Conference Papers.
In that case you would miss this one.
Their paper looks at private contractual arrangements and is worth having a look at.

 

Abstract:
In the wake of increasingly widespread bio prospecting and commercial use of indigenous knowledge by enterprises and research institutions, a variety of international agreements such as the Convention on Biological Diversity (CBD) (1992), the CBD Bonn Guidelines (2002), the FAO’ International Treaty on Plant and Genetic Resources (2001), the the World Intellectual Property Organization (WIPO) Draft Provisions on Traditional Cultural Expressions/Folklore and Traditional Knowledge (2004) have proposed certain formulas for the protection of traditional knowledge (TK). The existing legal frameworks of TK protection at the international level lack specific instruments for TK protection, and rather constitute a soft law, and some regional and national laws that provide indigenous peoples with property rights over TK are not internationally recognized. There is still no operating binding international agreement that provides effective protective measures. The article argues that in the meanwhile private contractual arrangement constitutes one of the major instruments to protect TK during the bio prospecting process. Nevertheless, whether the contract basis is always workable and equitable remains controversial. The article aims to assess whether a contract model may properly protect indigenous peoples’ traditional knowledge related to genetic resources. It will explore the strength and weakness of using contracts for the protection of TK holders. Among the most significant advantages are the freedom of concluding a contract and its flexibility. Thus, the contract could be of a very flexible instrument, fitting the peculiarities of a particular transaction. On the other hand, the approach has some limitations, such as an imbalance of bargaining powers between contracting parties.

Tsikun, Marina Igorevna, Ni, Kuei-Jung and Shang-Jhy, Liu, A Review on Contractual Arrangement Regarding Protection of Traditional Knowledge Holders (December 7, 2011). European Society of International Law (ESIL) Conference Paper No. 8/2011. Available at SSRN: http://ssrn.com/abstract=1969376

Gene Thieves

Susan Watt writes at the Economic and Social Research Council a very readable introduction to the Nagoya Protocol and the looming deadline of February 2012.

The Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization (ABS) to the Convention on Biological Diversity is a supplementary agreement to the Convention on Biological Diversity.

The Nagoya Protocol applies to genetic resources that are covered by the Convention on Biological Diversity (CBD), and to the benefits arising from their utilization. The Nagoya Protocol also covers traditional knowledge (TK) associated with genetic resources that are covered by the CBD and the benefits arising from its utilization.

If you haven’t yet read all 36 articles of the Nagoya Protocol, you can get your teeth into it at  http://www.cbd.int/abs/text/

How To Be a Patent Troll

If you’ve ever longed to be a patent troll (you have, haven’t you?), you may need to study:

‘Patent Acquisition and Assertion by a (Non-Inventor) First Party Against a Second Party’, United States Patent Application 20080270152.

To give you a flavour of Halliburton Energy Services Inc’s application, here is the Abstract:

Methods for a first party to acquire and assert a patent property against a second party are disclosed. The methods include obtaining an equity interest in the patent property. The methods further include writing a claim within the scope of the patent property. The claim is written to cover a product of the second party where the product includes a secret aspect. The methods further include filing the claim with a patent office. The methods sometimes include offering a license of the patent property to the second party after the patent property issues as a patent with the claim. The methods sometimes include asserting infringement of the claim by the second party after the patent property issues as a patent with the claim. The methods sometimes include negotiating a cross-license with the second party based on the assertion of infringement of the claim, where under the cross-license the first party obtains a license to an intellectual property right from the second party. The methods sometime include attempting to obtain a monetary settlement from the second party based on the assertion of infringement of the claim.

I find this application inspiring and must now return to drafting the Claims for my new ‘Random Nonsense Patent Generator’.

Copyright & Design Rights – free CPD?

The Law Society of England and Wales offers a podcast on ‘Introduction to Intellectual Property – Copyright & Design Rights’ which could earn 1 free CPD point for some people. It looks at the definition of,  and the law governing, each right. It also examines the methods of protection against unauthorised third party use and the ways in which these rights can be unlawfully infringed upon.