Controlling Access to Genetic Resources under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) Requires an Assessment of the Effects of the Patents Act 1990 (Cth)
The Environment Protection and Biodiversity Conservation Act 1999 (Cth) proposes a scheme for controlling access to Australia's genetic resources in Commonwealth areas envisioned by Australia's commitment to the Convention on Biological Diversity. The objective of controlling access is to capture the economic benefits from the use of genetic materials and products derived from Australia's diverse and valuable genetic resources. We contend the proposed scheme is undermined by the operation of the Patents Act 1990 (Cth) which grants patents over broad classes of genetic materials. This practice overlooks the diversity that makes Australia's genetic resources useful and valuable with the consequence that the Australian community will not share the economic benefits from the exploiting of Australia's unique genetic resources, as (i) the patent rights to exploit this resource may be obtained independently of the proposed controlled access to the genetic resources, and (ii) the benefits of the genetic resource commodified by the patent are being predominantly captured by nonresident patent holders. Measures to ameliorate the detrimental effects of broad genetic material patenting are discussed.
Australian Intellectual Property Journal
Intellectual Property Law