Shellfish Patents Krill Research: Patent Law Defences and Technology Transfer of Genetic Materials and Knowledge in Aquaculture

Abstract

The recent rise of access and benefit sharing (ABS) and patent laws concerning the use of aquatic genetic resources is creating increasing legal complexity and uncertainty for the aquaculture sector. The complexity and uncertainty comes at a time when the sector needs unprecedented access and exchange of genetic resources, technologies and knowledge for its early stages of domestication and scientific research and development. Arguably, the complexity largely stems from using the geographical origin of a resource to determine which ABS or stand-alone technology transfer obligations apply. This may suit transactions of terrestrial genetic resources whose origin can be determined within national jurisdiction. It is less suited to self-replicating aquatic genetic resources that can migrate between jurisdictional areas. It is also less suited to regulating derivatives such as the digital (knowledge) resource accessed independently from the physical genetic resource. This thesis looks beyond the geographical origin to three underlying approaches that generalise how international instruments regulate ABS and technology transfer of genetic resources within three jurisdictional areas – proprietary (within national jurisdiction), stewardship (beyond national jurisdiction or the ‘deep sea’) and cooperative (in the Antarctic Treaty Area) approaches. The benefit of this categorisation is to understand the assumptions and principles underlying each instrument’s approach to technology transfer with a view to finding similarities and compatibilities between three shared legal challenges.