A patent defence approach to sharing aquaculture genetic resources across jurisdictional areas

Abstract

Access and benefit sharing (ABS) of genetic resources is a concept that is increasingly important for product development in aquaculture. ABS regulates the way aquatic genetic resources can be accessed from the world's waters and how the benefits that result from their use are shared between the providers and users of genetic resources and their derivatives. This article gives an overview of the multiple approaches to sharing aquaculture genetic resources under ABS regimes across the three jurisdictional areas in which they are found—waters within national jurisdiction, beyond national jurisdictions and in the Antarctic Treaty Area. It highlights the complexity and inconsistencies relating to obligations for technology transfer across the various regimes and the implications this has for sharing genetic resources for use in aquaculture. It offers a practical solution to navigating this complexity by using an evolving patent defence approach consistent with the World Trade Organisation's Agreement on Trade‐Related Aspects of Intellectual Property Rights (TRIPS). It concludes that this approach can guide the resolution of legal challenges that ABS regimes across the jurisdictional areas have in common, which concern derivatives and commercial use of genetic resources.

Governing aquaculture commons

“…political economy, macro economics), 185,186 international and multilateral politics (e.g. law, foreign policy) 135,136,187,188 and discursive analyses on the evolution, development and change of topics and framings around aquaculture (e.g. political ecology, sociology, human geography) 186,189‐191 .…”

“…Property rights can be applicable institutional solutions for dealing with collective action challenges 129 of nearly all first‐order commons in aquaculture including to physical entities such as land or sea space and freshwater access 130‐133 . They can also be applied to knowledge and access to genetic resources in the form of intellectual property rights 134‐137 . As a second‐order collective problem, who should invest in creating or changing property rights?…”

A systematic quantitative literature review of aquaculture genetic resource access and benefit sharing

“…This geographical origin benchmark might be relatively clear for terrestrial resources confined to national jurisdictions. However, aquatic genetic resources are located within national jurisdictions, in areas beyond national jurisdiction and in the Antarctic Treaty Area, which causes complexities for overlapping regimes in the three jurisdictional areas (see Humphries ). The free movement of aquatic species between jurisdictional areas and the lack of information about the particular accession's origin challenges whether the geographical approach is appropriate for the exchange and use of aquatic genetic resources.…”

Survey of access and benefit-sharing country measures accommodating the distinctive features of genetic resources for food and agriculture and associated traditional knowledge

“…Allaire, Labatut and Tesnière, 2018), species used in commercial aquaculture (e.g. Rosendal et al, 2013), marine AqGR (Humphries, 2017) and traditional medicinal plant species for the pharmaceutical, nutraceutical and cosmetic industries (Robinson et al, 2018). This strong focus on commercially important species in all subsectors highlights an important gap in ABS research and development for non-commercially important species that are essential for future climate change adaptation, ecosystem services, research and general conservation of GRFA, such as crop wild relatives (e.g.…”