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Adelman, Martin J. --- "A comment on 'Human rights as a constraint on intellectual property rights: the case of patent and plant variety protection rights, genetic resources and traditional knowledge'" [2010] ELECD 341; in Grosheide, Willem (ed), "Intellectual Property and Human Rights" (Edward Elgar Publishing, 2010)

Book Title: Intellectual Property and Human Rights

Editor(s): Grosheide, Willem

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781848444478

Section: Chapter 14

Section Title: A comment on 'Human rights as a constraint on intellectual property rights: the case of patent and plant variety protection rights, genetic resources and traditional knowledge'

Author(s): Adelman, Martin J.

Number of pages: 5

Extract:

14. A comment on `Human rights as a
constraint on intellectual property
rights: the case of patent and plant
variety protection rights, genetic
resources and traditional knowledge'
Martin J. Adelman*
In a thoughtful analysis of various issues, both legal and moral, relating to
traditional knowledge and genetic resources (Chapter 13), Professor
McManis has proposed a major change to patent systems of the world,
`requiring the disclosure of origin of genetic resources and/or traditional
knowledge relied on and evidence of prior informed consent as a condition
of enforcing an otherwise valid patent or plant variety certificate'. He does
this even though he seems to recognize that it is fundamentally unfair for
nations that have not enforced patent rights in the past to benefit from the
extremely valuable information which the patent system has placed in the
public domain through expired patents while at the same time seeking to be
compensated for the use of its genetic resources which in the eyes of the
patent system are also in the public domain. The same may be said for trad-
itional knowledge to the extent that it is not maintained secret in the conven-
tional trade secret law sense.
It should also be remembered that everyone benefits from patented tech-
nology as it is technology that embodies an inventive leap over the prior art. It
may be used for a fee during the life of the patents covering it and then it
passes completely into the public domain. Further, Professor McManis recog-
...