As introduced in the previous entry, some countries in the world have adopted mandatory disclosure requirement for patent applications which involve genetic resources to promote access and benefit sharing (ABS) despite the controversies. The certificate of origin approach is similar to the mandatory disclosure policy. However, instead of mandating patent applicants to disclose the origin of genetic resources by themselves, this approach requires a certificate from the relevant authority where the genetic resources (and associated traditional knowledge) are acquired as a proven that they are obtained in compliance with the laws and regulations of the place of origin. Will it work better? That is the question.
To begin with, let's have a look at its bright side. First, this approach requires prior informed consent (PIC) of the genetic resources and traditional knowledge holders. This is better because the mandatory disclosure policy as such cannot stop patent applicants from taking advantage of the genetic resources without the owners' consent as long as the information is disclosed. And therefore, certificates of origin, to some degree, prevent biopiracy. Moreover, compared to the mandatory disclosure approach, certificate of origin concept will significantly reduce the workload of the patent office to verify the reliability and accuracy of the disclosed information. With creditable certificates, the patent office doesn't need to track the information all the way down to the source of origin. Finally, this approach can go even further beyond the governmental authority, and extend the granting power to certain levels of organizations, research institutions, botanical gardens and etc. where the genetic resources are found ex situ. And that will greatly increase the efficiency of the whole procedure, while promoting access of the genetic resources.
Unfortunately, certificate of origin approach has disadvantages as well. First, although it promotes PIC, what if the genetic resources owner is unreasonable? If the local authority asks an unreasonable price in exchange of the certificates for the patent, it will actually deter the access of genetic resources and counteract the concept of ABS. Despite Convention on Biological Diversity (CBD) recognized countries' sovereign right of ownership of genetic resources, relationship between nations on this issue are complicated. Furthermore, when other issues (i.e. politics, economy and corruption) get involved, certificate of origin approach will become an obstacle to access genetic resources and traditional knowledge. It may prevent biobiracy, on the other hand, it blocks goodwill as well.
Second, although the workload of the patent office will be reduced compare with the mandatory disclosure approach, the credibility of the certificate information might be an issue. In other words, someone has to track down the information, either the patent office or others. This approach shifts this burden from the patent office to someone else such as the local authorities. However, the credibility of the authorities might not be as high as what they are supposed to be. This is a serious problem in many developing countries. And it becomes more problematic when international business is involved. Even worse, when the certificate issuing authorities are granted to different levels of non-governmental organizations, the credibility will unsurprisingly deteriorate. If the certificate becomes unreliable, this approach will be actually void.
Moreover, depending on local situation, applying a certificate may take a long time, which will cause serious issue for modern first filing patent system.
To sum up, like what happened to the mandatory disclosure policy, it appears that the world is just not ready for the certificate of origin concept yet. Until it is ratified by authorities and cooperated by other policies, certificate of origin policy isn't very practical. And ITTI doesn't expect it to be widely adopted by countries in the near future.
