Actes de la Journée de droit de la propriété intellectuelle organisée le 8 février 2010 par l'Association internationale pour la protection de la propriété intellectuelle (AIPPI Suisse) et le Centre d'arbitrage et de médiation de l'Organisation mondiale de la propriété intellectuelle.
In the global fight against biopiracy, one of the key issues is to prevent the grant and exploitation of patents on traditional knowledge and genetic resources by requiring that patent applicants for inventions involving traditional knowledge and genetic resources disclose the source of those resources and provide evidence that the prior informed consent of the local owners of such resources has been obtained and that benefit-sharing agreements have been entered into with those owners. This Article argues that a legal discussion of biopiracy should analyze the obligation to disclose the use of traditional knowledge and genetic resources in an invention beyond the sanctions that are attached in case of violation of such obligations as previously discussed at the international level.
In the information age, intellectual assets (such as trade secrets and music) are flowing across borders and between continents. However, legal hurdles may still negatively affect and prevent the smooth flow of these intellectual assets, as shown in the article. Even though the article analyses the issue from a European perspective with a view towards Asia (China and Japan), the legal issues which it identifies are typical by nature and can thus be viewed as local examples of a truly global and international issue. The analysis concludes that, beyond the potential differences in the substantive level of protection of trade secrets and of music (as resulting from the substantive intellectual property laws) which may exist between national or regional intellectual property regimes, hurdles to the cross-border flow of intellectual assets may also—and perhaps more importantly—result from other legal fields (such as private international law, technology import and export regulations and the regulation regarding the collective management of copyrights). As a result, any policymaker wishing to promote the crossborder flow of intellectual assets should imperatively take into account these aspects when thinking about the design of a balanced and fair policy framework.
