Zugang zu Pflanzengenetischen Ressourcen für die ... - Genres

W. E. SIEBECK
Convention) set an example: For payment of $l million and provision of field equipment, Costa
Rica's Instituto Nacional de Bioversidad will provide an unspecified number of probes (plants,
insects, microbes) at Merck's choice over a period of two years. Merck has the right to patent
inventions it makes from Costa Rican material, but has promised to pay INBio an undisclosed
percentage of sales revenues. INBio intends to use the proceed in its on-going biodiversity
conservation programs.
In their search for genes, agricultural biotechnology industries are likely to follow the lead of the
pharmaceutical industry, although holding out smaller monetary rewards coupled with access to
improved seed material and collaboration agreements. The scope for joint research arrangements
seems large in the agricultural area, and certainly greater than in the pharmaceutical field; while
the odds of finding a blockbuster product are smaller.
Academic and other public research groups may not be able to compete on the terms that industry
can offer, especially with up-front payments. They may have other options: they can form alliances
with industry, as Cornell University did in the Merck-Costa Rica deal. Or they may offer research
and training services in exchange for genetic material. The Arrangement which the U.S. National
Cancer Institute offers seems to point in this direction. The NCI annually procures some 6.000
samples of plants, marine organisms and microbes from developing countries. In exchange it trains
scientists from source countries and promises to negotiate a share of royalties on behalf of the
source country with the eventual manufacturer of a cancer drug.
Public genebanks, the major players in the current campaign to save the world's genetic resources,
may not be able to do this. If a genebank cannot pay, and has little else to offer in exchange for
genetic material 16 , developing countries may release genetic material only against a commitment
from the genebank to restrict the use and distribution of the material. Supplying countries may,
for instance, request a genebank to track every subsequent user who then would be required to
share royalties with the source country. As genebanks have generally no control over distribution
except for their first release, they may not be able to enter into such commitment; which, in turn,
could seriously impede their collection efforts.
The international agricultural research centers which to date have sent out probes without
formality to any bona fide researcher worldwide are reviewing this policy. They may in future
apply contractual arrangements through which they would control the subsequent use of material
they make available. Such material transfer agreements – less restrictive than those used within the
breeding and biotechnology industry – could limit or exclude the patentability of derivatives
developed from center material (though this would not preempt the validity of a patent that is
obtained in violation of such agreement), and provide for the sharing of benefits or the granting
of royalty-free licenses to the originating center and/or the source country. Agreements could be
concluded for each release of material (e.g. through a form letter accompanying each shipment),
16
They could offer their better equipped storage facilities to genebanks from developing countries.
However, distrust in North-South relations has so far not permitted such arrangements on a larger scale.