Intellectual Property Rights of Nanobiotechnology in Trade Related Aspects of Intellectual Property Rights Agreement(TRIPS)

摘要

The emergent field of nanobiotechnology is currently very active worldwide with respect to intel-lectual property rights(IPR), especially patents. With the emergence of any new technology, nanobiotechnology creates opportunities as well as challenges in adapting the patent regime to its particular context. There is some consensus that patenting nanobiotechnology innovations poses problems than other technologies, owing to their multi-disciplinary character, cross-sectoral appli-cations, broad claims as well as difficulties in fulfilling the patentability criteria of novelty, non-obviousness and industrial application. This is aggravated by the lack of a standardized terminology which impedes easy identification of nanobio-patents and also the fact that patent offices may not be well-equipped to handle nanobiotechnology. Some of the other challenges in nanobiotechnology inventions patenting include: blurring of the interface that previously existed between discoveries and inventions, the lack of specific strategies to deal with the academic patents which do not have exploiting solutions, the lack of technical skills and comprehensive knowledge by national patent offices that may compromise the effectiveness of patents rights by issuing overlapping patent claims, the existence of 'patent thickets' on fundamental nanobio-scale materials, tools and processes which are already creating thorny barriers for would-be innovators and providing new opportunities for sweeping monopoly control over animate matter that could mean monopolizing the basic elements that are the building blocks of the entire natural world, bringing a whole new dimension to the notion of life patenting. To the extent that these are 'foundational' patents-that is, seminal breakthrough inventions upon which later innovations are built-researchers in the developing world could be shut out. Researchers in the global South are likely to find that participation in the 'nanobiotech revolution' is highly restricted by patent tollbooths, obliging them to pay royalties and licensing fees to gain access. This paper seeks to examine the challenges which patenting of nanobiotechnology entails for the patent regimes of especially TRIPS Agreement and how these could be addressed. The paper finally arrives at certain recommendations, to help reconcile the need to incentivize inno-vation in the new technology, with the imperative of ensuring that the public interest is served and access to the patented knowledge is not hindered.