Canadian Lawyer

w w w . C A N A D I A N L a w y e r m a g . c o m J U N E 2 0 1 6 41 part of that, the Nagoya Protocol, which is part of the convention, addresses access to genetic resources and fair and equitable sharing of benefits arising from their uti- lization. It came into force in 2014, but Canada is not a signatory although it is a party to the convention. India and Swit- zerland are signatories, but China and the United States are not. The Nagoya Protocol relates to the use of genetic resources and traditional knowledge. If you are going to access genetic resources prior, informed con- sent is required from the holder of those resources, which could be an indigenous community. Then there is a requirement for agreement on access and benefit shar- ing for a fair and equitable part of the benefits. It must also be done on mutually agreed terms. "We're not a party to that," says Schwartz, who has been part of the consultations with the Canadian govern- ment on it through his work through the Intellectual Property Institute. "From an IP practitioner's perspective, the provi- sions do look very complex and amor- phous. Who do you negotiate with and who is authorized to do this?" A patent right is much more concrete: You invent something, you describe it, you file your application. Could there be a dispute over inventorship? Perhaps, but it could be sorted out. This is where the new and unique right of sui generis — in a class of its own — comes in. "In IP law, the fact you found your working materials in a particu- lar jurisdiction doesn't give those people rights. This is giving rights to those where the plant was found on their land," says Schwartz. "Despite the challenges, there is the possibility it will make sense for Canada to join this. There is concern in my profession the requirements are very uncertain and difficult to analyze, but there are people who will come at it from a very different perspective who work with those in the traditional knowledge field." So far, the battleground in this area has been marked by the developing world versus developed world dichotomy, says Andrew Skodyn of Lenczner Slaght Royce Griffin LLP. "That's the idea that patent- ing of Western medicine and small mol- ecules, synthetic drugs has been thus far well documented and developed and a standard protocol by which one ensures that one protects one's own innovation," he says. "Whereas the greatest concern of biopiracy has been, to this point, that companies are allegedly going and trying to patent something that has been public domain for a long time and no one has written it down. That issue in Canada has come up mostly in the context of the policy aspects of the battle between first to patent and first to invent." Skodyn says he wouldn't be surprised "to discover there are traditional remedies or other medicines that North American or Canadian First Nations have used over the years that some day some enterprising pharmaceutical company might find and the issue is going to be are they really devel- oping it such that it is a new thing? There is knowledge that is fundamental to people, and whether that's traditional medicine known for years or the genes that are inside ourselves that we're just not comfortable with someone owning a patent over, and so we want to draw distinctions." Untitled-5 1 2016-05-12 2:28 PM intellectual property special report

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