2010 Volume 3 Issue 2 Pages 47-56
For a long time plant genetic resources have been considered a common heritage of mankind that should be available without restriction. However, since Convention on Biological Diversity entered into force in 1993, the sovereign rights of states are recognized over their genetic resources. FAO started to establish a Multilateral System of access and benefit-sharing concerning plant genetic resources for food and agriculture (PGRFA) in harmony with the CBD. After seven years of negotiation, the International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGR) was adopted in 2001. Japan abstained in the voting at that time based on the fact that article 12.3(d) was ambiguous in relation to whether DNA-related inventions obtained by the use of PGRFA were patentable or not. The purpose of this paper is to propose an interpretation of article 12.3(d) in harmony with the intellectual property rights’ system of Japan. For this purpose, the article is interpreted in accordance with the ordinary meaning of the terms in their context. The preparatory work of ITPGR is employed to confirm the meaning of the article when the interpretation could be considered ambiguous. As a result, PGRFA are defined as plants and their parts including functional units of heredity such as the gene, with a phrase, “in the form received from the Multilateral System” that modifies the phrase “their genetic parts or components” in the article 12.3(d). The phrase “in the form” means that genes isolated and purified from PGRFA received from the Multilateral System are regarded as inventions and are not considered “in the form” of the original genes contained in the PGRFA. Patent rights with respect to genes isolated and purified from PGRFA are not regarded as “intellectual property rights that limit the faciliated access”. We conclude that the article 12.3(d) can be interpreted in harmony with the intellectual property rights’ system of Japan. It is recommended that necessary steps be taken to accede to ITPGR by coordination among government authorities, private companies and academic circles.
