Susy Frankel Victoria University of Wellington New Zealand Cultural Inappropriateness as a Matter of Ordre Public A presentation for Patenting People Benjamin N.Cardozo School of Law November 2006 (paper forthcoming)

International Debate Connection between TRIPS and CBD TRIPS 27.2 CBD 8(j)

TRIPS 27.2 “Members may exclude from patentability inventions, the prevention within their territory of the commercial exploitation of which is necessary to protect ordre public or morality, including to protect human, animal or plant life or health or to avoid serious prejudice to the environment, provided that such exclusion is not made merely because the exploitation is prohibited by their law.”

CBD 8(j) “Each Contracting Party shall, as far as possible and as appropriate:… (j) Subject to its national legislation, respect, preserve and maintain knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity and promote their wider application with the approval and involvement of the holders of such knowledge, innovations and practices and encourage the equitable sharing of the benefits arising from the utilization of such knowledge, innovations and practices”

Patents relating to “people” genetic resources Indigenous peoples and culturally distinct groups: relatively homogenous disease relevant to developed world

Add to patent law? No patent registered that relates in anyway to human genetic resources unless: prior informed consent benefit sharing agreed

Consistency with other parts of TRIPS Objectives and principles

Would such a law be TRIPS compliant? Exception to patentability A carve out requires a legitimate basis: Ordre public 3 step test Subject matter non-discrimination (Art 27.1) National treatment and most favored nation

Ordre Public and the WTO US-Measures Affecting the Cross-Border Supply of Gambling and Betting Services- Panel 6.461 “… the content of [“public order”] concepts for Members can vary in time and space, depending upon a range of factors, including prevailing social, cultural, ethical and religious values.” “More particularly, Members should be given some scope to define and apply for themselves the concepts of "public morals" and "public order" in their respective territories, according to their own systems and scales of values.” We are well aware that there may be sensitivities associated with the interpretation of the terms "public morals" and "public order" in the context of Article XIV. In the Panel's view, the content of these concepts for Members can vary in time and space, depending upon a range of factors, including prevailing social, cultural, ethical and religious values. Further, the Appellate Body has stated on several occasions that Members, in applying similar societal concepts, have the right to determine the level of protection that they consider appropriate.[1] Although these Appellate Body statements were made in the context of Article XX of the GATT 1994, it is our view that such statements are also valid with respect to the protection of public morals and public order under Article XVI of the GATS. More particularly, Members should be given some scope to define and apply for themselves the concepts of "public morals" and "public order" in their respective territories, according to their own systems and scales of values. [1] See Appellate Body Reports on Korea – Various Measures on Beef , para. 176 and EC – Asbestos, para. 168.

Distinguish ordre public from morality What is the difference? EU approach is informative but not determinative

3-step test for patent carve-outs (art 30) “Members may provide limited exceptions to the exclusive rights conferred by a patent, provided that such exceptions do not unreasonably conflict with a normal exploitation of the patent and do not unreasonably prejudice the legitimate interests of the patent owner, taking account of the legitimate interests of third parties.”

Subject Matter discrimination (art 27.1) Canada Pharmaceuticals- relationship between articles 27.1 and 30 how to comply with both limited exception but not discriminating against a particular field of technology

Other Issues Not a national treatment or MFN violation Consistency with the objectives and principles of TRIPS