Jau-Hwa CHEN Professor Department of Financial and Economic

Jau-Hwa CHEN Professor, Department of Financial and Economic Laws, Fu-Jen Catholic University Warren H. J. KUO Professor, Department of Agronomy, National Taiwan University

North American USSR Europe Central American X 100 80 60 40 20 Plant South Asia _ Caribbean 103 500 300 100 garden China Tropical Africa Japan _ South East Asia _ Southern Africa South American Austra-New Zeland World distribution of plant species and botanic gardens From: WWF & IUCN

Political Economy of Genetic Resources Right CDB Bonn Guidelines Intellectual Property Right vs WTO TRIPs

Political Economy of Genetic Resources The North Prior Informed Consent Benefit Sharing The South Technology Transfer Conservation Utilisation Bioprospecting Patent Genetic Resources Traditional Knowledge Access Invention

The way of the reconciliation between two rights is by no means unclear. It has been a common ethic doctrine that you should get a “Prior informed consent” before doing something to somebody else, such as to build a biobank or to collect plants in other countries. Also it has been widely accepted that, if your profits are derived from others’ stuffs, then benefit sharing is justifiable. The question is: how to implement PIC and ABS. Before an international consensus is reached, the only way south countries can do is national registration.

Status of National legislation In force Biodiversity Laws Australia, India, South Africa, Ethiopia, Gambia, Bulgaria, Costa Rica, Peru, Venezuela 9 Access and benefit sharing Philippines, Portugal, Bolivia, Brazil, Panama 5 Drafting Asia 19 Countries Pacific Islands 14 Countries Africa 11 Countries America 9 Countries 53

TAIWAN, islands of diversified biota Taiwan terrestrial acreage (ha) native plant species native animal species native microbe species 3, 602, 042 5, 676 29, 195 10, 665 % of the world. 03 1. 9 2. 5 8. 3 % % (1) (63) (82) (277)

TAIWAN, islands of diversified biota native species fungi birds plant reptiles insects 5749 456 5676 98 19011 % endemic 2% 17 % 25 % 31 % 63 % http: //taibnet. sinica. edu. tw/chinese/taibnet_reference_sum. asp

Bio-prospecting in Taiwan RHS Garden, 1998, 123: 441 -3 http: //www. crugfarm. co. uk/news/ news_taiwan. htm

Bio-prospecting in Taiwan camptothecin Nothapodytes nimmoniana Graham irinotecan hydrochloride By Camptosar, the Japanese company YAKULT earns 150 million Euro per year without benefit sharing with Taiwan. CPT-11, Camptosar

Bio-prospecting in Taiwan 14 Plant Patents Yangmingshan National Park

TAIWAN Drafting The Genetic Resource Act The Drafters Warren H. J. KUO , Agronomy Ming-Yan SHIEH , Law Jau-Hwa CHEN , Law Chung-His LEE, Law Kuei-Jung NI, Law Four biologists: Botany Microbiology Marine Biology Entomology

Definition CBD Genetic resource: genetic material of actual or potential value. Genetic material: biological material that containing functional units of heredity The definition is useless, because any genetic material is of potential value sometime somewhere.

Definition The OECD’s interpretation of the definition of CBD is somewhat obscure to us, for linguistic reason. OECD Biological material Genetic resource Biological resources

Definition We agree that, genetic material is embedded in biological material, which may be alive or dead. However, all the biological materials within a confined territory we call it biological resources. Likewise, all the genetic materials within a confined territory we call it genetic resources. It is obvious that to control genetic materials is to control biological materials in most cases.

Definition Dead Capable of Alive reproduction Biological material Genetic material Biological Resources : alive Genetic Resources Biological Resources : dead

Definition Living bulk commodities for commercial consumption, planting/decoration, Control over other traditional use within the country bioprospecting x Living materials for breeding, composition Biological materials screening et al. should be controlled at the for taxonomic studies Non-viable specimencustoms x

Collected from natural habitat “First class bio-prospecting” For the purpose of academic research “Second class bio-prospecting” Living materials for breeding, composition screening et al. Acquired from germplasm bank Subjected to germbank policy / International Treaty on Plant Genetic Resources for Food and Agriculture

Application and approval of bio-prospecting The first class bio-prospecting The second class bio-prospecting

Application of an acquisition All required documents submitted Permission certificate issued Preliminary examination by competent authority Inform/Consult with landholder, shcolars, et al. Asked to revise the proposal by competent authority Preliminary examination finished Acquisition approved Acquisition rejected First class bio-prospecting

Application of an acquisition Preliminary All required documents submitted by competent examination authority Consult with scholars Acqisition approved The competent authority to examine the agreements Permission certificate issued Agreement do not reach, Acquisition rejected Second class bio-prospecting Asked to revise the proposal by competent authority Preliminary examination finished Application accepted Application rejected The landholder informed. Representatives of the holder, applicant and competent authority to reach an agreement concerning bioprospecting activities, material transfer, and benefit sharing

Post supervision and control 1. Prospecting report The progress of the bio-prospecting; Biological materials collected and the conditions of their transportation; Any information that is associated with the collected materials.

Post supervision and control 2. Commercial implication derived from genetic material The first class bio-prospecting the applicants should proceed with the whole procedure of application and approval of the second class The second class bio-prospecting the applicants must notify the competent authority and the landholder

Post supervision and control 3. Export of genetic materials acquired by certified activities deposit a copy of each live sample to due germplasm bank Material Transfer Agreement Dead specimens are free to export, without application to the competent authority Material Transfer Agreement

Post supervision and control 4. Disclosure of origin in patent applications Switzerland EU African Group Brazil et al. Taiwan Disclosure requirement by Genetic Resources Act, not by Patent act US

Post supervision and control 4. Disclosure of origin in patent applications Patent seekers should submit to Patent Office: The permits for exploring genetic resources in Taiwan Describing the origins of genetic resources they used for the invention

THANK YOU