Московский журнал международного права (Oct 2019)
Influence of Intellectual Property Rights on International Technology Transfer
Abstract
INTRODUCTION. The present article is dedicated to considering the key matters of dramatic impact of intellectual property rights, especially patents, on biotechnology transfer under regime of 1992 UN Convention on biodiversity (CBD) and on access to environmentally sound biotechnologies. The research purpose is to examine the interface between states’ international-legal obligations in the area of intellectual property protection and the conservation and sustainable use of biodiversity in terms of promoting technology transfer and diffusion. Besides that, the author strives to outline the complex of relevant measures aimed to reduce the restraining function of intellectual property rights with regard to biotechnology transfer to developing countries in the interests of sustainable development and achieving its goals.MATERIALS AND METHODS. In the course of preparation of this study, writings of researches and experts in the area of international environmental law and international economic law were used. At that, author has used materials and documents of meetings of CBD Conference of Parties, documents of the WTO, as well as resolutions of the GA UN and reports of the Secretary General. This study is premised on using the general methods of cognition (systemic and structural approaches, analysis and synthesis, deduction and induction) and methods of legal research (comparative, historical and formallydogmatic methods).RESEARCH RESULTS. Base on conducted analysis, the author has come to following research findings. International-legal regulation of biotechnology transfer under CBD is an integral part of regulation of biotechnology circulation in the interests of sustainable development and achieving its goals. Transfer of biotechnology is the element of regime of access and benefit sharing (ABS). The solution of the problem of effective implementation of art. 16 of the CBD on aiding technology transfer to developing countries is separate subject matter of conventional cooperation. Some success in realization of provisions of the art. 16 is due to convergence between the CBD regime of biodiversity and the regime of intellectual property rights protection under the TRIPS Agreement.DISCUSSION AND CONCLUSIONS. The author ascertains that, at present, the stimulating impact of intellectual property rights on technology transfer in the context of harmonizing thereof with objectives of the CBD demands, especially in the connection of spreading TRIPS-plus standards, development of cooperation of states on improving available and testing new forms of technology transfer, such as patent pools. This study substantiates the conclusion that there is need to improving ABS-regime in directions of setting up the flexible balance between rights holders and technology users on basis of increasing the confidence. The latter is achieved, at first, within the framework of Clean-housing mechanisms of the CBD and the Nagoya Protocol, and, at second, due to consecutive implementation of potential of the TRIPS Agreement.
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