About UsPolicy on Intellectual Property
Intellectual property rights are a major issue in the field of biodiversity research. They affect how research institutes carry out their work and shape their research priorities. In 2000, Bioversity adopted its corporate policy on intellectual property rights. (It was revised to reflect the coming into force of the International Treaty on Plant Genetic Resources (the Treaty) and the Agreement between Bioversity International and the Governing Body of the Treaty on October 16, 2006.)
The policy is divided into 17 sections:
I. Preamble
II. Scope of the Policy
III. Definitions
IV. General Principles
V. Objectives of Intellectual Property Management
VI. Principles of Conduct
VII. Access to Proprietary Technology
VIII. Germplasm
IX. Breeding Material
X. Research Products
XI. Protection Prerequisites
XII. Mechanisms for Access and Benefit Sharing
XIII. Publications (printed and electronic), Databases, Reports, Training Material, Public Awareness, Artwork, Audi-Visual Material
XIV. Trademarks
XV. Ownership
XVI. Implementation
XVII. Effective Date
I. Preambule
1. Bioversity is an autonomous international scientific organisation operating under the aegis of the Consultative Group on International Agricultural Research (CGIAR). Its mandate is to advance the conservation and use of plant genetic resources (PGR) for the benefit of present and future generations and more specifically its mission is:
To encourage, support and undertake activities to improve the management of genetic resources worldwide so as to help eradicate poverty, increase food security and protect the environment. Bioversity focuses on the conservation and use of plant genetic resources important to developing countries and has an explicit commitment to specific crops.
2. Intellectual property rights are essentially a grant of exclusive marketing rights accorded to promote science, technology, the arts, consumer choice and to encourage investment and secure returns on it. To the extent that Bioversity acquires such rights, it is committed to use them exclusively in support of its objectives, in a manner consistent with its mission. Where appropriate, it will liberally grant licenses or waive its rights.
3. Bioversity's Policy on Intellectual Property has been developed to assist Bioversity in achieving its objectives, in particular by providing:
4. Bioversity's Policy on Intellectual Property is also designed to establish the basis of transparent and consistent decision making. This will ensure that Bioversity acts consistently in relation to intellectual property issues, and closely ties the use of intellectual property protected material to furthering its mission, with special regard to its beneficiaries.
II. Scope of the policy
Bioversity's Policy on Intellectual Property covers the following:
III. Definitions
For the purpose of this Policy:
1. Beneficiaries shall mean the world community, and in particular the poor in developing countries;
2. Black Box Storage is the storage of germplasm accessions, or an entire collection from an originating genebank, at another genebank with the understanding that the storing genebank will have no obligations other than to maintain the material under appropriate conditions and will have no rights to exchange or use the stored material in any way, without written agreement from the originating genebank;
3. Breeding Material shall mean germplasm developed by Bioversity including breeding lines, elite germplasm and breeding material under development;
4. Derivative means material derived or developed from designated germplasm or other genetic materials distributed or received by Bioversity;
5. Annex I Germplasm means genetic resources of species and genera included in the Annex I of the Treaty; these are the materials that are included in the multilateral system of access and benefit sharing created by the Treaty;
6. Plant Genetic Resources means the reproductive or vegetative propagative material of the following categories of plant:
7. Non-Annex I Germplasm means genetic material of all species and genera that are not specifically included in Annex I of the Treaty;
8. Research Products means information, inventions, products, processes, techniques, biological material, including improved crop germplam and any other research products or processes funded or developed by Bioversity, and
9. Supplier means a party legally empowered to supply the material in accordance with the Convention on Biological Diversity (CBD) and relevant national legislation.
IV. General Principles
1. Bioversity endorses the Guiding Principles for the CGIAR International Agricultural Research Centres on Intellectual Property and Genetic Resources (hereinafter CGIAR Guiding Principles).
2. Bioversity recognises the national sovereignty of states over their biological resources, including their genetic resources, affirmed by the CBD and the Treaty, and the principles of access and fair and equitable benefit sharing of genetic resources as stated in the CBD and the Treaty.
3. Bioversity encourages germplasm donors to permit the distribution of material pursuant to the 2006 Agreement between Bioversity and the Governing Body of the Treaty, signed October 16, 2006. To that end Bioversity encourages donors to allow Bioversity to distribute donated materials pursuant to the SMTA for Annex 1 materials, the interim MTA for non-Annex 1 materials for the time being, and in the MTA that will be amended by the Governing Body of the Treaty during its Second Session in November 2007 for non-Annex 1 materials in the future.
4. Bioversity recognizes Farmers Rights as contained in the Treaty and shall adopt access and benefit sharing principles to encourage and protect indigenous and farming communities' knowledge, innovation and practices related to plants and plant genetic resources.
5. Bioversity shall act in accordance with its Ethical Principles, as approved by the Bioversity Board of Trustees at its fourteenth meeting on 22 September 1999.
V. Objectives of Intellectual Property Management
1. Bioversity shall manage intellectual property issues with:
2. In any pursuit, exercise and management of intellectual property issues, Bioversity shall be guided by its mission and its October 2006 Agreement with the Governing Body of the Treaty.
3. It is anticipated that suitable occasions for the exercise of intellectual property by Bioversity may arise in the following situations:
4. Decisions on intellectual property issues will be determined by Bioversity on a case-by-case basis and only after a specific judgement that such arrangements will best achieve the objectives set out above and are in accordance with this Policy. This Policy will also apply to Bioversity's activities as a broker of arrangements between third parties which involve intellectual property rights, and in this regard Bioversity will seek to influence such arrangements so they accord with this Policy.
VI. Principles of Conduct
1. In all intellectual property decisions, Bioversity will act in a transparent, fair and equitable manner and disclose the reasons for its decisions.
2. Bioversity does not view the protection of intellectual property as a mechanism for securing recurring financial returns upon which it may depend. To the extent that such returns are generated, they will be used in support of specific tasks and projects fully compatible with the mandate of Bioversity and which support benefit sharing.
3. All arrangements with third parties associated with the access, joint creation, use or exploitation of intellectual property protected materials will be documented.
4. The resolution by Bioversity of all intellectual property issues related to PGRFA will be guided by, and comply with, the Treaty, the October 2006 Agreement with the Governing Body, the SMTA and interim MTA (and the amended MTA, once it is amended by the Governing Body at its Second Session in November 2007)
VII. Access to proprietary Technology
1. Technology of others which is protected by intellectual property (proprietary technology) may be used by Bioversity in order to gain access to innovations that might enable Bioversity to make important advances necessary to furthering its mission.
2. Prior to the use and application of the proprietary technology, Bioversity will identify any restraints associated with use of the proprietary technology and distribution of products or processes incorporating the proprietary technology.
3. Any such restraints must clearly justify the benefits of use of the proprietary technology and adherence by Bioversity to such restraints must be consistent with the Objectives set out in this policy.
VIII. Germplasm
1. Bioversity holds germplasm in trust for the world community in conformity with the October 2006 Agreement between Bioversity and the Governing Body of the Treaty
2. Bioversity will make Annex 1 germplasm available to recipients on the conditions set forth in the Standard Material Transfer Agreement (SMTA) adopted by the Governing Body of the International Treaty during its First Session in June 2006.
3.Bioversity will make non-Annex 1 germplasm available to recipients using the 'interim MTA' adopted by the Commission for Genetic Resources for Food and Agriculture in May 2003. The Governing Body will amend that MTA at its Second Session in November 2007.
4. Germplasm duplicated for security reasons will be treated on the same terms as the original material.
5. Bioversity may, at its discretion, accept germplasm for black box storage which will generally not be available except in accordance with conditions placed by the donor of the germplasm.
IX. Breeding Material
1. Bioversity adheres to the principle of ready availability of breeding material for breeding and research activities.
2. Access to Breeding material protected by others by intellectual property rights: To promote the availability to developing nations of germplasm and scientific innovations that have been protected by others through the exercise of intellectual property rights, Bioversity may enter into agreements with the holders of such rights.. As a matter of principle, Centres will not normally exploit such material unless the original material and any product derived from that material can be made available to others on terms that are consistent with those applicable to the transfer of PGRFA under the multilateral system. In the interests of promoting scientific innovation for the benefit of the poor, Bioversity reserves the right to make exceptions to this general policy with respect to materials required for use in breeding programmes.
3. Distribution of improved material: Bioversity will distribute improved Annex 1 materials using the SMTA. It may nominate those materials as 'products under development' when appropriate.
X. Research Products
1. Based on the assumption that its operations will continue to be sponsored by public funds, Bioversity regards any information, inventions, processes, biological material or other research products funded or developed by Bioversity (research products) as international public goods to be used in furtherance of its mission. To the extent that research products are achieved in co-operation with the private sector, Bioversity will administer resulting intellectual property rights in accordance with the policies set out in particular in Section V to the utmost extent possible, in particular with a view to support benefit-sharing.
2. Bioversity will take every possible measure to facilitate access to research products for the public benefit in particular in developing countries through publication and public disclosure.
3. Where it is uncertain or unlikely that publication or public disclosure will facilitate access to or ensure delivery of research products for the public benefit in particular in developing countries Bioversity will, exceptionally, pursue this objective by:
4. As a result of the pursuit, exercise and management of intellectual property, Bioversity may impose conditions on the supply of the research products, assuming that appropriate access arrangements have been made in favour of appropriate beneficiaries and are consistent with the International Treaty and the SMTA.
5. When involved in research either directly or as a funder, Bioversity will require the collaborator or grantee to seek permission from Bioversity before applying for any intellectual property protection of the research products.
6. Improved germplasm will be distributed under the Governing Body-approved SMTA; it will identify those materials as 'products under development' when appropriate.
7. The circumstances in which Bioversity, collaborators, grantees or recipients may protect by intellectual property the research products or the results of their research or breeding using the research products are specified in Section XI: Protection Prerequisites.
XI. Protection Prerequisites
1. Decisions on consenting to the application for intellectual property protection will be taken by Bioversity on a case-by-case basis in accordance with the principles set forth in Article V.1 and only after a specific judgement that such arrangements will best achieve the objectives of intellectual property management set out in this policy.
2. All such decisions will be guided by, and comply with, the Treaty, the October 2006 Agreement with the Governing Body, the SMTA and interim MTA (and the amended MTA, once it is amended by the Governing Body at its Second Session in November 2007)
3. Any material derived from the designated germplasm, breeding material or research products must first qualify as a derivative before it will be eligible for intellectual property protection.
4. Where plant variety protection is sought, it must be consistent with the provisions of UPOV or any other sui generis system that does not preclude others from using, in their breeding programmes, either the original material or the new variety on which protection is sought.
5. With regard to the patenting of cells, organelles, genes, molecular constructs, plants, varieties and traits, Bioversity shall pay due regard to the nature of the recipient and the product, and the effect that the protection would have on access to and distribution of the protected product, before agreeing to proceed with an application for patent protection.
6. No intellectual property protection will be agreed to without satisfactory and equitable benefit sharing arrangements' being undertaken in accordance with this agreement.
7. Agreements granting recipients the right to apply for intellectual property protection do not in any way waive the rights of Bioversity to challenge excessive protection granted, by recourse to administrative and court proceedings.
XII. Mechanisms for Access and Benefit Sharing
1. Bioversity supports the establishment of the multilateral system of access and benefit sharing created by the Treaty; Bioversity supports the conservation, development and sustainable use of plant genetic resources through, inter alia, benefit sharing and the recognition of Farmers' Rights in accordance with the provisions of the Treaty.
2. Bioversity will use the SMTA for the acquisition and distribution of Annex 1 germplasm in the multilateral system of access and benefit sharing created by the Treaty.
3. Bioversity supports efforts to bring about an equitable balance between intellectual property rights and the protection of traditional knowledge in relation to the use of plant genetic materials, with a view to foster conservation, sustainable use and benefit sharing.
XIII. Publications (printed and electronic), Databases, reports, Training Material, Public Awareness,Artwork, Audi-Visual Material
1. Bioversity encourages the wide dissemination of its publications (printed and electronic) including, databases, reports, training material and public awareness material, artwork and audio-visual material to the plant genetic resources community, and seeks that such materials be used to maximum public benefit.
2. In creating such materials Bioversity shall:
3. All Bioversity publications (printed and electronic) will carry standard copyright convention signs, indicating Bioversity as the copyright owner of the compilation, published edition and/or the material published (as appropriate) together with the year of publication.
4. Bioversity will incorporate in its publications (printed and electronic) standard copyright notification statements:
5. Bioversity may, to the extent available in national laws, enforce its copyright in Bioversity publications (printed and electronic) and protect them from unfair competition in order to:
XIV. Trademarks
1. Bioversity may register the "Bioversity" name and logo and any other distinctive marks as trademarks in order to protect the goodwill and reputation associated with the exclusive use of these marks by Bioversity.
XV. Ownership
1. Any intellectual property rights in research products, publications and other works created or contributed to by Bioversity staff in the course of their normal and assigned professional duties shall be vested in Bioversity and this will be reflected in all employment contracts.
2. Any intellectual property right in research products, publications and other works commissioned by Bioversity shall be assigned to and vested in Bioversity as a right holder.
3. Staff will be required to disclose all innovations arrived at in the course of their employment with Bioversity.
4. Collaborative research or research funded by Bioversity shall be on the basis that Bioversity shall either:
5. Where collaborative research products or works are to be owned jointly, ownership shall be determined in proportion to the comparative contributions of the parties.
XVI. Implementation
1. This Policy shall apply to all of Bioversity's activities, programmes and offices and accordingly, all references to Bioversity in this Policy shall be construed to include references to these entities.
2. Responsibility for implementing this Policy rests with the Director General.
XVII. Effective Date
1. This Policy is effective from 1 April 2000, and shall remain in force until superseded, cancelled or suspended in writing by the authority of the Board of Trustees.
2. It is anticipated that this Policy will be subject to further review and revision to reflect international legal developments concerning intellectual property and plant genetic resources.