Abstract:

China entered the Nagoya Protocol on September 6, 2016, signaling its establishment of the regime regarding protection of genetic resources and associated traditional knowledge as well as the Access and Benefit Sharing system (ABS) at both the national and international levels. It is stated that the purpose of defensive protection is to prevent bio-piracy while that of constructive protection is to facilitate benefit sharing. Based on years of field research, we reveal in this study that a user of De’ang acid tea, which is associated with local traditional knowledge, has applied for its patent without the consent of the original holder of its traditional knowledge, thereby constituting an act of bio-piracy. To achieve the purpose of defensive protection, we suggest that domestic patent laws be amended to make it mandatory (for any applicant) to disclose the origin of the traditional knowledge concerned to prevent bio-piracy. To achieve the purpose of constructive protection, we propose that, in accordance with the Nagoya Protocol, a sui generis system should be established through legislation to creatively develop a workable benefit sharing system, which involves identification of various traditional knowledge holding subjects, follows the principles of Prior Informed Consent (PIC) and Mutually Agreed Terms (MAT), and adopts the measure of compensation liabilities or Creative Commons License (CC) with the view to fulfill two major objectives of the Convention on Biological Diversity, namely conservation and sustainable use.

Key words: Nagoya Protocol, access and benefit sharing (ABS), traditional knowledge associated with acid tea, bio-piracy, disclosure of origin (DOO)