Fixing Ownership of Mobile Resources? How Intellectual Property Rights Could Complicate Access and Benefits Sharing Regimes for Marine Genetic Resources

The new treaty on the conservation and sustainable use of marine biodiversity beyond national jurisdiction (BBNJ Treaty) marks the first formal attempt to address the global sharing of benefits derived from Marine Genetic Resources (MGRs) of Areas Beyond Natural Jurisdiction (ABNJ). Driven by concerns from developing nations regarding inequitable distribution of benefits, the BBNJ Treaty requires the sharing of both monetary and non-monetary benefits from MGRs, including digital sequence information. However, the BBNJ Treaty is silent as to both intellectual property rights and the Treaty’s application to “straddling” MGRs that move across jurisdictional boundaries. While a new World Intellectual Property Organization treaty (WIPO Treaty) governs patents on genetic resources, it does not specifically address MGRs or digital sequence information, requiring only that patent applicants disclose the origin or source of genetic materials. Since many MGRs are mobile throughout their lifecycle and cross jurisdictional boundaries, the “origin” or “source” of these MGRs is unclear under the status quo. Moreover, the BBNJ Treaty’s provisions for non-monetary sharing of benefits (e.g., sharing of data) are often inconsistent with patent property rights prohibiting the unauthorized use of patented material. This paper argues that to meaningfully address global inequities, the Conference of Parties to the BBNJ Treaty should address these gaps when developing the access and benefits sharing modalities. We recommend that the COP: (1) clarify in which circumstances straddling MGRs are deemed “of” ABNJ and therefore subject to the BBNJ Treaty; (2) require that patent applications for inventions derived from MGRs "of" ABNJ or associated digital sequence information disclose ABNJ as the origin or source, consistent with the WIPO Treaty; (3) incorporate royalties from the commercialization of such patents into the monetary benefits sharing modalities; and (4) develop a licensing mechanism for such patents to effectively enable the required sharing of non-monetary benefits. A comprehensive treatment of these gaps through access and benefits sharing modalities will help the BBNJ Treaty to further the Common Heritage of (Hu)mankind Principle, promoting the equitable use of ABNJ resources for the benefit of current and future generations.