As introduced in the previous entry, some countries in the
world have adopted mandatory disclosure requirement for patent applications
which involve genetic resources to promote access and benefit sharing (ABS)
despite the controversies.  The certificate
of origin approach is similar to the mandatory disclosure policy.  However, instead of mandating patent applicants
to disclose the origin of genetic resources by themselves, this approach
requires a certificate from the relevant authority where the genetic resources
(and associated traditional knowledge) are acquired as a proven that they are obtained
in compliance with the laws and regulations of the place of origin. Will it
work better? That is the question.

To begin with, let’s have a look at its bright side. First,
this approach requires prior informed consent (PIC) of the genetic resources
and traditional knowledge holders. This is better because the mandatory
disclosure policy as such cannot stop patent applicants from taking advantage
of the genetic resources without the owners’ consent as long as the information
is disclosed. And therefore, certificates of origin, to some degree, prevent
biopiracy. Moreover, compared to the mandatory disclosure approach, certificate
of origin concept will significantly reduce the workload of the patent office
to verify the reliability and accuracy of the disclosed information. With
creditable certificates, the patent office doesn’t need to track the information
all the way down to the source of origin. Finally, this approach can go even
further beyond the governmental authority, and extend the granting power to
certain levels of organizations, research institutions, botanical gardens and
etc. where the genetic resources are found ex
situ
. And that will greatly increase the efficiency of the whole procedure,
while promoting access of the genetic resources.

Unfortunately, certificate of origin approach has
disadvantages as well. First, although it promotes PIC, what if the genetic
resources owner is unreasonable? If the local authority asks an unreasonable
price in exchange of the certificates for the patent, it will actually deter
the access of genetic resources and counteract the concept of ABS. Despite
Convention on Biological Diversity (CBD) recognized countries’ sovereign right
of ownership of genetic resources, relationship between nations on this issue
are complicated. Furthermore, when other issues (i.e. politics, economy and corruption)
get involved, certificate of origin approach will become an obstacle to access
genetic resources and traditional knowledge. It may prevent biobiracy, on the
other hand, it blocks goodwill as well.

Second, although the workload of the patent office will be
reduced compare with the mandatory disclosure approach, the credibility of the
certificate information might be an issue. In other words, someone has to track
down the information, either the patent office or others. This approach shifts
this burden from the patent office to someone else such as the local
authorities. However, the credibility of the authorities might not be as high
as what they are supposed to be. This is a serious problem in many developing
countries. And it becomes more problematic when international business is
involved. Even worse, when the certificate issuing authorities are granted to
different levels of non-governmental organizations, the credibility will unsurprisingly
deteriorate. If the certificate becomes unreliable, this approach will be
actually void.

Moreover, depending on local situation, applying a
certificate may take a long time, which will cause serious issue for modern
first filing patent system.

To sum up, like what happened to the mandatory disclosure
policy, it appears that the world is just not ready for the certificate of
origin concept yet. Until it is ratified by authorities and cooperated by other
policies, certificate of origin policy isn’t very practical. And ITTI doesn’t
expect it to be widely adopted by countries in the near future.