Unit 11 - Problems & Exercises

Arguably, from a US perspective, underlying much of the traditional knowledge discussion now surrounding TRIPs is a systemic difference of opinion over who should profit from it, and the related articulation in the Convention on Biodiversity of a right to compensation by the state from which the biological material comes (which was probably the chief reason the US never ratified the CBD).  In the alternative, Big Pharma has now accustomed itself to exploratory licenses and restrictions on the export of biological samples in many if not most developing countries, or often argues that biological sampling itself is increasingly passe in the face of computational life sciences being more important for drug design (think of descriptions of accelerated vaccine design under COVID-19).  For all students, who has the better part of the argument, when you look at the below case studies?

Please read:

a. Marden, “The Neem Tree Patent:  International Conflict over the  Commodification of Life,” 22 BC Int’l & Comp L Rev 279 (1999)(traditional knowledge);

b. Mulik & Krespi, “Geographical Indications and the Trade Related Property Rights Agreement:  A Case Study of Basmati Rice Exports” (traditional knowledge and geographic indications)

How do you understand working ideas about technology licensing under TRIPS Agreement Articles 31 and 31-bis concerning green technology, namely should they be applied to climate change?  Is the compulsory licensing system just about pharmaceuticals, and if not how would you understand the outcome of the TRIPs grand bargain in the longer term?  As a simple example, there are already lots of sunny areas around the Equator in North Africa, the Middle East and South Asia where temperature predictions after 2050 seem to indicate that they will become only marginally habitable, and if at all presumably via air conditioning during the heat of the day, assuming midday temperatures regularly exceed 120 degrees Fahrenheit, or 49 degrees centigrade.  (Meanwhile, the same is true of the American Southwest, how Death Valley earned its name.)  Living under such conditions presumably requires cooling, so if we are talking about relatively poor countries like Niger and Mali, can they by 2050 acquire rights to highly efficient solar cell technology to power air conditioners at the village level simply under Articles 31?  If they lack the industrial base to exploit such licenses, what would replace Article 31-bis applicable only to pharmaceuticals (assume you are talking about compulsory licensing of Tesla battery storage technology by then).  What does the behavior of Big Pharma in the case of retroviral drugs indicate how this might play out with Tesla?