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Patendi igus, bioloogilise mitmekesisuse ja traditsiooniliste teadmiste kaitse

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[Patent Law, Protection of Biological Diversity and Traditional Knowledge] The article concentrates on the interaction of contemporary patent law with the protection of biological diversity and traditional knowledge. It deals mainly with issues of protecting traditional knowledge and genetic resources in the intellectual property (IP) context. The basis for IP systems is the principle of territoriality. At the same time normmaking in IP is taking more and more place in a variety of international arenas. The stakeholders are constantly interested in choosing or creating an arena most suitable for their objectives. It can be called “regime shifting”. Developed countries have already chosen WTO/TRIPS instead of WIPO to raise IP protection standards. Developing countries are trying to influence WTO/TRIPS by channelling some IP-related questions to the arena created by the Convention on Biological Diversity. Pursuant to its Article 1, the objectives of the convention are the conservation of biological diversity, the sustainable use of its components and the fair and equitable sharing of the benefits arising out of the utilization of genetic resources. The concept of traditional knowledge can be divided into two categories: technical traditional knowledge (traditional medicine, agricultural practices etc) and traditional knowledge relating to art and folklore. Defining the scope of traditional knowledge is, however, very complicated. The other problem concerns the identity of the author or creator of traditional knowledge, i.e. the rightowner. The introduction of the concept of community as the rightowner only complicates matters. The article also explores the role of traditional knowledge in patenting procedure and the relevant cases. In a separate part of the article the authors analyse the problems connected with the protection of genetic resources, such as the requirement to obtain the prior informed consent of a state having the genetic resources, the disclosure of the source in a patent application and benefit sharing arrangements. Authors formulate their conclusions and several proposals in the issues dealt with.


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