Disclosure of Origin in European Biotechnology Patent Law: A Social Network Analysis Perspective

Abstract

Abstract Recital 27 of the European Union Directive 98/44/EC on the Legal Protection of Biotechnological Innovations mandates the disclosure of the geographical origin of biological material when the invention is based on or incorporates such material. This requirement seeks to monitor the origin of biological materials, often linked to indigenous and local communities, to ensure prior informed consent and equitable benefit-sharing with resource providers. Several European countries, such as Switzerland and Norway, legally require this disclosure, and the Draft International Instrument of the World Intellectual Property Organization is poised to expand the list of nations with such requirements. However, the definition of ‘origin’ presents challenges for patent applicants, as it may refer to the primary source (e.g. indigenous and local communities, the country of origin) or secondary sources (e.g. ex situ plant collections or commercial suppliers). Moreover, defining the information to be disclosed as the origin is crucial for the credibility of disclosure statements. To address this issue, this article pioneers a social network analysis approach to the issue of biopiracy and disclosure of origin. It introduces the network-centric narratives of 30 prominent cases of biopiracy from South and Southeast Asia, Latin America, and Africa, and unveils the average distance between the nodes previously accused of biopiracy and the nodes that correspond to the origin of the biological material in question. By highlighting the role of intermediaries in distorting information within material distribution networks, the findings contest the feasibility of requiring patent applicants to provide information on both primary and secondary sources.