Patent law and bioprospecting in Antarctica

Polar Record, Vol 47, No 1, 2010, pp. 46-55

The number of patents and patent applications related to inventions based on biological material from the Antarctic is increasing. Bioprospecting in the Antarctic is happening with no explicit regulation of property rights or benefit sharing requirements. This leaves patent law as the only legal system to establish exclusive rights to genes, bacteria, and other biological material found in the Antarctic. Patent law is general in form and is applied to all areas of invention with very few adaptations to single fields of innovation. Therefore, it is interesting to identify the issues in patent law in cases in which the biological material from the Antarctic is likely to create challenges or loopholes. The aim of this article is to couple the understanding of this particular legal regime and of biological circumstances in the Antarctic with knowledge of the international patent system for the purpose of contributing to the work of the Antarctic Treaty Consultative Meetings (ATCMs) regarding bioprospecting in the Antarctic.