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“What’s Yours is Mine and What’s Mine is Mine”: Digital Sequence Information, Patents, and Benefit-sharing Obligations

Speaker: Margo A. Bagley, JD, Asa Griggs Candler Professor of Law at Emory University School of Law

Website | Email | Twitter @margobagley

Abstract

Corporate and academic synthetic biology researchers are using sequence information from untold numbers of organisms to develop improvements in diverse product areas from agriculture to therapeutics. Quite often, such information is being used, and patented, without regard to the origin of the particular organism from which it was derived; in fact, the researcher may not even know or be able to easily trace the original geographic source. However, the Nagoya Protocol (NP) on Access and Benefit Sharing to the U.N. Convention on Biological Diversity (CBD), requires that users of genetic resources share the benefits of such utilization with the providers of the original resources. Although copious monetary benefits are being generated from synthetic biology-based products, there is little evidence to indicate that any meaningful benefit-sharing is taking place.

The issue of whether or to what extent digital sequence information (DSI) is subject to such obligations is a point of significant controversy in CBD/NP and FAO Plant Treaty discussions. This talk will explore positions on both sides of these issues as well as on the related issues of the feasibility of a global multilateral benefit sharing mechanism as a vehicle for users to comply with benefit-sharing obligations which are not amenable to the current bilateral benefit sharing model.

Related publications: 

Available on Researchgate at https://www.researchgate.net/profile/Margo_Bagley

• Margo Bagley, Elizabeth Karger, Frederick Perron-Welch & Siva Thambisetty, Fact-finding Study on How Domestic Measures Address Benefit-sharing Arising from Commercial and Non-commercial Use of Digital Sequence Information on Genetic Resources and Address the Use of Digital Sequence Information on Genetic Resources for Research and Development, as requested by decision 14/20 (paragraph 11(e)) from the Fourteenth Conference of the Parties to the Convention on Biological Diversity (CBD), CBD Secretariat (February 2020).
• Towering Wave or Tempest in a Teapot? Synthetic Biology, Access & Benefit Sharing, and Economic Development, in Intellectual Property on the Internet and the Connection with Human and Economic Development (Susy Frankel and Daniel Gervais eds., Victoria University Press 2017).
• The De-Materialization of Genetic Resources: Synthetic Biology, Intellectual Property, and the ABS Bypass, in Routledge Handbook of Biodiversity and the Law, (Charles McManis and Burton Ong Eds., 2017).
• Eric W. Welch, Margo A. Bagley, Todd Kuiken, Selim Louafi, Potential Implications of New Synthetic Biology and Genomic Research Trajectories on the International Treaty for Plant Genetic Resources for Food and Agriculture (ITPGRFA or ‘Treaty’) (for the Secretariat of the UN FAO ITPGRFA) (2017).
• Margo A. Bagley, Digital DNA: Synthetic Biology, Intellectual Property Treaties, and the Nagoya Protocol (2015) (Woodrow Wilson International Center for Scholars).
• Margo A. Bagley & Arti K. Rai, The Nagoya Protocol and Synthetic Biology: A Look at the Potential Impacts (2013) (Woodrow Wilson International Center for Scholars).

Speaker Bio

Margo A. Bagley is Asa Griggs Candler Professor of Law at Emory University School of Law. She rejoined the Emory faculty in 2016 after a decade at the University of Virginia, School of Law, where she was most recently the Hardy Cross Dillard Professor of Law.

Bagley received her JD in 1996 from Emory, where she was a Robert W. Woodruff Fellow, an editor of the Emory Law Journal, and elected to Order of the Coif. She is a member of the Georgia bar and is licensed to practice before the US Patent and Trademark Office. Bagley worked as an associate with Smith, Gambrell & Russell, LLP and Finnegan, Henderson, Farabow, Garrett & Dunner, LLP before becoming an assistant professor of law at Emory University in 1999 and associate professor in 2002. She was a visiting professor of law at Washington & Lee University School of Law in fall 2001 and at the University of Virginia School of Law in fall 2005, after which she joined the University of Virginia faculty in 2006. She is a faculty lecturer with the Munich Intellectual Property Law Center at the Max Planck Institute in Germany, and also has taught International Patent Law and related courses in China, Cuba, Israel, and Singapore.

Bagley currently serves on the National Academies Committee on Advancing Commercialization from the Federal Laboratories, and previously served on the National Academies Committee on University Management of Intellectual Property: Lessons from a Generation of Experience, Research, and Dialogue. She is also an expert technical advisor to the African Union in several World Intellectual Property Organization (WIPO) matters and is the Friend of the Chair in the WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore. Bagley has served as a consultant to the UN Food and Agriculture Organization Secretariat for the International Treaty on Plant Genetic Resources for Food and Agriculture, and as a US Department of Commerce CLDP advisor. In addition, she served as a member of the Convention on Biological Diversity’s (CBD) Ad Hoc Technical Expert Group on Digital Sequence Information on Genetic Resources for the CBD and Nagoya Protocol. Her scholarship focuses on comparative issues relating to patents and biotechnology, pharmaceuticals and access to medicines, technology transfer, and IP and social justice.

Bagley has published numerous articles and book chapters, as well as two books with co-authors: Bagley, Okediji and Erstling, International Patent Law & Policy (West Publishing 2013) and Patent Law in Global Perspective (Okediji and Bagley eds., Oxford University Press 2014). She also authored a report on Digital DNA: Synthetic Biology, Intellectual Property Treaties, and the Nagoya Protocol, commissioned by the Woodrow Wilson International Center for Scholars. A chemical engineer with a BS ChE degree from the University of Wisconsin-Madison, Bagley worked in industry (with the Procter & Gamble Company and the Coca Cola Company) for several years before attending law school, and is a co-inventor on a patent for reduced fat peanut butter. Bagley also completed research internships at Oak Ridge National Laboratory, Lawrence Livermore National Laboratory, AT&T Bell Laboratories, and the NASA Marshall Space Flight Center. Her courses include US and International & Comparative Patent Law, Trademark Law, and Intellectual Property.