One of the main objectives of the Convention on Biological Diversity (1992) was to ensure that the benefits derived from the use of genetic resources were shared with the countries of origin of such resources (mainly countries of the Global South, rich in biodiversity), to whose purpose it was introduced a regime known as “access and benefit-sharing” (ABS); however, time has proven that this objective has not been satisfactorily achieved, due, among other things, the lack of clarity of ABS rules, which inevitably has been affecting both users and competent national offices.
Furthermore, the aforementioned legal uncertainty has extended to the patent system of the Andean Community, since, according to its rules, patent applicants who claim protection for an invention obtained from a genetic resource from one of its member countries have to prove that the access to said resource is consistent to ABS rules, under penalty of having their application withdrawn, which seems to be an unfair result for applicants, who have no clarity as to when it is necessary to comply with those rules.
The goal of this doctoral research is to determine what are the concrete causes of the legal uncertainty derived from the international ABS regime and what their scope is. Moreover, it is sought to establish the real impact that this legal uncertainty is having on patent processing in the countries of the Andean Community. Based on the findings, alternative solutions will be formulated to eliminate or reduce the causes of uncertainty, either through actions aimed at correcting the international ABS system or through actions directly applicable to the Andean patent system.
