Technology Transfer of Aquatic Genetic Resources Under the Convention on Biological Diversity and Nagoya Protocol : 'Sponging' Off Patent Law Defences

Aquatic genetic resources are one of the last frontiers for bioprospecting and an important resource for global food security. Genetic resources within national jurisdiction are presently governed by a complex matrix of access and benefit sharing regimes including the United Nations’ Convention on Biological Diversity (CBD) and Nagoya Protocol as well as patent laws under the World Trade Organisation's Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS). This article identifies the legal uncertainties for discharging technology transfer obligations that are shared by all three instruments, including the scope of derivatives falling within the obligations, the scope of ‘use’ along the research to commercialisation continuum and extraterritorial complexities. This article provides an insight into how a TRIPS-compliant patent defence framework can be used to interpret and clarify technology transfer obligations under the CBD and the Nagoya Protocol. Given that developing countries provide the majority of the world’s aquaculture product, the need for a consistent approach to ‘fair and equitable’ technology transfer under patent and ABS regimes will become increasingly important as patents start to take hold in aquaculture