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Module II: The Fundamentals of Bioprospecting Negotiations
Negotiating an Agreement
The particular combinations, types, and allocations of rights and benefits comprising a bioprospecting agreement are limited only by the imaginations of the contracting parties. Workshop faculty provided an overview of some basic options based on existing experience.
As noted above, access rights and limitations are specified by permits. The details of the times, places, methods, quantities, and assignability of collection are all subject to negotiation between the parties. Applications can also be subjected to peer review prior to issuance of a permit.
Intellectual Property Rights
The subject of intellectual property rights is dealt with in greater detail in Module III; in this context it may suffice to note that rights associated with innovations resulting from research on biological materials can be subject to negotiation. The inclusion of IPR considerations in the bioprospecting agreement is optional, and is dependent upon the nature of the rest of the agreement, e.g., whether the agreement is limited to transfer of materials or whether there is a shared research component, and the extent to which resulting innovations draw from existing traditional knowledge. There may also be other pertinent IPR questions. For example, can a newly discovered and useful but naturally occurring and unaltered microbe be patented? If so, should rights belong to the bioprospector alone or shared with the owners or inhabitants of the source area? These are battles that are now being fought at the negotiating table as well as in the courts.
Economic benefits can include such varied items as license fees, royalties, milestone payments, ethnobotanical premiums, contract fees, and research budgets, each of which is discussed briefly in turn below.
The percentage rate is the other major consideration in negotiating royalty payments. The difficulty here is that there is not yet enough of a market to fix an established rate, but a range of 1-5 percent is currently in use.
Companies are often quite willing to invest in capacity-building, i.e., technology transfer and training, as it is in their interest to ensure that samples are handled properly. Support for capacity-building can come in various forms, such as by direct transfer of technologies, payments to support acquisition of tools or knowledge, support for training programs, joint research activities, and so on.
There should be inherent scientific benefits to the bioprospecting agreement, including provisions for the sharing of research information and other data, expanding the scope of species inventories and other types of ecosystem knowledge, et cetera. Improvements to the knowledge base can also contribute to the improvement of education at all levels. Another related benefit is the promotion of conservation itself. Indeed the scientific and educational effects may well turn out to be the primary benefit of the bioprospecting agreement, far outweighing any monetary gain.
Promise of Future Supply
The promise of future supply is a two-way benefit by which the company is guaranteed that the source material will continue to be available in the event that successful research results occur. This condition can be linked to the economic benefits and involve up-front or milestone payments, or both.
Negotiating an Agreement