Madagascar: biodiversity and patent rights
Madagascar is an island country in East Africa, located in the Indian Ocean. Due to the island’s long isolation from neighboring continents, Madagascar is home to various plants and animals not found anywhere else on Earth, therefore being considered a biodiversity hotspot.
Due to its abundant and diverse natural resources, the island’s economy is based on agriculture, mining, fishing, tourism and textiles. Yet the rapid growth of the human population, poor soil management (due to inappropriate traditional agricultural practices), illegal logging and other environmental threats have placed Madagascar among the poorest countries in the world.
In this context, several national and international attempts to control and manage the sustainable use and mutual benefit of Madagascar’s economically valuable natural resources, as well as to encourage the entry of foreign investment into the country, are put into practice.
So, given the role of patent activity in overall innovation and economic growth, is it possible, at the same time, to protect Madagascar’s biodiversity and grant patent rights?
Intellectual property rights in Madagascar
Madagascar was a French colony from 1897 to 1960 and as a result, the island developed political, economic and cultural ties with the French-speaking countries of West Africa.
After their independence from France, Madagascar and twelve other African states signed the Libreville Agreement (1962), which established a uniform regime for the protection of industrial property and created the African and Malagasy Office for Industrial Property ( OAMPI). This authority was responsible for administrative procedures common to all thirteen Member States in the area of industrial property rights.
Following the effective termination of this agreement in 1976, a legal and administrative vacuum existed in the region. Thus, after numerous bills, an industrial property protection regime in Madagascar was promulgated in 1989 and, in 1992, the Malagasy Industrial Property Office (OMAPI) was created and organized.
Today, OMAPI is the authority responsible for receiving and registering all acts relating to industrial property rights, including the examination and issuance of patents, inventors’ certificates , trademarks, trade names and industrial designs.
In terms of copyrights and copyrights, the Malagasy Copyright Office (OMDA), created in 1984, is the only organization allowed to operate on the island in terms of scientific, literary and artistic.
Patent protection in Madagascar
Madagascar is a member state of the Paris Convention and the Patent Cooperation Treaty (PCT), thus, protection for an invention is available through a national filing, or a national phase application based on an international application.
For an invention to be patented in Madagascar, it must be new, inventive (that is to say not obvious to a person skilled in the art) and it must be capable of industrial application. Patent applications are first subjected to formal examination and substantive examination is only carried out where an international preliminary examination report has been established. Otherwise, the examination is limited to determining whether the invention belongs to a field for which a patent cannot be granted and whether the application includes a description and claims established in accordance with the requirements of national law.
In Madagascar, patents are granted for inventions and additional certificates. As regards the time limit, the protection granted to a patent is fifteen years from the date of filing of the application. However, an additional five years can be granted on request.
Even though the Malagasy authorities are responsible for protecting patent holders against counterfeiting, opposition to a patent application cannot be raised during prosecution and the enforcement capacity is quite limited due to resource constraints (such as than poor digitization) and a weak and ill-prepared judiciary. system.
According to data provided by the World Intellectual Property Organization (WIPO), patent activity in Madagascar is low and the majority of applications are filed by non-residents (406 applications over the past 10 years, over a period of total of 459 applications filed). Despite this, the number of patent applications filed by residents has been slowly increasing since 2015.
Regarding the patent documents of Malagasy applicants obtained from Espacenet, nearly 30% of them relate to inventions classified in the international patent classification A61 (medical or veterinary science and hygiene) – a third of them they are specifically linked to preparations containing algae material (in Madagascar, the characteristics of the sea, the depth of the water and the movement of swells and waves provide good conditions for algaculture).
“Patent protection is vital to generate a return on the investments made in research and development in the face of competition. On the other hand, patents give their owners the right to refuse access to commercial exploitation by third parties without authorization.
Biodiversity and patent rights
In terms of biodiversity and intellectual property rights, it is important to consider two international agreements, to which Madagascar is a signatory: the Agreement on Trade Aspects of Intellectual Property Rights (TRIPS) of the World Trade Organization (WTO) and the Nagoya Accord. Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the Convention on Biological Diversity (CBD), published 20 years later.
The TRIPS Agreement, dated 1994, provided common ground rules on how to protect intellectual property, with the aim of ensuring that minimum standards of protection exist in all WTO member states. These minimum standards should be incorporated into national legislation, for example by extending protection to all inventions in all fields of technology without discrimination.
Although the TRIPS Agreement marked a new era of intellectual property obligations, the least developed countries of the WTO (LDCs, such as Madagascar) have benefited from a transition period to comply with all the necessary requirements. This transitional period was initially eleven years with the possibility of extension upon duly substantiated request. It is now on its third extension (which is due in 2034 or until a member ceases to be an LDC, whichever comes first).
The CBD was the first attempt by the international community to address biodiversity (its conservation, sustainable use, and the fair and equitable sharing of benefits arising from its genetic resources) in a global legal instrument.
In this context, the Nagoya Protocol emerged in 2014 as an instrument that establishes a framework to regulate how users of genetic resources and / or traditional knowledge associated with genetic resources can access them and provides general obligations on sharing. the benefits arising from the use of these resources and knowledge.
It is important to stress that the TRIPS Agreement was not conceived as a treaty inherently promoting the objectives of the CBD. With regard to patents, for example, WTO Members can define the respective patentability criteria of novelty, inventive step and industrial application in the light of their political priorities and needs.
TRIPS Agreement allows countries to exclude substances that exist in nature, such as plants and microorganisms in itself, patentability. At the same time, however, countries are not allowed to ban the “patent of life” altogether. With regard to plants, when they are not protected by a patent, a sui generis a protection system must be provided. With regard to microorganisms, certain genetic changes must have taken place for a microorganism to be patentable.
Thus, discussions are underway on the need to amend the TRIPS Agreement to ensure that the two treaties are implemented in a complementary manner.
Madagascar vanilla case
Vanilla is the second most valuable spice in the world (after saffron) and, like good wine, its grains vary in flavor and aroma depending on where they are grown and the climatic conditions. Its time-consuming and labor-intensive cultivation process requires manual pollination and post-harvest in several stages, which makes vanilla a high-value crop.
Due to its agro-ecological conditions, Madagascar vanilla is considered the world benchmark for quality and up to eighty percent of all vanilla comes from the island. Thus, to promote the long-term stable supply of high quality natural vanilla in an economically and environmentally sustainable manner, several programs and initiatives are being implemented.
When analyzing large-scale vanilla production in Madagascar, one point to increase and improve breeding is to provide farmers with high-value and productive germplasm. From the perspective of patent protection, Malagasy law excludes plants and their parts from patentability.
In addition, although the TRIPS Agreement requires a WTO member to choose the intellectual property regime applicable to plant varieties, there is to date no legislative provision regarding plant breeders’ rights or plant variety rights. others sui generis plant protection in Madagascar.
It is important to note that apart from plants, pharmaceutical, veterinary, cosmetic and food products are also excluded from protection under Malagasy patent law and that a favorable environment should be created in the form of incentives and legal protection to stimulate agriculture productivity and investment.
Patent protection is vital to generate a return on the investments made in research and development in the face of competition. On the other hand, patents give their owners the right to refuse access to commercial exploitation by third parties without authorization.
Nature is the most important source of new and useful products to meet current and future challenges and it is fundamental to explore natural resources to seek innovation. Thus, patent applications based on natural resources must ensure that the fruits of exploitation benefit everyone. In the case of Madagascar, patent law (and the intellectual property system as a whole) should be reviewed for this purpose.
This article originally appeared in The Trademark Lawyer (Issue Sep / Oct – 2021)