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Benefit sharing revisited So the next question is how to link IPR back to the issue of benefit sharing and the Nagoya Protocol? The key point to note is that the knowledge and information that may be derived from marine genetic resources, and which is subject to IPR, will generally pass through a number of quite distinct stages of use, as it were, before any substantive economic benefits can be realised and shared. Of course there are many ways in which knowledge and information flow but to take a roughly typical example the following scenario may envisaged. Marine genetic resources are planned to be acquired in the EEZ of a third country, country A, during the course of a research cruise organised by research institutions from country B. The cruise is undertaken on a research vessel registered in country B and which therefore flies the flag of country B. Before the vessel can enter the waters of country A in order to commence marine scientific research, the prior informed consent of country A, as the coastal State, must be obtained in accordance with the requirements of UNCLOS as outlined in section 2.2.4 above. Such permission is usually negotiated and obtained at the diplomatic level between the two States concerned. At the same time, the person or research institution that will actually seek to acquire marine genetic resources from within the EEZ of country A during the course of the cruise, will need to conclude an ABS agreement with the organisation in country A that is formally authorised to do so (a research cruise may have a number of distinct activities apart from the collection of marine genetic resources, undertaken by different research bodies represented on board). It is to be hoped that the Nagoya Protocol procedure will streamline this process: experience pre-Nagoya suggests that even identifying the correct body in the provider country with whom to conclude an ABS agreement is difficult. Because of the high costs involved, the acquisition of marine genetic resources is typically publicly funded both in terms of the costs of mounting a research cruise and as regards the public research institution undertaking the work. Going back to the hypothetical scenario, the genetic resources are collected by a public research institute from country B and taken back to that country where they are placed in a bio-bank run by the institute. Further possible sub-scenarios may then arise. The research institute may begin the process of genomic analysis and placing the results in a database. It may also as part of the ABS agreement with country A provide all of the raw data to that country as well as, for example, training its scientists. Another researcher in country B may request some of the data in the database for research purposes (or may alternatively request a sample form the bio-bank on the basis of a material transfer agreement). The data (or the sample) may be provided on a free of charge basis through a licensing agreement that requires the open access to any research results and the recognition of the moral rights (in the case of a dataset) of the original laboratory. Where the situation starts to get complicated is where the knowledge and information supplied are used to claim patents either by the second laboratory or by an SME linked to it. Of course simply Study in support of Impact Assessment work on Blue Biotechnology 207

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