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Can bird flu strains be "owned"?

Wednesday, February 7, 2007

Indonesia delayed the transfer of bird flu strains to WHO after an aussie company developed a vaccine out of it:
The Indonesian Government says Australian company CSL should have sought its permission to develop a bird flu vaccine using the Indonesian strain of the H5N1 virus. But news this week that the Australian pharmaceuticals company CSL had developed a vaccine against the H5N1 bird flu virus was met with alarm by Indonesian Health Minister Siti Fadillah Supari. She says Indonesia is seeking intellectual property rights over the Indonesian strain of the virus on which the vaccine is based.

If the case is about some Indonesian plants or animals, I am certain that there could be some protection granted by one of intellectual property treaties currently in force -- if Indonesia is a party to the treaty. However, I don't think it is the case when virus is involved. I don't think bird flu strains per se can be subjected to IPR protection. If, on the other hand, someone decode the strains, they might be able to obtain IPR protection. The code could be protected but the sample cannot!

NY Times said:
A spokeswoman for Indonesia’s Health Ministry told Reuters yesterday that the country “cannot share samples for free.” “There should be rules of the game for it,” said the spokeswoman, Lily Sulistyowati. “Just imagine, they could research, use and patent the Indonesia strain.” The Financial Times reported the move by Indonesia yesterday; the country has not released a flu sample since late last year.

True, they can obtain IPR protection from it. But the strain itself is noneother but a raw information. What the law gives is the protection after the information is processed.

While there may not be any case for IPR protection toward bird flu strain, holding the sample from being released is a legal thing. But, what would be the benefit for Indonesia?