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Frequently Asked Questions

What is "bioproperty"?

Bioproperty is any biological material, including whole organisms and their parts and byproducts, including tissues, cells, and molecules that are, could, or should be controlled by a government, indigenous group, research institution, commercial entity or person. Bioproperty can also include populations of animals (such as a herd, flock, or collection as in zoos and aquaria) or plants (an orchard, nursery, bag of seed, or vials of tissue culture). Bioproperty resources are often unrecognized as vital, perhaps critical, aspects of our everyday lives.

What is the difference between genetic resources (“GR”) and bioproperty?

Genetic resources (“GR”) refer to the fundamental genetic basis of any living creature. GR is primarily concerned with access, possession, and use of the genes (i.e., DNA) of a particular plant, animal, or microbe. Bioproperty is a much more expansive definition of biological matter. Of course, Bioproperty includes the genetics (DNA) of an organism, but also any tangible aspect of the organism. Some inventions can, have been, and will be made which have nothing to do with DNA. For example, possessing a piece of shark skin may allow a researcher to make an invention based on the skin design. This has actually already happened – shark skin is the basis for new materials that are hydrodynamically streamlined for swimming suits, boats, and submersibles; the “sticky” feet of gecko lizards inspired inventors to create a new (and patentable) type of adhesive system, like Velcro.

How do you "own" or "control" bioproperty?

Bioproperty is tangible matter and as such, bioproperty is often, but not always, alive. Being tangible, and depending upon one’s outlook, bioproperty falls under the property rules of "personal property" law, and can be owned, used, sold, leased, loaned, and otherwise controlled by an owner. There are several way to show ownership of bioproperty, including: (1) possessing a physical biological specimen free of any disputed ownership or other property claim by another party; (2) the exertion of governmental and other sovereign rights over biological specimens through laws; (3) contracts that expressly loan the bioproperty to a non-owner; (4) traditional ownership documents such as dog, horse, and other livestock registrations; (5) branding of the specimen such as with cattle on the open range. The critical characteristic of bioproperty ownership is the right to control possession and use of the biological matter.

Why is bioproperty important?

Owning and controlling bioproperty is important to any company, government agency, individual, or non-governmental organization that has a goal to manage bioproperty for commercial, conservation, or research purposes. It is essential that bioproperty be properly controlled in order to effectively capture value, assure conservation, or realize the ethical use of the bioproperty.

Does bioproperty involve patents or other intellectual property (IP)?

Sometimes. Bioproperty may overlap with patents or other IP such as Plant Breeder's Rights. When IP, such as a patent, covers a biological material, that material is simultaneously covered by both IP law and personal property law. This overlapping of property law in the same material creates complexity of the "property control" position. The property control position comprises all the legally available ownership rights and must be considered, regardless of the goals of the owner, whether those goals involve profits, conservation, or public-sponsored research, or any combination of these.

Can bioproperty be commercialized without any IP?

Yes. Bioproperty by itself can be bought and sold, rented, or loaned with as many property rights "strings" attached as the owner desires. Often, bioproperty is managed using personal property tools before any IP arises from the use of that bioproperty. It is critical for bioproperty owners and caretakers to correctly exercise their personal property rights in order to preserve their ownership rights in the bioproperty.

Does successful bioproperty management require specialized expertise?

Yes. While there are many professionals who understand IP, there are many fewer who know how to manage bioproperty in commercial, conservation, and research situations. In our collective experience of more than 50 years in managing technology, we have found very few professionals who fully understand the important relationship between bioproperty and IP. Unfortunately, this lack of understanding has led to many instances of bioproperty mismanagement that has prohibited the capture of bioproperty invention value or the successful conservation of biodiversity.

Does the BioProperty Strategy Group, Inc. (“BPSG”) have unique expertise?

Yes. BPSG is unique in its understanding of the link between bioproperty and IP and the critical implications of that linkage. Furthermore, that special understanding provides the basis for exceptional consulting advice and counsel.

Does BioProperty Strategy Group, Inc. have expertise in other areas?

Yes. BPSG has significant experience and expertise in the skills required for new technology management and commercialization, including invention evaluation, IP management, commercialization strategy, partnership design and management, license negotiation, contract drafting, technology valuation, new venture creation and funding. We have over 50 years of collective experience in IP management, commercialization and conservation.

When is technology valuation important?

Technology (also includes patent and other IP) valuation is essential for making IP management decisions, negotiating licensing and sale contracts, facilitating mergers and acquisitions, and for patent litigation. Technology/ IP valuation is also critical to successfully negotiate agreements for biodiversity access and benefit sharing.

Does BioProperty Strategy Group create companies around new technology?

Yes, BPSG has the experience and expertise to structure and establish new ventures, including all corporate documents, shareholder agreements, etc. Our professionals can assist in new venture creation on a simple fee basis and/or by receiving a share of equity in the new company.

Are there special agreements/ contracts that are frequently used in the context of bioproperty ownership, commercialization, disposition and use?

Yes, there are several important types of agreements/ contracts that govern the ownership, commercialization, disposition and use of bioproperty. Licenses, bonds, barters, exchanges, sharings, lendings, bailments, transfers, are all commonly used by bioproperty professionals to commercialize and manage bioproperty. Sales agreements/ contracts are sometimes useful as well, depending upon the intended duration of the transactions.

What is a “Material Transfer Agreement”?

A Material Transfer Agreement, also called an “MTA” is a type of bailment contract in which an owner of material allows another party to possess the material but does not give up ownership. While this is the basic provision of an MTA, these contracts can have numerous other terms and conditions. BPSG professionals have negotiated and managed many hundreds of MTAs.

What is a “Biological Material Transfer Agreement”?

type. It may be for the transfer of possession of a collection of whole organisms (e.g., a colony of animals or lines of a crop plant), a single organism, propagules of the organism (e.g., eggs and seeds) or its parts, tissues, byproducts (e.g., feathers, bark), or molecules (including genes – DNA). BPSG professionals have negotiated and managed many hundreds of BMTAs.

What is a “bailment”?

A bailment is a contract, either written or implied, in which a true owner of tangible property grants the right to possess that property to another, but retains ownership. In everyday life, bailments are used when a car is left with a mechanic or clothes are taken to a dry-cleaner. Bailments can be simple or complicated. They are very important to bioproperty owners as they protect the owners ownership rights while allowing others to possess the bioproperty for research, invention, display, or any other purpose.