A Patent Licensing Regime for the Development and Protection of the Area’s Resources

Under the United Nations Convention on the Law of the Sea (UNCLOS), the international seabed area (Area) and its resources are the common heritage of humanity (CHH). Patent rights can be incompatible with the CHH doctrine and its underlying principles because patent holders might charge unjustifiably high prices to license patented technology for exploring and exploiting the Area’s resources (creating a "patent holdup" situation), might choose not to license, or might license exclusively when doing so would contravene CHH principles. However, a reasonable patent licensing regime can contribute to sharing the benefits derived from the Area and promote environmental sustainability. Provisions of the UNCLOS that stipulated compulsory technology and financial transfers were removed in the 1994 Agreement relating to the Implementation of Part XI of the UNCLOS (1994 Agreement), but to promote equity and sustainability I propose a voluntary licensing regime modeled on the concept of reasonable and non-discriminatory patent licensing (RAND) that has been used in other contexts. The International Seabed Authority (ISA) or another entity will need to coordinate and promote this licensing regime through governance of intellectual property (IP) derived from the Area. This proposed approach can better effectuate the CHH doctrine and its underlying principles.