On May 24, 2024, the World Intellectual Property Organization (WIPO) approved the Treaty on Intellectual Property, Genetic Resources, and Associated Traditional Knowledge during the Diplomatic Conference on Genetic Resources and Traditional Knowledge and Folklore. The primary focus of the treaty is the integration of genetic material originating from the traditional knowledge of Indigenous Peoples into patent applications. The negotiations for the Treaty began more than 20 years ago, in 2001, reflecting the strides made by the IP communities worldwide to acknowledge and safeguard Indigenous and traditional knowledge.
The Treaty is open to any member state of WIPO. Once the Treaty gets ratified by 15 member states, it will establish a comprehensive framework in international law, ensuring the mandatory disclosure of genetic resources and associated traditional knowledge in patent applications. An important point to note is that these obligations are not retroactive and do not apply to patent applications filed before the treaty’s entry into force.
Objectives of the Treaty
The primary objectives of the Treaty are to enhance the efficacy, transparency and quality of the patent system with regard to genetic resources and traditional knowledge associated with genetic resources. It also aims to prevent patents from being granted erroneously for inventions that are not novel or inventive with regard to genetic resources and traditional knowledge associated with genetic resources.
Key Definitions
Genetic Material
The Treaty defines “genetic material” as any material of plant, animal, microbial or other origin containing functional units of heredity.
Genetic Resources
Genetic resources mean genetic material of actual or potential value except for human genetic resources. The definition generally includes material, regardless of origin, containing functional units of heredity.
Source of Genetic Resources
It refers to any source from which the applicant has obtained the genetic resources, such as a research centre, gene bank, Indigenous Peoples and local communities, the Multilateral System of the International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA), or any other ex-situ collection or depository of genetic resources.
Based On
It means that the genetic resources and/or traditional knowledge associated with genetic resources must have been necessary for the claimed invention. The claimed invention must depend on the specific properties of the genetic resources and/or the traditional knowledge associated with genetic resources.
Source of Traditional Knowledge Associated with Genetic Resources
It means any source from which the applicant has obtained the traditional knowledge associated with genetic resources, such as scientific literature, publicly accessible databases, patent applications and patent publications.
Disclosure Requirement
The key provision is that each country must require patent applicants to disclose the country of origin whenever inventions are based on genetic resources or the source of such genetic resources when such origin is unknown.
When the claimed invention in a patent application is based on traditional knowledge, the country must disclose the Indigenous Peoples or local community who provided the traditional knowledge associated with genetic resources or the source of such traditional knowledge when such origin is unknown.
Sanctions and Remedies
The treaty indicates that each country should create legal, administrative, and/or policy measures to address a failure to provide the information required. Further, the country must provide an opportunity to rectify a failure to disclose the information required in Article 3 before implementing sanctions or directing remedies, except for cases where there has been fraudulent conduct or intent as prescribed by national law.
However, the treaty indicates that the law cannot “revoke, invalidate, or render unenforceable” an issued patent “solely on the basis of an applicant’s failure to disclose” absent additional evidence of “fraudulent conduct or intent.”
Information Systems and Relationship with Other Agreements
The treaty allows contracting parties to establish information systems (such as databases) of genetic resources and traditional knowledge associated with genetic resources, in consultation, where applicable, with Indigenous Peoples, local communities, and other stakeholders, taking into account their national circumstances.
These information systems should be accessible to patent offices for searching and examining patent applications. The country may also establish one or more technical working groups to address any matters relating to the information systems, such as accessibility to Offices with appropriate safeguards.
Effects of the Treaty
The treaty is specifically crafted to address the complexities and conflicts present within the intellectual property (IP) system when it comes to patents involving traditional knowledge. It aims to ensure that countries providing genetic resources and associated traditional knowledge receive the rightful recognition and fair compensation they deserve. Additionally, the treaty seeks to create a more comprehensive and inclusive IP system that takes into account the diverse requirements of all nations and their respective communities.
Numerous WIPO members have expressed their support for the Treaty, recognising it as a significant milestone that sets the stage for a more inclusive global framework. The Indian Government views the Treaty as a major victory for India and the nations of the Global South, marking a historic achievement in international relations and trade.
The treaty would fundamentally recognise and protect the rights of indigenous peoples over their traditional knowledge and genetic resources, ensuring that these communities receive fair and equitable compensation for the use of their traditional knowledge and resources by patent holders.
When it comes to increasing innovation and research, the treaty will provide legal certainty in the form of clear guidelines on ethical collaborations with Indigenous communities. These partnerships can lead to new scientific discoveries and technological advancements, particularly in sectors such as agriculture, medicine, and biotechnology, where traditional knowledge can offer invaluable insights.
In conclusion, the Treaty on Intellectual Property, Genetic Resources, and Associated Traditional Knowledge would be a pivotal tool in promoting sustainable development, fostering innovation, and ensuring social justice and economic equity for Indigenous communities while supporting ethical research practices and clearer patent application procedures involving such resources and traditional knowledge.
