WIPO's Historic Treaty on Genetic Resources and Traditional Knowledge: History, Context, Pros, and Cons!

The World Intellectual Property Organization (WIPO) recently concluded a landmark diplomatic conference, resulting in the adoption of a new international treaty aimed at enhancing the protection of genetic resources (GR), traditional knowledge (TK), and associated intellectual property rights. This significant event marked a culmination of over a decade of negotiations and discussions among WIPO member states, indigenous communities, and various stakeholders.

Historical Context

The journey towards this treaty began in the early 2000s, as the international community recognized the need for stronger protections for genetic resources and traditional knowledge. The increasing commercialization of these resources raised concerns about their misappropriation and the need for equitable benefit-sharing. In 2000, the WIPO General Assembly established the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC), tasked with addressing these complex issues.?

Over the years, the IGC held numerous sessions to explore potential frameworks and draft provisions. The work was slow and often contentious, reflecting the diverse interests and priorities of member states and stakeholders. Key milestones included the development of draft articles and the gradual convergence on core principles such as prior informed consent, mutually agreed terms, and mandatory disclosure of the source of genetic resources and traditional knowledge.?

The momentum for a formal treaty gained significant traction in the 2010s, driven by growing advocacy from indigenous communities and increasing recognition of the value of traditional knowledge in sustainable development. In 2021, WIPO member states agreed to convene a diplomatic conference to finalize and adopt the treaty, setting the stage for the intensive negotiations that culminated in its adoption in 2024.

Objectives and Scope of the Treaty

The newly adopted treaty seeks to address critical issues related to the misappropriation and misuse of genetic resources and traditional knowledge. It aims to:

- Ensure that benefits arising from the use of genetic resources are shared fairly and equitably.

- Recognize and protect the rights of indigenous peoples and local communities over their traditional knowledge.

- Establish clear guidelines for access to genetic resources and associated traditional knowledge.

- Promote the conservation and sustainable use of biodiversity.

Key Provisions

The treaty introduces several key provisions, including:

1. Prior Informed Consent (PIC): Mandates that users of genetic resources and traditional knowledge obtain prior informed consent from the rightful custodians before accessing or utilizing such resources.

2. Mutually Agreed Terms (MAT): Requires that any access to genetic resources and traditional knowledge is based on mutually agreed terms, ensuring fair and equitable benefit-sharing.

3. Disclosure Requirements: Obligates patent applicants to disclose the source of the genetic resources (GR) and traditional knowledge (TK) used in their inventions. This includes:

?? - Genetic Resources: When a claimed invention is based on a GR, the applicant must disclose the country of origin of the GR.

?? - Traditional Knowledge: When an invention is based on associated TK, the applicant must disclose the indigenous people or local community from which the TK was obtained.

????If the specific sources are not available, the applicant must provide any other source of the GRs or TKs they have accessed. If even this information is unavailable, the applicant can make a declaration affirming that the information provided is true to the best of their knowledge. This three-tier approach aims to enhance transparency while offering some flexibility to applicants (Articles 3.1(b) and 3.2(b) in conjunction with Article 2).

4. Benefit-Sharing Mechanisms: Establishes mechanisms for the distribution of monetary and non-monetary benefits derived from the utilization of genetic resources and traditional knowledge, ensuring that benefits reach the communities that have preserved and developed these resources.

Challenges of Partial Disclosure

One of the significant challenges identified during the negotiations is the issue of partial disclosure. The treaty requires applicants to disclose the source of genetic resources and associated traditional knowledge, but there are provisions allowing flexibility if the specific sources are not known. This can lead to several potential issues:

- Verification Difficulties: Patent offices may find it challenging to verify the accuracy of the provided information, especially when applicants make declarations based on their best knowledge without concrete evidence. This can undermine the intent of the disclosure requirement and make it difficult to ensure that benefits are appropriately shared with the rightful custodians.

- Fraudulent Intent: While the treaty stipulates that patents cannot be revoked solely for non-disclosure, except in cases of fraudulent intent, determining such intent can be highly complex. Patent offices are not mandated to verify the authenticity of the disclosures, raising concerns about how effectively fraudulent intent can be identified and proven.

- Impact on Developing Nations: Countries with less robust patent examination infrastructures may struggle to enforce these provisions, potentially leading to increased misappropriation of genetic resources and traditional knowledge. This could disproportionately affect developing nations and indigenous communities, who might not have the resources to challenge erroneous or incomplete disclosures.

- Synthetic Biology: As synthetic biology and biotechnologies advance, the origins of genetic materials used in inventions may become increasingly obscure. This raises questions about how the treaty's provisions will apply to synthetic biology inventions, where the genetic materials are often highly modified or synthesized from multiple sources, complicating the disclosure process.

Impact on Indigenous Communities

Indigenous communities worldwide have long advocated for stronger protections of their traditional knowledge and genetic resources. The treaty’s adoption is seen as a significant victory for these communities, as it acknowledges their contributions to global biodiversity and ensures they receive a fair share of the benefits arising from the commercial use of their resources.

During the conference, representatives from various indigenous groups highlighted the importance of safeguarding their cultural heritage and ensuring that their traditional knowledge is respected and preserved for future generations. The treaty's provisions on prior informed consent and benefit-sharing are particularly crucial in empowering these communities and enhancing their role in the global intellectual property framework.

International Response

The treaty has garnered widespread support from various countries and international organizations. Many see it as a crucial step toward achieving greater equity and fairness in the global intellectual property system. The Director-General of WIPO, Daren Tang, lauded the treaty as a milestone in international cooperation, emphasizing its role in promoting sustainable development and protecting the rights of indigenous peoples.

However, some challenges remain in the treaty's implementation. Ensuring that all member states adhere to the new requirements and effectively integrate them into their national laws will be a complex task. Additionally, there are concerns about the capacity of some countries, particularly developing nations, to enforce these provisions and protect the rights of indigenous communities adequately.

Indian Perspective and Patent Law

India, home to rich biodiversity and a vast repository of traditional knowledge, has been a vocal advocate for the protection of genetic resources and traditional knowledge at international forums. The adoption of this treaty by WIPO holds significant implications for India, particularly concerning its existing patent laws.?

India's Patent Act includes robust provisions aimed at preventing the misappropriation of genetic resources and traditional knowledge:?

Section 25(1)(j): Allows for pre-grant opposition if the applicant fails to disclose the source of origin of biological material used in the invention.

Section 64(1)(p): Permits the revocation of a patent if there is non-disclosure or wrongful disclosure of the source or geographical origin of biological material.

The new WIPO treaty introduces a more flexible approach to disclosure, which may require India to amend its patent laws to align with the treaty’s provisions. This could potentially dilute India's stringent requirements, as the treaty stipulates that patents cannot be revoked for non-disclosure unless it is proven to be fraudulent.?

For India, adapting to these new standards could pose challenges:?

Increased Patent Applications: With the relaxation of disclosure requirements, India might see a surge in patent applications, particularly from countries with advanced biotechnological industries.

Protection of Indigenous Knowledge: Ensuring that the traditional knowledge of indigenous communities is adequately protected and that benefits are fairly shared will require vigilant enforcement and possibly new legislative measures.

Balancing Flexibility and Stringency: India will need to strike a balance between adhering to international standards and maintaining stringent safeguards against the misappropriation of its rich genetic and traditional knowledge resources.

Looking Ahead

The adoption of the treaty marks the beginning of a new era in the protection of genetic resources and traditional knowledge. As WIPO and its member states move forward with the treaty’s implementation, ongoing dialogue and cooperation will be essential to address any emerging challenges and ensure that the treaty’s objectives are fully realized.

In the coming months, WIPO plans to organize a series of workshops and capacity-building programs to assist member states in implementing the treaty. These initiatives will focus on developing national legislation, enhancing the capacity of relevant authorities, and raising awareness about the treaty's provisions among stakeholders.

The successful conclusion of the diplomatic conference and the adoption of this groundbreaking treaty represent a significant step forward in the global effort to recognize and protect the invaluable contributions of indigenous communities to our shared cultural and natural heritage.