The first Treaty on genetic resources and associated traditional knowledge of Indigenous People and local communities was adopted last week at the Diplomatic Conference organised by WIPO.
After almost 25 years of work, the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklre (IGC) has adopted the first treaty that aims to protect genetic resources and traditional knowledge associated with genetic resources within the patent system, increasing its quality and transparency without hindering innovation.
To this end, there is a disclosure requirement (Art.3) for patent applications based on genetic resources or traditional knowledge. Where the claimed invention is based on genetic resources, the applicant must disclose the country of origin of the genetic resources; and where the claimed invention is based on traditional knowledge associated with genetic resources, the Indigenous Peoples or local community that provided the traditional knowledge must be disclosed. Where this is not known, the source of the genetic resources or associated traditional knowledge should be indicated. And, in cases where the applicant is unaware of the source of the genetic resources or traditional knowledge, a statement to this effect should be made, affirming that the contents of the statement are true and correct to the best of the applicant’s knowledge.
About the consequences of non-compliance with the disclosure requirement, it is stated that the Contracting Parties shall provide for an opportunity to rectify. It also provides that Contracting Parties may establish appropriate, effective and proportionate legal, administrative and/or policy measures to address such breaches, including the possibility to exclude the opportunity for rectification where there is fraudulent conduct or intent in accordance with national law.
However, these possible measures or sanctions are limited in that in no case can the acquired patent right be revoked or invalidated if the disclosure requirement is not complied with. At the same time, the nature of these sanctions remains to be seen, as the legitimacy to measure the damage caused to a third sovereign State or indigenous community, as well as the form of reparation, is debatable.
It is difficult to imagine an effective and appropriate implementation of this new Treaty without further development of its essential aspects, which is why Art.10 provides for the creation of an Assembly in charge of its development, review and possible amendments.
On the other hand, the implementation of information systems (Art.6) is an essential element for the Offices of the Contracting Parties to have direct access in the search and examination of patent applications, thus avoiding the undue exploitation of genetic resources or associated traditional knowledge in patents that do not present the required inventiveness or novelty.
The Treaty, which will enter into force once it has been ratified by 15 Contracting Parties, is a milestone in the protection of genetic resources and traditional knowledge, despite the criticisms that can be made. It is also a success for WIPO and a further demonstration of its multilateralism and the negotiating and consensus-building vocation that exists within the intellectual property at the international level.
Jorge Díaz Rodríguez
