Knobbe Martens
Jul 2, 2024

WIPO Member States Adopt New Treaty on Intellectual Property, Genetic Resources and Associated Traditional Knowledge

Written bySusan M. Janicki, Ph.D. & Agnes Juang, Ph.D.

On May 24, 2024, member states of the World Intellectual Property Organization (WIPO) adopted a new treaty on Intellectual Property, Genetic Resources and Associated Traditional Knowledge[1] that was over 20 years in the making.[2] Genetic resources, which can include medicinal plants, agriculture crops and animal breeds, cannot themselves be claimed as intellectual property. However, inventions developed using genetic resources can be protected, usually through patents. The stated goals of the treaty include enhancing the efficacy, transparency, and quality of the patent system and preventing patents from being granted erroneously for inventions that are not novel or inventive with regard to genetic resources and traditional knowledge.[3]

The treaty requires patent applicants, whose claimed inventions are based on genetic resources, to disclose the country of origin of the genetic resources or their source when the country of origin is not known.[4] Where the claimed invention is based on traditional knowledge, applicants are required to disclose the Indigenous Peoples or local community who provided the traditional knowledge.[5]  The treaty defines “based on” to mean that the genetic resources and/or traditional knowledge were necessary for the claimed invention and that the claimed invention depends on the specific properties of the genetic resources and/or traditional knowledge.[6] Applicants who do not have this information must make declarations to that effect.[7]

In terms of enforcement, each country will establish adequate legal and administrative and/or policy measures to address violations of these reporting requirements.[8] Notably, these obligations will not be imposed retroactively.[9] Additionally, patent granting offices in member countries are not obliged to verify the authenticity of the disclosures.[10] If applicants fail to disclose the required information, member countries are to provide them with an opportunity to rectify before implementing sanctions unless there is fraudulent conduct or intent.[11] The annulment of a granted patent is only possible in cases of proven bad faith by the applicant.[12]

The treaty aims to address concerns about “biopiracy,” or the use of traditional knowledge and genetic resources without consent from and benefit sharing with the Indigenous Peoples and local communities that were the source, while also ensuring continued innovation in the field of biotechnology.

Editor: Brenden S. Gingrich, Ph.D.

[2] https://www.wipo.int/pressroom/en/articles/2024/article_0007.html

[3] WIPO TREATY ON INTELLECTUAL PROPERTY, GENETIC RESOURCES AND ASSOCIATED TRADITIONAL KNOWLEDGE, Article 1, Objectives.

[4] Id., Article 3, Disclosure Requirement, 3.1.

[5] Id., Article 3, Disclosure Requirement, 3.2.

[6] Id., Article 2, List of Terms.

[7] Id., Article 3, Disclosure Requirement, 3.3.

[8] Id., Article 4, Sanctions and Remedies, 5.1.

[9] Id., Article 4, Non-Retroactivity.

[10] Id., Article 3, Disclosure Requirement, 3.5.

[11] Id., Article 5, Sanctions and Remedies, 5.2, 5.2(bis).

[12] Id., Article 5, Sanctions and Remedies, 5.3, 5.4.

 

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