Written by León Lanis V., Paralegal
Very recently, member States of the World Intellectual Property Organization (WIPO) (the UN’s leading IP agency) adopted its first international treaty since 1996. This groundbreaking accord tackles issues relating to genetic resources and associated traditional knowledge.
The idea behind these new provisions on genetic resources and traditional knowledge is to enhance the member country’s abilities to cover such matters in patents, whilst also protecting the sources of such inventions. In broader terms, the convention in which this new treaty was drafted, voted and put into force wanted to enhance coverage in order to prevent and penalise the so-called “Bio-Piracy”.
WHAT IS BIO-PIRACY?
Bio-Piracy is the act in which a company or person (willing or unwillingly) lifts traditional or genetic resourced based knowledge to patent it, holding the coverage of such inventions as its own, preventing indigenous cultures, which have been using such techniques or concepts for many years, from exploiting the patented property.
Some real-life examples of ‘Bio-Piracy’ are the patenting of ‘neem trees’ as pesticides by U.S. Companies, which prevented indigenous Indian cultures from using neem trees as pesticides, which they had previously been using for millennia. Another example, was the patenting of basmati and jasmine rice cultivation, whereby companies patented techniques that were in prior use by traditional cultures for the harvesting of the rice, preventing these cultures from using their knowledge for such purposes.
In order to ensure that companies can still exploit and patent the techniques but without excluding traditional culture or creating malicious concealment of the source of such knowledge, the companies must disclose to IP agencies the source of the knowledge or technique.
CONSISTENCY WITH OTHER INTERNATIONAL TREATIES
In 2010, the Convention on Biological Diversity -a biological conservation organisation part of the UN- put into force a new protocol known as the “Nagoya Protocol”, under which “users” of a genetic resource and/or traditional knowledge must obtain permission from the “providers”. In this matter, users being those that benefit from the usage of such resources and providers those from which the traditional knowledge or genetic resource is sourced from.
The problem with the Nagoya Protocol is that it merely covered the business process of dealing with traditional knowledge or genetic resources, thus, the UN -specifically WIPO- sought to create a better coverage under the scheme of patents and general intellectual property
DISCLOSURE
The main measure that the treaty creates is the disclosure of sources. This means that any company seeking to patent any technique, technology or any other coverage that may trigger the provisions of this treaty, must fully disclose the origins of the knowledge or genetic resource, and as well count with the consent from the provider of the knowledge, in line with the Nagoya Protocol.
The part of the treaty that was heavily discussed during the sessions at WIPO were on the penalisation of not following these provisions. The U.S., South Korea and Japan were the main critics of establishing penalisations, as in their point of view it was a great detractor of innovation. Many countries, mainly from Latin America and Africa, were the main regions to argue in favour of penalties, arguing that not having such provisions would mean the treaty is not practically enforceable.
DATABASES
One of the most interesting provisions of the treaty is that member countries of WIPO must maintain public databases of indigenous traditional knowledge and genetic resources, which will serve as a directory for IP agencies to effectively cover such matters.
This measure was strongly supported by Australia, which was the first country to provide coverage to such matters with the Indigenous Knowledge Initiative under Australia IP. It is very likely that Australia will serve as the main negotiator of these matters in further negotiations at WIPO.
COMPLIANCE: HOW TO KNOW IF YOUR COMPANY TRIGGERS THE NEW TREATY
Although the treaty does not specify the fines or possible sanctions from non-compliant companies, it is very likely that signatory countries might act and establish their own fines in the near future. It is very important to know how to prevent such measures:
- Tracing: tracing means that your company has full knowledge of where the patented products, techniques or overall knowledge comes from. This includes knowing if you are employing any traditional knowledge or genetic resource. As mentioned, disclosure of such matters is the main matter of this treaty.
- Consent management: having robust written consents from the indigenous tribes -which are lending the traditional knowledge or resources- which can fully and unequivocally ensure that they are consenting such usage.
- Stakeholder consultation and negotiation: in par with the aforementioned, it can be very helpful to enhance the company’s culture of consultation and negotiation with indigenous tribes in order to check the overlap of traditional knowledge or genetic resources with your company’s patents but as well avoid conflicts with the providers of such resources.
- Internal policies: as with almost every compliance matter, having robust internal policies and procedures may avoid triggering the penalties and non-compliance of such treaties and local laws.
CONCLUSION
The adoption of the new international treaty on intellectual property by WIPO marks a significant step forward in the protection of genetic resources and associated traditional knowledge. This treaty not only addresses the issue of Bio-Piracy but also ensures that the benefits derived from such resources are fairly shared with the indigenous communities that have preserved and used them for generations. By requiring the disclosure of the origins of knowledge and resources, the treaty promotes transparency and ethical practices in the patenting process.
While the debate over penalties for non-compliance highlights differing perspectives on innovation and enforcement, the treaty ultimately aims to balance the interests of both innovators and traditional knowledge holders. As individual countries implement this treaty, it is crucial for companies to stay informed and proactive in their compliance efforts to avoid potential sanctions and contribute positively to the preservation of global cultural and genetic heritage.
In conclusion, this treaty represents a landmark achievement in the field of intellectual property, setting a precedent for future international agreements. It underscores the importance of respecting and protecting traditional knowledge while fostering innovation and equitable sharing of benefits. As the global community moves forward, the principles enshrined in this treaty will play a vital role in shaping a more inclusive and sustainable approach to intellectual property rights.
