Following more than two decades of negotiation, WIPO member states have inked the first-of-its-kind international treaty addressing the connection between "Intellectual Property, Genetic Resources, and Associated Traditional Knowledge," a treaty that includes specific provisions addressing property rights of native peoples and local communities. The new treaty aims to make the patent system, particularly as it relates to life sciences, more transparent, with the aim of preventing the following assets of native peoples and essential parts of their native cultures from being improperly exploited by patent holders:
- Genetic resources (i.e., animal, plant, and microbial species of economic, scientific, social, or environmental value)
- Traditional knowledge (i.e., all forms of cultural habits, beliefs, practices, innovations, and cultural expressions developed, transmitted, and preserved by traditional, indigenous, and local communities over generations)
PATENT APPLICANTS' OBLIGATIONS
Upon ratification by at least 15 treaty members, the treaty will enter into force and will, among other things, introduce a new disclosure requirement into international law for patent applicants whose inventions are based on genetic resources and/or associated traditional knowledge.
The treaty provides that, whenever a patent application
involving a genetic-resource or/and traditional knowledge-derived
technology is filed, the applicant will be required to inform the
country of origin of the genetic resources or traditional
knowledge.
However, the treaty will not be applied retroactively, and
accordingly, it will not impact patent applications filed before
its entry into force.
SIGNATORIES' OBLIGATIONS AND ABILITIES
Upon adoption of the treaty, its signatories:
- Must implement measures allowing applicants a chance to rectify any omissions, except in cases of confirmed fraudulent behavior or intent as stipulated by national legislation, which will also be sanctioned according to national legislation.
- Are also authorized to create databases containing genetic resources and any related traditional knowledge. These initiatives will be undertaken in consultation with native peoples, local communities, and other relevant stakeholders, while considering their respective national contexts.
ALREADY EXISTING OBLIGATIONS
Disclosure obligations concerning genetic resources (often coupled with associated traditional knowledge) have previously been enacted by over 30 countries, including Brazil, China, India, South Africa, Germany, France, Belgium, Spain, Sweden, Italy, and Switzerland.
For example, in Brazil, the subject, regulated by Federal Law No. 13,123/2015, has been overseen by the Brazilian Patent and Trademark Office (BPTO) since 2005, showcasing the country's avant-garde stance in protecting the fundamental rights at stake, only now embraced by WIPO. Brazil's preliminary office action no. 6.6.2 mandates patent applicants to disclose (i) the origin of genetic material and associated traditional knowledge, if applicable, along with (ii) the authorization number for access to such assets. It's worth noting that this stage of the administrative procedure comes with staying effects, thus suspending the start of the technical examination, making it impossible for applicants to not properly address the Agency's office action.
Visit us at mayerbrown.com
Mayer Brown is a global services provider comprising associated legal practices that are separate entities, including Mayer Brown LLP (Illinois, USA), Mayer Brown International LLP (England & Wales), Mayer Brown (a Hong Kong partnership) and Tauil & Chequer Advogados (a Brazilian law partnership) and non-legal service providers, which provide consultancy services (collectively, the "Mayer Brown Practices"). The Mayer Brown Practices are established in various jurisdictions and may be a legal person or a partnership. PK Wong & Nair LLC ("PKWN") is the constituent Singapore law practice of our licensed joint law venture in Singapore, Mayer Brown PK Wong & Nair Pte. Ltd. Details of the individual Mayer Brown Practices and PKWN can be found in the Legal Notices section of our website. "Mayer Brown" and the Mayer Brown logo are the trademarks of Mayer Brown.
© Copyright 2024. The Mayer Brown Practices. All rights reserved.
This Mayer Brown article provides information and comments on legal issues and developments of interest. The foregoing is not a comprehensive treatment of the subject matter covered and is not intended to provide legal advice. Readers should seek specific legal advice before taking any action with respect to the matters discussed herein.