New Groundbreaking, WIPO Treaty On IP And Traditional Knowledge

Introduction

The World Intellectual Property Organization (WIPO), on May 24, 2024, adopted the historic new treaty on Intellectual Property (IP), Genetic Resources and Traditional Knowledge¹. The Treaty was adopted after 25 years of dialogue and negotiations taking place since 2001. This adopted treaty is not only the first of its kind that addresses the interface existing between IP, Genetic Resources, and Traditional Knowledge but also includes provisions that specifically deal with the traditional knowledge and genetic resources held by indigenous people as well as local communities.²

Highlights of the Treaty

• Objective
• As enshrined under Article 1, the main objectives of the newly adopted treaty are to:
• 1. Enhance the efficacy, transparency, and quality of the patent system with respect to genetic resources and traditional knowledge associated with genetic resources, and
  2. prevent erroneous grant of patent protection to inventions that lack Novelty or inventive steps with respect to genetic resources and traditional knowledge associated with genetic resources.
• Disclosure Requirement for invention based on genetic resource and Traditional Knowledge
• Article 3.1 of the Treaty states that where the claimed invention in a patent application is based on genetic resources, then each contracting parties should require applicants to disclose
• 1. The country of origin of the genetic resources
  2. In case the applicant does not have information required under Article 3.1 (a) or Article 3.1(b) is not required, then the source of genetic resources is to be disclosed
• Article 3.2 of the Treaty provides that where the invention is based on traditional knowledge associated with genetic resources, then each contracting party should require applicants to disclose
• 1. Indigenous people or local communities who provided such traditional knowledge associated with genetic resources
  2. In case the applicant does not have the information required under Article 3.2(a) or Article 3.2 (b) is not required, then the source of traditional knowledge associated with genetic resources is to be disclosed.
• Moreover, Article 3.3 states that wherein no information under Article 3.1 and Article 3.2 is known to the applicant then the contracting parties shall require the applicant to make a declaration to that effect, affirming that the content of the declaration is true and correct to the best knowledge of the applicant.
• Sanctions and Remedies
• Article 5.1 of the treaty states that each contracting party should put appropriate, effective, and proportionate legal, and administrative policy measures to address the failure to provide information by the applicant under Article 3.
• Information Systems
• Article 6.1 of the treaty states that Contracting Parties may establish information systems (such as databases) of genetic resources and traditional knowledge associated with genetic resources, in consultation, where applicable, with Indigenous Peoples local communities, and other stakeholders, taking into account their national circumstances.
• Article 6.2 of the treaty states that the contracting party should (with appropriate safeguards and consultations with the indigenous people, local communities, and stakeholders) make such information system accessible to Offices for Patent search and examination.
• General Principles on Implementation
• Article 9.1 states that Contracting Parties undertake to adopt the measures necessary to ensure the application of this Treaty.
• Article 9.2 provides that nothing shall prevent Contracting Parties from implementing the provisions of this Treaty within their legal systems and practices.
• Entry in Force
• Article 17 states that the newly adopted Treaty shall enter into force three months after 15 eligible parties have deposited their instruments of ratification or accession.

What does it mean for India and Global South?

According to the recent PIB Press Release by the Ministry of Commerce & Industry, the adoption of the recent WIPO treaty is a big win for countries coming under Global South and India, which are known to be the hot-spot of biodiversity and Traditional Knowledge. Adding to its statement the Ministry of Commerce & Industry also stated that once the Treaty is ratified and is in force, it would require "contracting parties to make mandatory disclosure obligations for patent applicants to disclose the country of origin or source of the genetic resources when the claimed invention is based on genetic resources or associated traditional knowledge which will offer added protection to Indian Genetic Resources and Traditional Knowledge, which while currently protected in India are prone to misappropriation in countries, which do not have disclosure of obligations. Therefore, by creating global standards on disclosure of origin obligations, this treaty creates an unprecedented framework within the IP system for provider countries of Genetic resources and associated traditional knowledge".³

Amendment of the Patent Act, 1970

While the Indian law protects against the misappropriation of Traditional Knowledge the "mandatory disclosure" requirement mentioned in the new WIPO Treaty will ensure the protection of Traditional Knowledge across the globe i.e. even in countries that do not have laws in place to protect Traditional Knowledge.

The Department for Promotion of Industry and Internal Trade (DPIIT) while seeking cabinet nod for signing the agreement has recently intimated its intention of amending Section 10 dealing with "Content of Specification" of the Indian Patents Act, 1970 to strengthen the provisions on disclosures of the use of Traditional Knowledge and Genetic Resources in an invention when filing a patent application.⁴

Conclusion

The newly adopted treaty is a breakthrough that everyone was waiting for. By making mandatory disclosers for patent applications involving inventions concerning the use of Traditional Knowledge and Genetic Resources acknowledging the rights of indigenous communities along with the interface between Intellectual Property (IP), Genetic Resources, and Traditional Knowledge, and making the Treaty in all literal sense has become the "first of its kind."

Footnotes

1. https://www.wipo.int/pressroom/en/articles/2024/article_0007.html

2. https://www.wipo.int/pressroom/en/articles/2024/article_0007.html#:~:text=WIPO%20member%20states%20today%20approved,that%20capped%20decades%20of%20negotiations

3. https://pib.gov.in/PressReleaseIframePage.aspx?PRID=2021716#:~:text=The%20treaty%20on%20ratification%20and,resources%20or%20associated%20traditional%20knowledge.

4. https://timesofindia.indiatimes.com/business/india-business/patents-act-to-be-amended-to-strengthen-provisions/articleshow/110479476.cms#:~:text=DPIIT%20to%20propose%20amendments%20to,mentions%20TKDL%20for%20patent%20protection.

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