A new historical Treaty on Intellectual Property, Genetic Resources, and Associated Traditional Knowledge was agreed upon at WIPO on May 24, 2024. The event is seen as a historic landmark, especially for Indigenous peoples, who see it as a great tool against the pillaging of their traditional knowledge and genetic resources.
The treaty was agreed upon by more than 190 nations. With the main aim of combating what Indigenous peoples call "biopiracy," it makes it mandatory for patent applicants to disclose the origin of the materials used in their new inventions. Companies have been increasingly using genetic resources that are found in different forms of products, spanning from cosmetics and medicine to seeds, food supplements, and biotechnology.
The purpose of the treaty is to increase transparency on intellectual property pertaining to Indigenous traditional knowledge about resources. The treaty does not, however, address the issue of material compensation for Indigenous communities. The treaty is the culmination of more than 20 years of negotiations and work at WIPO, which described it as the first treaty to address "the interface between intellectual property, genetic resources, and traditional knowledge."
The Indigenous Caucus group sees the treaty as a foundation for a sustainable future for all, as it recognizes the role of Indigenous peoples in the protection and survival of genetic resources by transmitting traditional knowledge from one generation to the next. While it is established that natural genetic resources are not considered protected intellectual property, it is, however, always possible to patent inventions developed using those resources. The main goal of the treaty is to combat biopiracy by ensuring that what is being patented is a genuine innovation while the countries and communities concerned agree on the usage of their genetic resources and traditional knowledge.
According to the treaty, patent applicants will have to disclose the origin of the genetic resources they used in their inventions and the Indigenous people who provided their traditional knowledge. This comes as a relief to the concerns of many developing countries, which have always been calling for further transparency regarding the origin of genetic resources. They have always been skeptical and suspicious that patents granted are circumventing the rights of Indigenous peoples.
The treaty also establishes that sanctions are to be imposed in accordance with the national laws of member countries adopting the agreement. There are already more than 30 countries that have mandated disclosure requirements in the texts of their national laws. This group of countries does not only include emerging market economies such as Brazil, China, India, and South Africa but also some Western countries, including Germany, France, and Switzerland.
It is worth mentioning that the disclosure procedure is not always mandatory. The text of the new treaty stipulates that countries "shall provide an opportunity to rectify a failure to disclose the information required... before implementing sanctions." However, it denies such an opportunity for rectification in "cases where there has been fraudulent conduct or intent as prescribed by national law." According to the treaty, a country is not allowed to "revoke, invalidate, or render unenforceable" a patent for the sole reason that necessary disclosure has not been made by the patent owner.
The text of the treaty comes as a finely balanced compromise between, on the one hand, the rights and legitimate concerns of Indigenous peoples and communities, and on the other hand, the advanced so-called first-world countries whose scientific and commercial entities are the most likely to come up with new inventions or patents where some of the knowledge can be based on genetic resources or traditional knowledge. The local communities wanted to preserve and protect their genetic resources and the traditional knowledge associated with those resources. The advanced countries wanted to foster innovation through the establishment of new patents.
The treaty aims to improve the patent system in terms of caliber, effectiveness, and transparency so that access conditions are implemented and respected and to ensure that the benefits derived from the utilization of genetic resources are properly shared. The new treaty guarantees the implementation of previous international agreements such as the Nagoya Protocol and the Biodiversity Agreement for Areas Beyond National Jurisdictions (BBNJ).
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