Heralded as ‘historic’ and a ‘landmark’ on Friday 24 May 2024, and after 25 years of discussions, the 193 member countries of the United Nations World Intellectual Property Organization (WIPO) adopted a Treaty that would require patent applicants to disclose the country of origin or source of genetic resources and/or the indigenous peoples or local communities involved in providing traditional knowledge associated with an invention.
The disclosure requirement is set out in Article 3 of the Treaty and requires patent applicants to provide the country of origin or, if not known, the source of any genetic resources upon which the claimed invention is based. Where an invention is based on traditional knowledge associated with genetic resources, the patent applicant is required to disclose the Indigenous Peoples or local community, as applicable, who provided the traditional knowledge associated with genetic resources or, if not known, the source of the traditional knowledge associated with genetic resources. The information is to be provided by the applicant in the form of a declaration affirming that the content of the declaration is true and correct to the best knowledge of the applicant.
Various terms, including “genetic material”, “genetic resources”, “source of genetic resources” and “source of traditional knowledge associated with genetic resources” are defined in Article 2.
Importantly, and much to the relief of some patent owners, Article 4 contains a non-retroactivity clause such that the disclosure requirement will not apply to patent applications filed before the Treaty enters into force. It is also important to note that the Treaty includes provisions to allow opportunities to rectify a failure to disclose the required information, and to provide that a patent cannot be invalidated solely on the basis of a failure to meet the disclosure requirement. It would also appear that patent applicants will only be required to disclose the immediate sources from which they obtained the associated genetic resources and traditional knowledge, and will not be required to conduct detailed and expensive investigations to identify original sources.
This Treaty on Intellectual Property, Genetic Resources and Associated Traditional Knowledge (GRATK/DC/7 Prov. (wipo.int) will not enter into force until three months after 15 Member States of WIPO have deposited their instruments of ratification or accession. The contracting parties also need to commit to a review of the Treaty four years after it enters into force.
As the first Treaty that recognizes the existence of Traditional Knowledge held by Indigenous Peoples and local communities as part of the Intellectual Property diaspora it starts to approach the obligations embodied in Article 31 of the UN Declaration on the Rights of Indigenous Peoples (adopted in 2007) which gives Indigenous peoples ‘the right to maintain, control, protect and develop their cultural heritage, traditional knowledge, and traditional cultural expressions’ and to which Australia became a late signatory. In Australia there has already been some progress in this regard with IP Australia having embarked on a comprehensive engagement program focussed around the key themes of ‘Control, Protection, Recognition and Respect’ , including seeking to establish an Indigenous Advisory Panel. More information is available from their website: Empowering Indigenous Knowledge and advancing IP systems | IP Australia.
Organisations, such as the Commonwealth Scientific and Industrial Organisation (CSIRO), are also proactively engaging with Aboriginal and Torres Straits Islander people. CSIRO have committed to recognising Indigenous Cultural and Intellectual Property (ICIP) and have developed core publicly available principles that guides their research (Indigenous Cultural and Intellectual Property Principles – CSIRO).
Stand-alone legislation to protect Traditional Knowledge and Traditional Cultural Expressions is also anticipated with the current Australian Government tasking The Office of the Arts, within the Department of Infrastructure, Transport, Regional Development, Communications and the Arts, to progress this. Stand-alone Indigenous Cultural and Intellectual Property Legislation | Office for the Arts.
Further protection of Traditional Knowledge and Traditional Cultural Expressions also remains within the WIPO’s sight lines, and with this Treaty on Genetic Resources concluded further multilateral recognition remains a possibility. Thus this ‘historic’, ‘landmark’ Treaty is not the end of the conversation, but rather encourages the continuation of the ongoing international conversations on the intersection of traditional intellectual property and Indigenous Cultural and Intellectual Property.