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WIPO Update: Long-Awaited IP Treaty for Genetic Resources and Associated Traditional Knowledge

24 May 2024 marked a historic moment, wherein World Intellectual Property Organization (WIPO) member states approved of a new Treaty that is the first to look towards the interface between intellectual property, genetic resources, and traditional knowledge. This approval follows from long-standing negotiations that began over two decades ago, back in 2001 and represents a milestone in promoting fair benefit sharing between holders of genetic resources and associated traditional knowledge (mostly biodiversity rich countries) and those with the modern technologies to access and use them.

The term “genetic resources”, as defined in the Convention on Biological Diversity, 1992 (CBD), is understood to be any genetic material of plant, animal, microbial or other origin containing functional units of heredity of actual or potential value. This may include agricultural plants and crops, medicinal plants as well as animal breeds. Whilst these genetic resources alone, as found in nature, are not eligible as patentable subject matter, inventions derived from these materials may be eligible for a patent.

In some cases, there may be genetic resources associated with traditional knowledge, which have been conserved, maintained and used by Indigenous people and communities for generations. Such types of genetic resources are valuable, particularly to the scientific and research communities, where such resources may translate to a patentable invention. Without any safeguards in place for Indigenous people and communities, it becomes all too easy for large corporations to file and obtain patents on derivatives of these genetic resources, which has in fact occurred by one such US-based company, whereby derivatives of the neem tree were patented as pesticides, which was knowledge already known by local communities in India.

International requirements

Once the Treaty enters into force, which will be effective 3 months after ratification by 15 member states, there will be a new requirement in international law for patent applicants disclosing information using genetic resources and/or associated traditional knowledge, in those states that are party to the Treaty. Specifically, where a patent application includes disclosure of genetic resources, each contracting party will require the Applicants to disclose the country of origin or source of the genetic materials. Likewise, where a patent application utilises traditional knowledge associated with genetic resources, each contracting party will require the Applicant/s to disclose the Indigenous people or community, from whom the traditional knowledge was acquired. Furthermore, evidence of prior informed consent as well as evidence of there being a benefit-sharing agreement are required.

In the event whereby there is failure of the Applicant to disclose such information, there are provisions in the Treaty that assists with providing the Applicant with another opportunity to attend to these formalities. Of particular note, there are provisions in the Treaty that protect a patent from becoming invalidated on the grounds of failure to disclose the new requirements. However, there may be sanctions and remedies if the Applicants fail to disclose this information with the intent to mislead, which may include monetary fines. Effective enforcement and compliance of Applicants with the provisions of the Treaty therefore becomes the member state’s responsibilities. The new requirements will only apply to patent applications filed after the Treaty enters into force. Any application filed prior to this will not be subjected to these new requirements.

Each contracting member state of the Treaty is therefore advised to establish information system databases for storing this information.

Australia to join as a member state?

In Australia, there are already patents that utilise derivatives of emu oil, native tobacco and Kakadu plums. Whilst Australian IP laws do protect some Indigenous IP, not all forms of this are protected. For example, there may be IP protection on visual arts and crafts, but in many cases, no such protection may be offered for protecting the traditional methods used to create such arts and crafts. Given Australia’s supportive stance towards respecting and maintaining the cultural integrity of Indigenous people and their communities, one would reasonably expect Australia to be one of the member states to ratify this global agreement, which would bring the country another step closer towards providing the appropriate recognition to the unique and diverse contributions offered by the First Nations people across Australia[1].

We look forward to an international IP system that not only encourages innovation, but also acknowledges and values, in an inclusive manner, the traditions of Indigenous communities for their contributions to intellectual property. We will be keeping a close eye on any updates in the near future and will be providing a further updated article, if and when such updates occur.

If you have any questions in relation to the above, please do not hesitate to contact our team.


[1] See online press release: https://www.foreignminister.gov.au/minister/penny-wong/media-release/historic-global-agreement-recognising-first-nations-cultural-knowledge