By Wend Wendland, Director, Traditional Knowledge Division, Global Challenges and Partnerships Sector, WIPO and Secretary of the WIPO Intergovernmental Committee (IGC)
In the early hours of May 24, 2024, the WIPO Conference Hall erupted in jubilation as the gavel went down and a new accord was born: the WIPO Treaty on Intellectual Property, Genetic Resources and Associated Traditional Knowledge. Its adoption capped a journey that began 25 years ago.
In short, this game-changing treaty is a step towards curbing “biopiracy”, or the misappropriation of genetic resources (GR) and traditional knowledge (TK) associated with them (associated TK). GR are contained in medicinal plants, agricultural crops, micro-organisms and animal breeds. Because they are not creations of the human mind, they cannot be directly protected as intellectual property (IP). Associated TK is often used and conserved by Indigenous Peoples as well as local communities over generations.
Biopiracy is said to occur when, for example, an applicant attempts to patent an innovation that mostly relies on GR and associated TK and may therefore not be new or inventive.
The new treaty requires patent applicants to disclose the origin or source of any GR or TK used in their invention.
Let’s say there’s a patent application for a new cosmetic, the development of which depended on the use of an oil obtained from a plant. Under the new treaty, the country of origin or source of the plant must be listed in the patent application. Here, for the first time, a WIPO treaty creates a bridge between IP law and environmental law.
The disclosure requirement also applies to any associated TK on which the invention is based. In this case, the Indigenous People or local community who provided the knowledge would also need to be identified. Here, for the first time, Indigenous Peoples and local communities are explicitly acknowledged in a WIPO treaty.
The requirement could make it easier for countries of origin, Indigenous Peoples and local communities to share in the benefits that arise from the use of their GR and associated TK showing the Treaty’s potential to help bridging the gaps between IP law and access and benefit-sharing mechanisms in environmental law and other areas.
Currently, unless there is already such a disclosure requirement in national law, patent applicants do not normally need to disclose this kind of information unless it is relevant for patent examiners to decide whether the invention is novel and inventive (also known as non-obviousness).
The treaty also contemplates the possibility for the parties to establish information systems such as databases of GR and associated TK, which should be accessible to patent offices for the search and examination of patent applications.
These measures aim to improve the efficacy, transparency and quality of the patent system and prevent patents from being granted erroneously.
The adoption of the treaty concludes a long process
The roots of the central idea in the new Treaty – a mandatory disclosure requirement in patent law in cases where an invention is based on GR and/or associated TK – lie in discussions on the relationship between IP, biotechnology and biodiversity conservation that began in the late 1980s and early 1990s.
The idea found its way into WIPO through a proposal made in 1999 by Colombia. The proposal did not end up in the Patent Law Treaty under negotiation at the time, but it catalyzed the creation of the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (the IGC), which began to meet as from April 2001.
The first draft of an international legal instrument on GR and associated TK emerged from the IGC’s deliberations in 2012, distilling 11 years of discussions and more than 500 pages of documents into a single text.
However, by 2018, divergences on key issues – such as when the disclosure obligation would be triggered, the content and scope of the obligation, the consequences of non-compliance and indeed whether there should even be a new disclosure obligation – brought discussions to a deadlock.
A step change came in April 2019, when Ian Goss of Australia, then Chair of the IGC, prepared a document that became known as the “Chair’s Text”. The document, which drew on years of IGC discussions, regional and national laws and experiences, and Goss’s extensive consultations with experts, was selected by the WIPO General Assembly in July 2022 to be the basis for the Diplomatic Conference.
Preparations for the Diplomatic Conference: April 2023 to May 2024
In February 2023, I wrote that an agreement on IP, GR and associated TK might finally be in sight. From the following April, preparations for the Diplomatic Conference intensified dramatically. These included a series of regional preparatory meetings, culminating in an interregional meeting in Beijing in July 2023.
These meetings were useful because: they were informal and off the record; they covered both process issues and substantive questions; they were facilitated by national experts; and, officials from capitals as well as diplomats based in Geneva participated.
Subsequent preparations included a special session of the IGC and a meeting of the Preparatory Committee of the Diplomatic Conference. These meetings resulted in the basic proposal, that is, the text that the Diplomatic Conference would begin with.
By the end of 2023, WIPO member states had also agreed when and where the Diplomatic Conference would take place: May 13 to 24, 2024, at WIPO HQ in Geneva. With the dates and venue set, there was a renewed sense of urgency and countries began calling for another informal meeting.
Namibia stepped up and arrangements were quickly made for an interregional technical meeting to take place in Swakopmund in March 2024. The meeting was a resounding success.
Held in a casual atmosphere with discussions off the record, the meeting enabled the participants to, perhaps for the first time, truly negotiate. They began, albeit informally, to articulate the interests behind their policy positions, listen carefully to each other and openly test creative middle ground.
The program was carefully designed to help participants find compromises across connected issues in the text and the meeting proved as productive in substance as it was in nurturing friendly relationships and a pragmatic, solutions-oriented approach. Trust had also been developing over many years between delegations and the IGC Secretariat. The “soft” features of the process – years in the making – would later prove critical to the success of the Diplomatic Conference.
For sure, as we left Namibia, points of view still diverged on several critical issues and much work remained. An agreed outcome, however, did not seem out of reach. And the consensus-building spirit of Swakopmund would make its way to Geneva and contribute to the successful negotiations in the Diplomatic Conference.
Ingredients for success
The closing statements of delegations and the Indigenous caucus testify that the new WIPO Treaty represents a momentous achievement.
In my view, the quality of the basic proposal was a critical ingredient of the success. That text suggested a narrow, technical and relatively limited solution, and was a carefully constructed compromise that already closely resembled what could be acceptable to many member states.
Another contributing factor to the success of the Diplomatic Conference was the extensive preparations undertaken, especially following April 2023, by the member states, the Indigenous caucus and other observers, as well as the Secretariat. As the Secretariat, often working behind the scenes, we left little to chance. I would like to think we were ready for every question and any eventuality.
From my perspective, three further factors enabled delegations to cross the line together. The first was the methodology used during the Conference, particularly staging informal discussions and ensuring agility, inclusivity and transparency in the process. The second was the general sense that the Conference should aim for a consensual outcome, which added an important degree of realism and pragmatism, especially in the final stages. The Treaty is truly the product of all member states. The measures taken to enable effective participation by the Indigenous caucus, building on the IGC’s long practice, were essential too.
Finally, the effectiveness and cohesiveness of the core team most directly involved in the overall management of the Conference. This team included the President of the Conference, Ambassador Guilherme Patriota (Brazil) and the Presidents of Main Committee I and II, Jodie McAlister (Australia) and Vivienne Katjiuongua (Namibia), respectively. The Steering Committee and representatives of the regional groups, the European Union, the Like-Minded Countries and the Indigenous caucus were all key. Under the leadership of Director General Tang, the good-spirited collaboration across the entire Secretariat was, in my experience, unprecedented. In preparation for and in the negotiations themselves, the seamless teamwork between the Traditional Knowledge Division and the Office of Legal Counsel was crucial.
Above all, in my view Ambassador Patriota was critical to the success of the Conference.
What happens next?
The treaty will come into force three months after 15 eligible parties (countries or intergovernmental organizations, as stipulated in the Treaty) have either ratified or acceded to the Treaty.
Time will tell whether the Treaty leads to convergence across national jurisdictions. On the one hand, it establishes some common rules, while leaving significant leeway to contracting parties to implement the treaty in a way that best suits their own legal systems and practices.
How the Treaty will interact with the IGC’s ongoing negotiations, which resume in November 2024, is another matter that will become clearer over time.
The IGC’s mandate for the 2024 -2025 biennium provides that the IGC will “continue to discuss intellectual property issues concerning [genetic resources] as they relate to the mandate of the Committee”. The first session in 2024, IGC 48 in late November, will “take stock of the progress made on [genetic resources] and TK associated with [genetic resources] and discuss any issues arising from the Diplomatic Conference”.
In early December 2024, the IGC 49 will pivot back to negotiating draft legal instruments on the protection of TK and traditional cultural expressions. There are connections between the ongoing negotiations on TK and the Treaty that will need to be unpacked and clarified.
Much interesting work lies ahead.
The Treaty’s symbolic significance lies in the history, in the signals it sends about the IP system’s ability to evolve to expand access, inclusivity and empowerment, and in its uplifting reminder of the benefits of multilateralism.
But it is also of practical importance. This is why bringing this historic instrument into force and implementing it in practice is such a high priority.
Any views expressed are those of the author alone and do not necessarily reflect the views of WIPO or its member states. The article is an informal summary and account. You can read the full Treaty text online.
About the author
Wendland is the Director of WIPO’s Traditional Knowledge Division and Secretary of WIPO’s Intergovernmental Committee (IGC). He has previously written on the IGC’s negotiations on genetic resources, traditional knowledge and folklore, and on the decision to convene a Diplomatic Conference on the topic.
As the Secretariat, WIPO is ready to support countries and intergovernmental organizations that request information and support in ratifying or acceding to the treaty and implementing it in their domestic law. WIPO also supports representatives of Indigenous peoples and local communities in relation to their roles in the treaty. Contact the Traditional Knowledge Division at grtkf@wipo.int for more information.
