WIPO Members Debate Disclosure Of Origin For Genetic Resources In Patents

World Intellectual Property Organization members this week are discussing ways to protect genetic resources from misappropriation and ensure that those resources, when their access has been agreed – if exploited commercially – open up rights to the sharing of benefits from this exploitation. Negotiators yesterday discussed what type of instrument might be agreed, and debated a proposal to require disclosure of origin of genetic material.

The Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) has been trying for 15 years to find answers to the problem of misappropriation of genetic resources (GRs), traditional knowledge (TK), and traditional cultural expressions (TCEs), or folklore within the intellectual property system.

At the opening of the 29^th session of the IGC, meeting from 15-19 February, the chair of the meeting, Ian Goss of Australia provided a list of core issues on which delegates were expected to breach gaps.

Delegates are discussing a draft treaty text, which is the result of many past sessions of text-based negotiations.

Yesterday, worked started with policy objective of the draft treaty protecting genetic resources, and the subject matter of the protection, or what the treaty should be protecting. At the start of the session, some delegates were named facilitators, assigned the task of trying to find common language on the articles from the draft text which is being discussed this week.

Tentative Language for Consideration

Margo Bagley of Mozambique, one of the facilitators, presented a “minimalist approach” to the two texts today, reflecting three primary objectives underlined by a number of delegations. These are: an increased transparency in the IP system, the limitation of erroneous patents, and that the treaty be mutually supportive of other international instruments.

For policy objective, the facilitators’ text read as follows: “To enhance the efficacy and transparency of the international (IP) (patent) system, facilitate [complementary] [mutual supportiveness] with relevant international agreements and minimize the granting of invalid [IP] [patent] rights.”

Brackets in the text reflect disagreement among member states. For example, a number of developed countries are in favour of focusing only on patents, while many developing countries would like a broader consideration of IP instruments, such as copyrights.

The original draft provided a more detailed paragraph, heavily bracketed, including ensuring that IP offices have access to the appropriate information.

For Article 1 (Subject matter of instrument), the suggested language reads: “This instrument applies to genetic resources [their derivatives] and [associated traditional knowledge] [traditional knowledge associated with genetic resources].”

Bagley noted that the suggested language for both items was meant for the consideration of member states.

Mandatory Disclosure Requirement

On the proposed requirement that patent applicants and other IP applicants disclose the source of the genetic resources which they have used for their inventions, views are divided.

Some developed countries are saying that a mandatory disclosure requirement would introduce uncertainty into the patent system, and would complicate the implementation of benefit sharing. Most developing countries insist that the disclosure requirement should be mandatory and should apply to various IP instruments, not only patents.

An issue was raised by Namibia after the European Union suggested that the obligation to disclose be triggered only if the applicant had physical access to genetic resources that they have used. The Namibian delegate underlined the rapid evolution of genetic manipulation and the sequencing of genomes which can de facto avoid having physical access to GR.

Brazil said access should be the trigger to the obligation to disclose, while the United States said a new patent disclosure requirement would add new uncertainty into the patent system and the threat of patent invalidation in case of non-disclosure would undermine the role of the patent system and impede innovation. The definition of misappropriation should be discussed, the US delegate said.

Image Credits: Catherine Saez