Draft text though fails to address the problem of biopiracy of genetic resources and associated traditional knowledge using patents, says experts
Member countries of the World Intellectual Property Organization (WIPO) ended a five-day meeting on September 8, 2023, about a new treaty regarding Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore. The Intergovernmental Committee met in Geneva between September 4 and September 8 to finalise the text of this legal instrument.
This new treaty, if agreed on, could ensure benefits to indigenous communities that have protected genetic resources and are knowledge holders of how these can be used. Though these are governed by the Convention on Biological Diversity (CBD), benefits have been rare till date.
The treaty would make it mandatory for patent applicants to declare or disclose their use of genetic resources and any associated traditional knowledge.
The two main aims of the new treaty are to enhance the efficacy, transparency and quality of the patent system with regard to genetic resources and associated traditional knowledge; and prevention of patents being granted for inventions that are not novel or inventive.
However, legal experts point out that the draft text fails to address the problem of the biopiracy of genetic resources and associated traditional knowledge using patents. The base text for this treaty, the “Chair’s text”, categorically excludes any provision that is already addressed by other international instruments.
This means that access and benefit-sharing and misappropriation, which are already dealt with in the CBD, the Nagoya Protocol on Access to Genetic Resources (GR) and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the Convention on Biological Diversity, the International Treaty on Plant Genetic Resources for Food and Agriculture and the Pandemic Influenza Preparedness Framework, are not part of new treaty.
India had submitted extensive amendments to the draft text. Among the many changes suggested, the submission provides a definition for traditional knowledge associated with genetic resources. Till date, there is no comprehensive definition for this.
According to the submission, “Traditional Knowledge associated with Genetic Resources” means any knowledge which is “evolving, generated in a traditional context, whether documented or not, collectively preserved, and transmitted from generation to generation and including but not limited to know-how, skills, innovations, practices, and learning, that are associated with GRs.”
Another thing that India wants is for researchers to disclose the exact source of the GR, instead of merely mentioning the country of origin as the draft treaty stipulates.
India’s note says that the “inventor and/or the applicant would always be aware of the source of the genetic resources and/or associated traditional knowledge on which the research is carried out or from where the knowledge of the properties has been obtained”.
Generally, countries such as the US, Japan, and South Korea, are opposed to any mandatory disclosure requirement. These groups also oppose strong sanctions on patent owners for non-compliance. Others such as the EU, Australia, and New Zealand are broadly in favour.
“The scope of the proposed international instrument is very narrow and leaves out Digital Sequence Information from its scope. As a result, disclosure requirements of DSI based patents will not be mandatory and this will heavily compromise the effectiveness of the instrument,” KM Gopakumar, legal advisor, Third World Network, told Down To Earth.
The current draft requires substantial changes to expand the scope and provide sufficient policy space for countries like India to maintain its current stronger disclosure requirements under its Patents Act, he added.
The Intergovernmental Committee was established in 2000, but failed to finalise a draft text of this treaty for decades. Text-based negotiations began in 2010 but did not progress much and these discussions were used by the then IGC Chair, Ian Goss, to prepare a draft text in April 2019. The WIPO members are using this text to prepare a final text based on the discussions at the special session.
On September 6, the IGC released the first revision of the text which mainly has cosmetic changes and the second revision was released on September 8. As mentioned by the chair Lilyclaire Bellamy of Jamaica, only those proposals which enjoy agreement will find a place in the revised draft text.
India’s proposals have not been incorporated in the text due to lack of consensus as were suggestions by other countries.
Countries will have to push for their amendments and raise their concerns at the Diplomatic Conference where the text will be negotiated. The date and venue of the meeting is not yet decided. On Monday, India withdrew its candidacy to host the diplomatic conference.
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