Last week, the first treaty on genetic resources and associated traditional knowledge of Indigenous Peoples and local communities was approved at the Diplomatic Conference organized by WIPO.
After almost 25 years of work, the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) has adopted the first treaty that aims to protect genetic resources and traditional knowledge associated with genetic resources within the patents, increasing their quality and transparency without hindering innovation.
To this end, a disclosure requirement (Art.3) is included for patent applications based on genetic resources or traditional knowledge. When the patent application is based on genetic resources, the applicant must disclose their country of origin; and, when the patent application is based on traditional knowledge associated with genetic resources, the Indigenous Peoples or the local community that provided that traditional knowledge must be disclosed. When the above is unknown, the source of the genetic resources or associated traditional knowledge must be indicated. And for those cases in which the applicant does not know the origin of the genetic resources or traditional knowledge, he must make a declaration in this regard, affirming that the content of the declaration is true and correct to the best of his knowledge.
Regarding the consequences derived from non-compliance with the disclosure requirement, it is stated that the Contracting Parties must provide for a possibility of rectification in the event that it has not been respected. Likewise, it is established that the Contracting Parties may establish legal, administrative and/or political measures that are appropriate, effective and proportionate to address these non-compliance, including the possibility of excluding the opportunity for rectification when fraudulent conduct or intent occurs. in accordance with national legislation.
However, these possible measures or sanctions are limited in that in no case may the acquired patent right be revoked or invalidated if the disclosure requirement is not complied with. At the same time, the nature of these sanctions remains to be seen since it is worth discussing the legitimacy to measure the damage caused to a third sovereign State or indigenous community, as well as the form of reparation.
It is difficult to imagine an effective and appropriate application of this new Treaty without further development of its essential aspects, which is why Art.10 provides for the creation of an Assembly that will be in charge of its development, review and possible modification.
On the other hand, highlight the implementation of information systems (Art.6) as an essential element so that the Offices of the Contracting Parties can have direct access in the searches and examination of patent applications, thus avoiding the improper use of genetic resources. or traditional knowledge associated with patents that do not present the required inventiveness or novelty.
The Treaty, which will enter into force once it is ratified by 15 Contracting Parties, constitutes a milestone in terms of the protection of genetic resources and traditional knowledge, despite the criticism that may be made, in addition to being a success for WIPO. and one more example of its multilateralism and the vocation for negotiation and consensus that exists within intellectual property at the international level.
Jorge Diaz Rodriguez
