Introduction-
Intellectual Property laws are made in such a fashion that it is tailor to the need of rapid rise in technological developments. The laws are formulated in such a manner that it keeps in mind powerful people. Thus, this creates an imbalance as the backward class of group of people and people with no use of technology are left from the purview of the laws. The demand for complete inclusivity in the laws has grown over the years. IP laws offer the protection only for a limited time before it can get exploited by the public. The countries have now finally become successful in chalking out a new treaty to cater with the demands of including genetic resources, traditional knowledge and its know-how.
Treaty Overview
Members of World Intellectual Property Organization (WIPO) approved a landmark treaty related to “Intellectual Property (IP), genetic resources and associated traditional knowledge”, resulting in fruition of a long pending treaty, which was necessary to accommodate today’s latest laws.
The importance of this treaty can be understood by the fact this is the first attempt made by WIPO to enact a treaty that will address the nexus among “intellectual property, genetic resources and traditional knowledge”. It will mark the historic debut of the WIPO treaty to address indigenous people and local communities of their rights.
Disclosure Requirement-
The treaty will enter into legal binding effect when “15 contracting parties” give accord to the treaty and will be established in international law. Disclosure requirements for patent applicants whose invention is based on genetic resources and/or associated traditional knowledge shall be accepted. “The applicants will be required to reveal the country of origin or source of the material used in the patent. Similarly, if the patent application is based on traditional knowledge, it will be required to disclose indigenous persons who help in providing the information”[i].
Ø Negotiation History-
Columbia should be given the recognition of being the first country to start making initial discussions related to the treaty way back in 1999. Two years passed by and then WIPO began to start making the progress of urging countries to start collecting data related to the treaty. These discussions were noteworthy for their “inclusion of indigenous people and local communities”.
What are Genetic Resources and Associated Traditional Knowledge-
“Medicinal plants, animal breeds, agricultural crops are some examples where genetic resources are found”[ii]. Genetic resources however alone cannot be protected as intellectual property. However, if an invention uses genetic resources as one of its sources, then the same can be protected in the form of a patent.
Over the generations, regional societies and native people conserve the traditional knowledge and its usage as genetic resources. This knowledge can be utilized in doing technical works and may contribute to the development of innovation and technology.
Significance and Important Talking points-
First time countries have formally accepted the importance of “genetic resources and traditional knowledge”. Often the indigenous culture has long been exploited by colonists, traders and even governments for their own benefit.
This treaty will mandate the companies in sectors like ‘pharmaceuticals, fashion, luxury goods’ to specify the origins of material they use in their products. About 35 countries already have this rule in practice.
One key aspect which this treaty failed to address is the compensation given to traditional communities for their role in maintaining and preserving the knowledge as well as preventing any misuse. Despite that, this treaty is the first step to success in ensuring that foreign companies or entrepreneurs specify where they got the ideas of what goes in their product.
The agreement centers on the genetic resource plants, crops, animal breeds. “This treaty shall be prospective in nature, meaning it will not apply to past inventions, rather focus on future discoveries”[iii].
Positives for India and Global South-
The treaty is said to be highly beneficial and important for India and many other developing countries. India has been advocating for this treaty for a long time. India for a long time was struggling to highlight the discrepancies within the current patenting system, calling this treaty a momentous change as it “recognizes the contribution of local communities and their genetic resources (GRs) and ATK (Aboriginal Traditional knowledge)” among developing nations. ‘India is a hub of biodiversity hotspots with abundance of traditional knowledge and wisdom’.
In the past, India had to face many obstacles and challenges to prove the origin and veracity of traditional herbs, which many other countries falsely claimed to be theirs. Take turmeric as an example, herb is well associated with India and known for medicinal purposes, but patent rights have been wrongfully given to foreign countries. Similarly, India has lodged strong protest when Neem and Indian Basmati rice has been awarded patents to other countries.
During the Negotiations phase of the treaty, India was among the forefront countries to ascertain how the treaty would come out. For the basic draft text of the treaty, India was among very few countries that bought their own research papers to be included in the treaty. During the Diplomatic Conference, India was in the driver seat to set out policy decisions and also proposed several changes in the drafting of the treaty.
The treaty is a strong proponent of urging the developed nations along with all other members, to modify their current “legal framework for enforcing disclosure of origin obligation on patent applicants”.
India will be beneficial with this treaty as it offers extra layer of protection to its genetic resources and traditional knowledge. While India already had laws, it lacked mandatory disclosure requirements and absence of proper “sanctions or remedies” in place. Thus, many times it was misappropriated and India had to suffer loss of patent rights.
By enforcing worldwide comprehensive standards on disclosure origin obligation, the treaty imposes higher standards on applicants than the current laws. Whenever India Ratifies it would have to make necessary changes.
How Will Treaty Work-
The members of WIPO have adopted systems globally to prevent erroneous grant of patents on traditional knowledge which suffers from no novelty or initiative with respect to genetic resources.
Newer provisions included “indigenous people for the first time”. To implement the treaty, the “signatories of the treaty will have to establish an information system like a database for genetic resources and traditional knowledge in accordance with indigenous communities”[iv]. The system will be helpful in examination of patent applications and safeguard the rights of communities.
Under the treaty, “source of genetic resources includes any source from which the applicant has obtained genetic resources such as research Centre, gene bank, depository etc. while source of traditional knowledge can be scientific literature, public databases, patent applications or publications”[v].
FLAWS in the Treaty-
After thoroughly analyzing the treaty, there are several shortcomings that can be found in the treaty.
Firstly, the treaty has no provision which makes it mandatory to “disclose the country of origin”, when the patent application uses genetic resources in “non-physical form such as digital sequence information” (DSI). “Treaty makes disclosure mandatory only when a patent application uses genetic material in physical form”. Thus, the limited scope drastically reduces the effectiveness of treaties to check biopiracy.
Secondly, the final version of the treaty contains some damaging provisions which “prohibit the patent office from verifying the information provided”. As per the treaty, cancellation can only be done if the disclosure is made with “fraudulent intent”.
Treaty Contrary to Indian Patents Act-
At least two provisions of the treaty are contradictory to Indian laws. The treaty does nothing to address major issues like-
“Section 10.4 (d) proviso 2 of Patents act says any patent specification has to disclose the source and geographical origin of biological material when used in invention”[vi]. Under the treaty, mandatory disclosure takes effect only when a patent application is based on GR & ATK. The term “Based on” in the treaty implies GRATK must have been necessary for claims of invention[vii]. Hence, India has included a wider ambit of disclosures requirements, but the treaty has adopted a very thin approach.
“Section 64.1 (p) of the Patent Act allows revocation of patents that complete specification does not disclose or wrongly mentions the source of origin of biological material used for invention”[viii]. Article 5.4 of treaty says “no contracting party shall revoke the patent rights solely on basis of applicant’s failure to disclose information as per article 3 of treaty”, revocation will be only on fraudulent grounds.
Further USA proposed to include ‘extinguish’ after revocation in article 5.3 of treaty, as a result India will be prohibited from “revoking a patent on ground of failure or wrongful disclosure”.
Thus, it can be said that India is unable to protect its existing legal framework. Back in 1989, the then government decided to include ‘intellectual property’ in Uruguay Round of negotiations, it was dubbed as “Geneva Surrender”.
Several developing countries have criticized this agreement because it prohibited access to medicines to millions of people including India. On the face of it, it looks that India has succumbed to the treaty proposal to “eliminate policy space to patent law especially on revocation of patent and ability of patent office to verify the authenticity of information”.
Looking Ahead-
Preserving ancient forms of creative knowledge and practices is as essential as having strong technological advancement. Both are crucial and there needs to be an equitable balance between them. Now that there is a treaty formulated, countries will have to make sure all the provisions are properly enforced so that past challenges are not repeated. Once the treaty starts getting implemented, it would further clarify what all changes and amendments need to be taken.
Conclusion-
Despite the concerns and some flaws in the treaty, the WIPO president expressed satisfaction that the treaty finally culminated after 25 years of stalled negotiations. The treaty signed by more than 150 countries is testament that it will soon be implemented. The treaty marks the first-time genetic resources and indigenous people and communities are getting recognition and hopefully would inspire more such treaties to come up.
[i] Article 3 of the WIPO treaty, 2024
[ii] Article 2 of the WIPO treaty, 2024
[iii] Article 4 of the WIPO treaty, 2024
[iv] Article 6 of the WIPO treaty, 2024
[v] Article 2 of the WIPO treaty, 2024
[vi] Section 10(d)(ii) of Indian Patents Act, 1970
[vii] Article 2 of the WIPO treaty, 2024
[viii] Section 64(1) (p) of Indian Patent Act,1970
References –
- www.wipo.int. (2024). WIPO Member States Adopt Historic New Treaty on Intellectual Property, Genetic Resources and Associated Traditional Knowledge. [online] Available at: https://www.wipo.int/pressroom/en/articles/2024/article_0007.html
- PTI (2024). WIPO concludes new treaty to protect genetic resources, traditional knowledge; India plays key role. The Hindu. [online] 25 May. Available at: https://www.thehindu.com/news/national/wipo-concludes-new-treaty-to-protect-genetic-resources-traditional-knowledge-india-plays-key-role/article68214956.ece
- https://www.wipo.int/edocs/pubdocs/en/wipo-pub-rn2023-5-1-en-traditional-knowledge-and-intellectual-property.pdf
- https://pib.gov.in/PressReleaseIframePage.aspx?PRID=2021716
Authored by -Nandan Rathi (Hidayatullah National Law University)
