At the diplomatic conference of the World Intellectual Property Organization, held in Geneva from May 13 to 24, the first international legal instrument related to intellectual property, genetic resources and associated traditional knowledge was adopted – the WIPO Treaty on Intellectual Property, Genetic Resources and associated Traditional Knowledge.
The new Treaty represents a historic step forward in the legal regulation of intellectual property, genetic resources and associated traditional knowledge, and was created as a result of negotiations that have been conducted within the framework of the World Intellectual Property Organization since 2001. The particular problem that needed to be overcome during the negotiations and shaping of the content of the Treaty norms was achieving a balance between patent protection, on the one hand, and the rights of indigenous peoples and local communities to genetic resources on their territory and traditional knowledge related to those resources, on the other hand. This issue is addressed through the mechanism of disclosure of the country of origin or source of genetic resources in the patent application, in the case where a patent is sought for an invention based on genetic resources. If the invention for which a patent is sought is based on traditional knowledge associated with genetic resources, the applicant will be required to disclose the indigenous peoples or local community that provided the traditional knowledge. If the applicant does not know the country of origin of the genetic resources or the indigenous people, i.e., the local communities, the applicant is obliged to indicate the source of the genetic resources or traditional knowledge related to the genetic resources.
Therefore, the Treaty sets the conditions that the industrial property administrations of the member countries of the Treaty will set before patent applicants, so they will be unable to obtain a patent without revealing the country of origin or source of genetic resources, i.e. indigenous peoples or local communities, which provided traditional knowledge. In addition, member states are obliged to provide applicants with guidance regarding the fulfillment of requirements for disclosure of the country of origin or source of genetic resources, i.e. indigenous peoples or local communities, as well as to enable them to correct and supplement applications that contain incorrect or incomplete data.
The primary objectives of the Treaty are therefore to improve the efficiency, transparency and quality of the patent system with respect to genetic resources and traditional knowledge associated with genetic resources, and to prevent the erroneous granting of patents for inventions that are not new or inventive with respect to genetic resources and traditional knowledge associated with genetic resources.
As an example of genetic resources with which a patentable invention can be developed, certain medicinal plants, agricultural crops or animal breeds can be mentioned. A genetic resource, itself, cannot be protected by a patent, but an invention developed using such a resource can be protected. Traditional knowledge typically refers to the way of using certain resources, their preservation and conservation, traditional medicine, etc.
This Treaty does not impose an obligation on member countries, but encourages them to establish information systems (like databases) of genetic resources and traditional knowledge associated with genetic resources, in consultation and cooperation with indigenous peoples, local communities and other stakeholders. If such a system is established, the member states have to make it available to the industrial property administrations of other states, for the purpose of searching and examining patent applications, and with the application of adequate protection measures.
Finally, the Treaty also established the Assembly of Member States, made up of one delegate from each Treaty Member State.The fundamental tasks of the Assembly are reflected in the maintenance and development of the Treaty, and all issues related to its implementation.
In terms of next steps, the parties committed to review the scope and content of the Treaty four years after its entry into force, addressing issues like the possible extension of disclosure requirements to other areas of intellectual property and addressing other issues arising from modern and relevant technologies for the implementation of the Treaty.
This Treaty enters into force three months after 15 parties have deposited their instruments of ratification or accession. On behalf of Bosnia and Herzegovina, the Treaty was ratified by the director of the Institute for Intellectual Property of BiH, and the ratification and accession to the same will ultimately be realized through a legal procedure in the Parliamentary Assembly of BiH.
Author: Igor Letica
E-mail: [email protected]
