[co-authors: Ana Leticia Allevato, Vítor Montovani]

Following more than two decades of negotiation, WIPO member states have inked the first-of-its-kind international treaty addressing the connection between “Intellectual Property, Genetic Resources, and Associated Traditional Knowledge,” a treaty that includes specific provisions addressing property rights of native peoples and local communities. The new treaty aims to make the patent system, particularly as it relates to life sciences, more transparent, with the aim of preventing the following assets of native peoples and essential parts of their native cultures from being improperly exploited by patent holders:

• Genetic resources (i.e., animal, plant, and microbial species of economic, scientific, social, or environmental value)
• Traditional knowledge (i.e., all forms of cultural habits, beliefs, practices, innovations, and cultural expressions developed, transmitted, and preserved by traditional, indigenous, and local communities over generations)

PATENT APPLICANTS’ OBLIGATIONS

Upon ratification by at least 15 treaty members, the treaty will enter into force and will, among other things, introduce a new disclosure requirement into international law for patent applicants whose inventions are based on genetic resources and/or associated traditional knowledge.

The treaty provides that, whenever a patent application involving a genetic-resource or/and traditional knowledge-derived technology is filed, the applicant will be required to inform the country of origin of the genetic resources or traditional knowledge.
However, the treaty will not be applied retroactively, and accordingly, it will not impact patent applications filed before its entry into force.

SIGNATORIES’ OBLIGATIONS AND ABILITIES

Upon adoption of the treaty, its signatories:

• Must implement measures allowing applicants a chance to rectify any omissions, except in cases of confirmed fraudulent behavior or intent as stipulated by national legislation, which will also be sanctioned according to national legislation.
• Are also authorized to create databases containing genetic resources and any related traditional knowledge. These initiatives will be undertaken in consultation with native peoples, local communities, and other relevant stakeholders, while considering their respective national contexts.

ALREADY EXISTING OBLIGATIONS

Disclosure obligations concerning genetic resources (often coupled with associated traditional knowledge) have previously been enacted by over 30 countries, including Brazil, China, India, South Africa, Germany, France, Belgium, Spain, Sweden, Italy, and Switzerland.

For example, in Brazil, the subject, regulated by Federal Law No. 13,123/2015, has been overseen by the Brazilian Patent and Trademark Office (BPTO) since 2005, showcasing the country's avant-garde stance in protecting the fundamental rights at stake, only now embraced by WIPO. Brazil’s preliminary office action no. 6.6.2 mandates patent applicants to disclose (i) the origin of genetic material and associated traditional knowledge, if applicable, along with (ii) the authorization number for access to such assets. It's worth noting that this stage of the administrative procedure comes with staying effects, thus suspending the start of the technical examination, making it impossible for applicants to not properly address the Agency’s office action.

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