The World Intellectual Property Organization announced on May 24, 2024, a treaty on intellectual property, genetic resources, and associated traditional knowledge that was twenty-five years in the making. As WIPO’s press release noted, “[n]egotiations for this Treaty began at WIPO in 2001, initiated in 1999 with a proposal by Colombia, where discussions were notable for their inclusion of Indigenous Peoples as well as local communities.” Because the treaty has importance in and of itself for the subject matter it covers, we will describe its substance. But because it also provides an example of process and structure that could help address concerns over the ownership of works created by deploying artificial intelligence (especially when coupled with an understanding of the history of laws governing US plant patents), we will also look at its evolution to help us think outside the box that some have worked themselves into on artificial intelligence works questions. Plus, I had not focused a piece on a treaty since 2016 (when I wrote about the TRIPS treaty on geographic indicators) and 2015 (when I wrote about the Trans-Pacific Partnership on trade secrets), so I seemed overdue.
First, what exactly is this treaty about? Simply stated, it is an agreement concerning how intellectual property regimes will address genetic resources, such as medicinal plants, agricultural crops, and animal breeds. It is important that there be some agreement on such matters because, generally, one cannot protect genetic resources themselves as intellectual property, but inventions developed using them can be so protected, most often through a patent. Under the treaty, where a claimed invention in a patent application is “based on” genetic resources (GR), each contracting party shall require applicants to disclose the country of origin or source of the genetic resources. Where the claimed invention in a patent application is “based on” traditional knowledge (TK) associated with genetic resources, each contracting party (i.e. each country) requires applicants to disclose the Indigenous Peoples or local community, as applicable, who provided the traditional knowledge. As one commentator noted, “the new WIPO Treaty on Patents, Genetic Resources, and Traditional Knowledge has the potential to transform global biotechnology, promoting a fairer distribution of benefits and strengthening the rights of indigenous peoples and traditional communities.”
Second, one is tempted to ask “why it could have such impact?” Essentially, it is about some balancing, or re-balancing, of influence between those who have long used traditional knowledge and those who have co-opted such use through so-called bio-piracy:
For many years, there have been concerns about “biopiracy” – the misappropriation of genetic resources (GR) and traditional knowledge (TK) from indigenous peoples and local communities, often in developing countries. Biopiracy involves researchers or companies obtaining GR or TK, using it to develop commercial products like medicines, and obtaining patents without adequately compensating or getting permission from the original TK/GR holders.
Some well-known examples of alleged biopiracy include: patents on wound-healing properties of turmeric, which had long been known in India; patents related to neem tree extracts, also used for centuries in India; Japanese and American patents on extracts of the African “Hoodia” cactus, traditional used by San people to stave off hunger; and a US patent on the Amazonian “ayahuasca” vine, considered sacred and used in ceremonies by indigenous peoples.
[Dennis Crouch, WIPO Adopts Treaty on Intellectual Property, Genetic Resources, and Associated Traditional Knowledge; see also Matthew Campbell, World Intellectual Property Organization (“WIPO”) Adopts Treaty on Genetic Resources and Associated Traditional Knowledge]
The WIPO treaty seeks to re-adjust the playing field to a more equitable one:
The enactment of this treaty represents a milestone in the field of intellectual property, especially for megadiverse countries like Brazil and for traditional communities that have long fought for the recognition and protection of their ancestral knowledge. Historically, these peoples have been invisible in intellectual property laws and treaties, resulting in the granting of patents that utilize their genetic resources and traditional knowledge without proper consent or benefit-sharing.
The intense discussion in Geneva revealed two opposing fronts: developed countries, concerned about the potential impact on innovation and patents, and megadiverse countries, along with indigenous peoples, advocating for transparency and recognition of the origin of genetic resources and traditional knowledge.
[Viviane Kunisawa, The Biotechnology Revolution: The Impact of the New WIPO Treaty on Genetic Resources]
As noted in the treaty itself, its objectives were to “(a) enhance the efficacy, transparency and quality of the patent system with regard to genetic resources and traditional knowledge associated with genetic resources, and (b) prevent patents from being granted erroneously for inventions that are not novel or inventive with regard to genetic resources and traditional knowledge associated with genetic resources.”
This addresses concerns not only in megadiverse countries like Brazil, but also like those raised by German scientists who “overwhelmingly support policy changes that facilitate the use of their scientific breakthroughs to solve problems in the world, and they do not want to see large companies use the technologies to consolidate economic power or to profit at the expense of solving problems,” and thus have lobbied for changes in policies limiting the use of transgenic breeding techniques and genetic editing techniques. It is also worth noting that there are at least four other international bodies considering questions concerning genetic resources:
The Ad Hoc Open-ended Working Group to Enhance the Functioning of the Multilateral System (MLS) of the International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA);
The Kunming-Montreal Global Biodiversity Framework (GBF), under the goals and targets on benefit-sharing from the use of genetic resources and digital sequence information (DSI);
A multilateral mechanism for benefit-sharing from the use of DSI, established in 2022 at the 2022 UN Biodiversity Conference; and
The new BBNJ Agreement, which contains provisions on benefit-sharing, marine genetic resources, and DSI.
[SDG Knowledge Hub, International Institute for Sustainable Development (IISD), Intellectual Property + Genetic Resources + Traditional Knowledge = Treaty]
This indicates that there is a human tendency toward wanting to solve such issues across borders because they impact so many of us in so many places. Though many have suggested that AI governance will result from a matrix of local, state, federal, and cross-border regulation, the likelihood of both confounding contradictions and inefficient overlap makes a high-level approach—at least on some basics–more attractive.
Third, the WIPO treaty attempts to do so through a key disclosure requirement mandating that patent applicants in each nation disclose whenever inventions are “based on” GRs or associated TK. As Campbell notes, “[t]he disclosure requirement is aimed at preventing the erroneous granting of patents based on ‘prior art’ (e.g., the use of plant medicine known to Indigenous Peoples for centuries) and can also help to curb instances of biopiracy by pharmaceutical companies and others who seek to profit from use of traditional knowledge to develop new medications or other products.” The treaty defined “Based on” as meaning “that the genetic resources and/or traditional knowledge associated with genetic resources must have been necessary for the claimed invention, and that the claimed invention must depend on the specific properties of the genetic resources and/or on the traditional knowledge associated with genetic resources.” This importantly recognizes both the ability to obtain patents based on GR and TK and recognition that TK may also represent accessible prior art that requires disclosure by the applicant. Thirty-three countries and regions have already implemented this disclosure requirement, though the United States has not yet done so. (In late 2023, the US Patent & Trademark Office had sought comments on the draft treaty, and received by the January 2024 deadline almost 40 such comments).
For some of us CRSPR geeks, a major gap in this treaty is that it is “not intended to include ‘human genetic resources.’” WIPO Treaty On Intellectual Property, Genetic Resources And Associated Traditional Knowledge, at fn. 1. Thus, many of the present controversies over genetic material patenting and related intellectual property claims and considerations are not addressed by the treaty at all, and the ethical concerns and challenges remain in this area from those connected to human gene editing to other forms of biological transformation. This is an important omission, as the USPTO’s Appeals Review Panel’s May 17, 2024 decision in Ex parte Chamberlain, case number 2022-001944, concerning antibodies, and specifically to optimized IgG immunoglobulin variants, engineering methods for their generation, and their application, particularly for therapeutic purposes illustrates that defining the scope and protectability of such inventions remains in the midst of an evolution. Perhaps a later post here, or another treaty or legislative act sweeps in this subject matter as well.
But, even with that gap, the WIPO treaty shares with earlier US acts the notion that investment in commercial process isolation and development may prove a sufficient policy basis for protecting ownership and spurring investment even if old notions of copyright and patenting may not fit. This need to protect valuable undertakings, in the end, may provide an important impact of the development of intellectual property. We have seen it happen before, and it has allowed one to side-step the moral debates over any need to justify ownership based on a static definition of inventive contribution:
Confronted with the inapplicability of intellectual property law to new varieties of plants, Congress enacted the Plant Patent Act of 1930 and the Plant Variety Protection Act of 1970, which protect new varieties against unauthorized asexual and sexual reproduction, respectively. Breeders were required to deposit samples in lieu of providing a description of how to make the plant. Congress thus created commercial monopolies that implied nothing about invention and therefore nothing about moral or intellectual property rights. Accordingly, religious leaders had no reason to object to these laws.
[Mark Sagoff, Patented Genes: An Ethical Appraisal]
As an earlier commentator had similarly noted, the “patent scheme recognizes the investment of time and money by the patentee and protects him from easy and inexpensive duplication of his invention by others, the fear of which would encourage the patentee’s keeping his invention a secret. Thus, the effect of the patent system is to assure an open marketplace for technological ideas.”
As one federal judge long ago noted, plant breeders had not originally benefited from the intellectual property protection systems because that produced by plant breeders lies in a twilight zone between that naturally occurring and that manufactured by an inventor:
The law, as propounded by the Supreme Court, defines three alternatives. Between true “products of nature” and statutory subject matter or “manufactures” lies an intermediate category of things sufficiently modified so as not to be products of nature, but not sufficiently modified so as to be statutory “manufactures.” … The present case focuses on the degree and nature of modification necessary to convert an admittedly unpatentable living thing into statutory subject matter.
[Application of Chakrabarty, 571 F. 2d 40, 45 (CCPA 1978)((Baldwin, J, dissenting)]
Therefore, the Plant Patent Act was necessary to protect inventions, discoveries, developments and the like that fit into that intermediate category, and therefore not fully into the statutory requirements for patenting.
Congress took that action, convinced that the plant breeding process, though imperfectly consonant with then-existing law, was sufficiently inventive to merit protection for this economically important field:
[i]nvention as applied to plant patents comprises the same two inventive acts which are required in other patents: conception and reduction to practice. Conception is the recognition that a new variety exists, and reduction to practice consists of asexual reproduction of the new variety.
[Hayman, Botanical Plant Patent Law, 11 CLEV.-MAR. L. REV. 430, 436 (1962)]
Thus, Congress eased and molded some existing patent concepts to ensure protection was afforded here. See Diamond v. Chakrabarty, 447 US 303, 311-312 (1980).
The Plant Patent Act of 1930 stepped into the more general patent arena perhaps because “plant breeding require[d] innovation different in kind and degree from that needed to obtain a patent under section 101,” and there seemed an economic imperative to nonetheless protect newly developed plants from uncompensated mimicry, as noted in the April 1930 Report by the Senate’s Committee on Patents:
The purpose of the bill is to afford agriculture, so far as practicable, the same opportunity to participate in the benefits of the patent system as has been given industry, and thus assist in placing agriculture on a basis of economic equality with industry. The bill will remove the existing discrimination between plant developers and industrial inventors. To these ends the bill provides that any person who invents or discovers a new and distinct variety of plant shall be given by patent an exclusive right to propagate that plant by asexual reproduction; that is, by grafting, budding, cuttings, layering, division, and the like, but not by seeds.
[Legislative History Report and Analysis of Public Law 71-245, at 53]
The whole idea was the “stimulation of plant breeding” and protection of its practitioners as economic actors, as the same Report noted:
To-day the plant breeder has no adequate financial incentive to enter upon his work. A new variety once it has left the hands of the breeder may be reproduced in unlimited quantity by all. The originator’s only hope of financial reimbursement is through high prices for the comparatively few reproductions that he may dispose of during the first two or three years. After that time, depending upon the speed with which the plant may be asexually reproduced, the breeder loses all control of his discovery. Under the bill the originator will have control of his discovery during a period of 17 years, the same term as under industrial patents. If the new variety is successful, the breeder or discoverer can expect an adequate financial reward. Today plant breeding and research is dependent, in large part, upon Government funds to Government experiment stations, or the limited endeavors of the amateur breeder. It is hoped that the bill will afford a sound basis for investing capital in plant breeding and consequently stimulate plant development through private funds.
In addition, the breeder to-day must make excessive charges for specimens of the new variety disposed of by him at the start in order to avail himself of his only opportunity for financial reimbursement. Under the bill the breeder may give the public immediate advantage of the new varieties at a low price with the knowledge that the success of the variety. will enable him to recompense himself through wide public distribution by him during the life of the patent. The farmers and general public that buy plants will be able promptly to obtain new improved plants at a more moderate cost.
[Legislative History Report and Analysis of Public Law 71-245, at 53-54]
The act passed and was signed into law, in 1930.
One may wonder why they are reading such legislative history now. I highlight it after reading Max Bennett’s A Brief History of Intelligence: Evolution, AI, and the Five Breakthroughs That Made Our Brains (2023), a gift from a thoughtful colleague. Bennet’s book is about the five breakthrough points along the evolution of biological intelligence and brain development. He makes the point (at 362-63) that “the sixth breakthrough will be the creation of artificial superintelligence …, the transition of intelligence—made in our image—from a biological medium to a digital medium…And so we stand on the precipice of the sixth breakthrough in the story of human intelligence, at the dawn of seizing control of the process…,” yet we seem to be squabbling over little questions and small definitions rather than the big, important, value-laden ones. Asking as to a generative-AI assisted work, “Is it copyrightable?” is a small-ball, tree-level question, to mix metaphors. “Should we protect it?” and “How should we protect?” are taking a fuller swing at the issue, and adding to our understanding of the forest, to keep the mix of metaphors going. The point of Bennet’s book is that understanding where to go with artificial intelligence should draw information and inspiration from where we have been with biological intelligence. I am just extending that notion drawing upon what we have seen in the genetic resource area, and, as we know turn toward, the plant patent world.
The Plant Patent Act is an example of where a more productive conversation, a fuller swing, occurred. There, folks stepped back to ask how to protect and incent the creation of works of scientific and economic importance, even if they did not fit neatly into then-present standards on patenting and copyrightability. The same conversation should occur for works based on, or assisted by, artificial intelligence. The conversation should focus on establishing the right, new protections for generative AI-assisted works rather than on how old forms of protection may be stretched and twisted to cover such works. The economic imperatives are there, and we ought to take care not to be governed by old rules with such new technologies—”there is a risk of locking into established technology standards which could be harmful if markets lock into inefficient standards,” as Walter Park has noted. So whether it is how the US Congress should approach this, or whether WIPO should approach these issues in the way it approached genetic resources and traditional knowledge, that is the suggestion. And the hope is that something gets done in a lot less than twenty-five years, especially if we understand the detailed negotiation history of that treaty and learn from it.
I know that I have said this before, noting roughly fifteen months ago that “[t]he economic realities present suggest that some protected status, whether in copyright itself or in some other form makes sense. I draw the analogy to what happened in the patent field where many long debated whether plant patents were obtainable since the novelty was not created by an inventor but, many would argue, by nature. But giving periods of exclusivity to those who wished to do painstaking, long work of plant cross-breeding and genetically modifying organisms was a necessary incentive to spur investment, as Wen Zhou has discussed. Just as ‘Congress passed the Plant Patent Act in 1930 as a result of plant breeding and other agricultural efforts, making new plant strains derived from crossbreeding patentable,’ Id., some modification of, or supplement to, the Copyright Act to make some level of AI-generated images and texts protected seems an economic inevitability.” So I am a bit of a broken record I guess, and just increased the length of this plea from a traditional 45 (a dated reference I know) to an EP.
WIPO itself in a 2024 publication suggested (at 25) that, “As part of a holistic approach to AI regulation, policymakers may want to consider the economic incentives they would like to set in the field of AI innovation. IP laws can then be fine-tuned to achieve these outcomes…. Policymakers should think beyond the binary question of whether an AI system can or should be named as the inventor on a patent application or not,” or the author of a copyright or not. The thought here was that a more detailed drawing of the analogy to the Plant Patent Act was necessary because we need to avoid putting all our hopes into stretching the existing copyright and patent boxes to house such rights. Perhaps we must simply start to think outside those boxes and find another name, another way to give statutory protections to those who do painstaking, long work of generating works through progressive prompting of generative AI, and who make the ultimate creative decision of when a work is complete. We need, as WIPO noted (at 26), to be “considering a broader range of options,” from (i) allowing only humans to be inventors or authors (at 26-27), (ii) to revising patent/copyright laws to allow an AI system to be named as a sole or co-inventor or author (at 28-29), (iii) to revising patent/copyright laws to require a person to be named, while recording the contribution of an AI system (at 29), (iv) to establishing a sui generis law for AI‑generated inventions and works of authorship (at 30). The right answer lies on this continuum and is probably closer to the last two items than those that preceded them.
Indeed, the essential human contribution to any generative-AI-assisted work is to know when to stop prompting. Thus, the human prompter is always an important, defining creator of the work, and never, as I noted previously, a dunsel. As the “mythical incorruptible artist,” Nico Tanner, who burst onto Billions with his Implosion paintings, noted, trusting your “instincts and intuition when it comes to knowing when an artwork is complete” defines what it means to be an artist:
[Nico Tanner:] You know what question really drives me insane… and it happens every goddamned time? It’s “How do you know when it’s finished?”
[Jill:] Yeh, well, sometimes it is hard to tell.
[Wags] …She’s talking about a Jackson Pollock we saw at a gallery.
[Jill:] Yeh. Why not three splatters less? Or two more?
[Nico Tanner:] That’s what makes Pollock Pollock, right? He can just stare at it and say “That’s it. It’s complete. It’s finished.” That’s what makes you an artist. Otherwise, you’re nothing.
[05X07-The Limitless Sh*t, Billions Transcripts; see also The Limitless Sh*t, YouTube-Paramount Plus]
Tanner knew, even if Jackson Pollock wasn’t so sure.
We can learn something from all of this.
I am done with this blog piece,…not another splatter.
