27/05/2024
Highlights of the new World Intellectual Property Organization Treaty on Intellectual Property, Genetic Resources and Associated Traditional Knowledge.
WIPO member states have concluded negotiations on the historic Treaty on Intellectual Property, Genetic Resources and Associated Traditional Knowledge. The Treaty is aimed at creating intellectual property (IP) protections for traditional and indigenous knowledge in innovation, safeguarding the interests of Indigenous peoples and local communities.
Genetic Resources refers to genetic material of actual or potential value. One such example which has been the subject of much debate in Botswana is ‘sengaparile’ (devil’s claw) (and its actual/potential medicinal applications). The Treaty covers the use of such material in patent applications, and the traditional knowledge involved in the claimed invention.
In its Preamble, the Treaty recognizes and reaffirms that the IP system “plays in promoting innovation, transfer and dissemination of knowledge and economic development, to the mutual advantage of providers and users of genetic resources and traditional knowledge associated with genetic resources”, and affirms that “best efforts should be made to include Indigenous Peoples and local communities, as applicable, in implementing [the] Treaty”
Article 3 of the Treaty obliges contracting states to require, where a claimed invention is based on genetic resources, disclosure of the country of origin of the genetic resources or the source of the genetic resources such as a research center, gene bank or local communities. Where a claimed invention in a patent application is based on traditional knowledge associated with genetic resources, contracting parties must require applicants to disclose the Indigenous Peoples or local community who provided the traditional knowledge associated with the genetic resources, or the source of the traditional knowledge associated with the genetic resources.
Article 5 requires Contracting Parties to put in place appropriate, effective and proportionate legal, administrative, and/or policy measures to address a failure to provide the information required. The Treaty however also provides that Patent rights shall not be revoked solely on the basis of failure to provide the required information, and further gives contracting parties to the right to provide for sanctions or remedies where there has been fraudulent intent in regard to the disclosure requirement.
The Treaty a great step towards recognizing the role of indigenous and traditional knowledge in innovation. In the words of WIPO Director General Daren Tang the Treaty shows that "...the IP system can continue to incentivize innovation while evolving in a more inclusive way, responding to the needs of all countries and their communities.” Botswana was represented at the negotiations by the C**A - Companies and Intellectual Property Authority - Botswana.
