The protection of genetic resources, traditional resources and folklore 35 meetings later…

In a few days it  will be time for the next meeting (the 35th one in fact) of the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore. Between the 19^th and the 23^rd of March, the members of the Intergovernmental Committee will convene in Geneva to discuss issues related to the protection of traditional knowledge, genetic resources and traditional cultural expressions. (This body is a WIPO Intergovernmental Committee with the mandate to conduct text-based negotiations for the adoption of legal instruments for the protection 

of traditional knowledge, genetic resources and folklore).

A quick review of the agenda reveals that the majority of issues that will be discussed are reports on the implementation of earlier decisions. Some of them are based on and refer to decisions that were adopted already in 2001.

In addition to the usual agenda points concerning the accreditation of organisations, the participation of indigenous communities and the discussion on voluntary funding to enable their participation, this meeting will consider the following documents:

GLOSSARY OF KEY TERMS RELATED TO INTELLECTUAL PROPERTY AND GENETIC RESOURCES, TRADITIONAL KNOWLEDGE AND TRADITIONAL CULTURAL EXPRESSIONS (read here)

This 47-long page document includes a long list of definitions of key terms used with regards to the exploitation of traditional knowledge, genetic resources and traditional cultural expressions as well as those that concern mechanisms used in order to facilitate the fair and equitable sharing of the benefits arising thereof. The glossary is a revised and updated version of earlier documents with similar content. It is not a surprise that the glossary adopts definitions that have been previously used by other major international legal instruments, such as the Berne Convention, the FAO International Treaty on Plant Genetic Resources for Food and Agriculture and the (UNESCO) Recommendation on the Safeguarding of Traditional Culture and Folklore.

Although 47 pages of glossary might seem nothing more  than an expression of exaggerated formalism, reaching consensus on the meaning of terms that are part and parcel of the structures for  providing adequate protection for traditional knowledge, genetic resources and folklore has proven a daunting task. As stated in the document, even the fundamental term of “traditional knowledge” does not enjoy a definition that is acceptable by all. A disappointing statement one would say after over 17 years of negotiations.

RESOURCES AVAILABLE ON THE WIPO TRADITIONAL KNOWLEDGE,  TRADITIONAL CULTURAL EXPRESSIONS AND GENETIC RESOURCES WEBSITE (read here)

This document provides a review of available resources  on the WIPO website, databases, materials and information that may be accessed by visiting www.wipo.int. It also presents a series of available activities, such as seminars, workshops and publications.

REPORT ON THE IMPLEMENTATION OF CLUSTER C ACTIVITIES (“OPTIONS ON MUTUALLY AGREED TERM S FOR FAIR AND EQUITABLE BENEFIT-SHARING”) (read here)

This very short document confirms that the IGC Secretariat continues to work on the accessibility and further use of online contractual clauses and guidelines for the drafting and negotiation of benefit sharing agreements. Nothing new here, it is just keeping up with the previous contributions.

REPORT ON THE  COMPILATION OF MATERIALS ON DATABASES RELATING TO GENETIC RESOURCES AND ASSOCIATED TRADITIONAL KNOWLEDGE (read here)

This document  includes a list of resources (documents developed   both by the Secretariat as well as such those that have been proposed by Member States), concerning the documentation of traditional knowledge and genetic resources as well as the compilation of such knowledge in databases.

REPORT ON THE COMPILATION OF MATERIALS ON DISCLOSURE REGIMES RELATING TO GENETIC RESOURCES AND ASSOCIATED TRADITIONAL KNOWLEDGE  (read here)

This report includes all relevant resources and activities by  WIPO and Member States concerning disclosure requirements and their connection to the patentability of inventions based on TK. In addition to discussing  relevant  regional and national initiatives, there is also a database with national legislation regulating the disclosure requirement. 

PROPOSAL FOR THE TERMS OF REFERENCE FOR THE STUDY BY THE WIPO SECRETARIAT ON MEASURES RELATED TO THE AVOIDANCE OF THE ERRONEOUS GRANT OF PATENTS AND COMPLIANCE WITH EXISTING ACCESS AND BENEFIT-SHARING REGIMES (read here)

This document, submitted by the delegations of Canada, Japan, Norway, the Republic of Korea, the Russian Federation and the United States of America concerns a proposal for a further study to be based on national experiences as they relate to a set of questions concerning the disclosure requirement and the effect it has had in practice. Some of the questions posed are of considerable interest according to this Kat, namely: 

“If there was a disclosure requirement, did the Office also require disclosure of prior art that is material to the patentability of the invention? If not, what was the basis for having a disclosure requirement of the source of GR and/or TK, but not on prior art that is material to patentability? Does disclosure improve examination? How often was the source or origin material to patentability? For countries whose IP law requires disclosure, was there also a national law related to misappropriation or misuse of GR and/or TK?

Does the Office provide a mechanism for third parties to submit information material to patentability to a patent application?”

Such a review  could provide interesting insights into the link between the protection of TK and genetic resources and the patentability of inventions. One aspect that, surprisingly to his Kat, is omitted t of the long list of questions  regarding  how the Nagoya Protocol (available here) has been implemented and whether it has had any impact  on how the disclosure requirement is applied and on the effects that it has had.

  

The 35^th meeting of the Intergovernmental Committee; a step closer to the protection of traditional knowledge? 

What will this IGC meeting bring?

From the documents submitted, a major part of the 35^th meeting of the Intergovernmental Committee will be dedicated to discussing past decisions and activities (some of them already 15 years old).  It  does not seem that the Committee will include the discussion of any novel documents.   Still, planning for a future study on the disclosure requirement is a necessary step in getting a grip on whether twenty years of negotiations in the Committee, as well as the entry into force of the Nagoya Protocol (which in fact omits reference  to the patent-related aspects of the disclosure requirement), have had an impact on this  concrete link between the protection of TK and genetic resources and the patent system. And yes, this might be a step closer to the protection of traditional knowledge, even if it is a tiny one.