Intergovernmental Committee (IGC) on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore. Is the thirty-eight session going to be the lucky one?

The Intergovernmental Committee convened in Geneva, Switzerland between the 10th and the 14th of December 2018 for its thirty-eight session. The agenda of the meeting is considerably long, once again discussing inter alia subjects of  direct relevance to the future of the traditional IP system as we know it.

Notable in this regard were the discussions on well-known issues for the IGC, such as the protection of traditional knowledge, genetic resources and the status of databases relating to genetic resources and associated traditional knowledge. Below  is  an overview of the most important documents discussed. You will find the fulltext version of all documents HERE.

THE PROTECTION OF TRADITIONAL KNOWLEDGE: DRAFT ARTICLES

This document prepared by the Secretariat, concerns the revised version of the Draft Articles negotiated during the previous IGC meeting (27-31^st of August 2018).

THE PROTECTION OF TRADITIONAL CULTURAL EXPRESSIONS: DRAFT ARTICLES

As with the previous document, the Draft Articles as revised during the previous IGC meeting were 

transmitted to the current IGC meeting agenda for further discussion.

THE PROTECTION OF TRADITIONAL KNOWLEDGE: UPDATED DRAFT GAP ANALYSIS

The task of the Secretariat with respect to the specific document is to:

(a) describe what obligations, provisions and possibilities already exist at the international level to provide protection for traditional knowledge (TK); (b) describe what gaps exist at the international level, illustrating those gaps, to the extent possible, with specific examples; (c) set out considerations relevant to determining whether those gaps need to be addressed; (d) describe what options exist or might be developed to address any identified gaps, including legal and other options, whether at the international, regional or national level; (e) contain an annex with a matrix corresponding to the items mentioned in sub paragraphs (a) to (d), above.

 The same document was prepared for the Thirteenth IGC meeting held in 25^th to 28^th February 2008, and thus the current version has preserved the structure and content of the earlier  document. The  only  newly added elements were legislative (international, regional and national) developments with impact in the field, such as  the Nagoya Protocol. Thus, the specific document constitutes more of an updating than a new production.   

THE PROTECTION OF TRADITIONAL CULTURAL EXPRESSIONS: UPDATED DRAFT GAP ANALYSIS

This document is the corresponding document as the previous one on Traditional Knowledge, with the Secretariat having the limited mandate of updating the original document produced for the February 2008 IGC meeting.

REPORT ON THE COMPILATION OF MATERIALS ON DATABASES RELATING TO GENETIC RESOURCES AND ASSOCIATED TRADITIONAL KNOWLEDGE

The report of the Secretariat provides a detailed review of the work done in the field by the IGC and the member states (including seminars, activities at  the WIPO and regional/national level), as well as a reference to all documents submitted and discussed in the Committee  regarding databases relating to genetic resources and traditional knowledge.

The agenda of the meeting included two documents with direct relevance to the functioning of the patent system, namely: THE ECONOMIC IMPACT OF PATENT DELAYS AND UNCERTAINTY: U.S. CONCERNS ABOUT PROPOSALS FOR NEW PATENT DISCLOSURE REQUIREMENTS, submitted by the US Delegation and 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 SYSTEMS, submitted by the delegation of Canada, Japan, Norway, the Republic of Korea, the Russian Federation and the United States of America.

The former document  concerns the negative effects of the uncertainty of the scope and application of the disclosure requirement required s for patent applications. In particular, the document refers to the economic impact on firms due to delays of patent application and the effect this has  on employment and product sales’s rates.

The second document concerns a request submitted by the above-mentioned delegations to the Secretariat of the IGC asking for mapping  the experience of jurisdictions that have introduced a disclosure requirement in their national patent examination procedures. These delegations posed a series of  probing  questions relating to how the disclosure requirement is interpreted and applied in practice, as well as a collection of experiences regarding potential difficulties  not envisaged at the outset that have arisen.

A  collection of experiences and concrete examples of legislation is the objective of the request set out  in  the document, entitled   PROPOSAL FOR A STUDY BY THE WIPO SECRETARIAT ON EXISTING SUI GENERIS SYSTEMS FOR THE PROTECTION OF TRADITIONAL KNOWLEDGE IN WIPO MEMBER STATES, submitted  by the delegations  from the United States of America and Japan. The Secretariat is requested to collect information from those  member states with current,  sui generis legislation related to the scope of protectable subject-matter and the practical application of the system as such.

Finally, the document entitled IDENTIFYING EXAMPLES OF TRADITIONAL KNOWLEDGE TO STIMULATE A DISCUSSION OF WHAT SHOULD BE PROTECTABLE SUBJECT MATTER AND WHAT IS NOT INTENDED TO BE PROTECTED, submitted by the delegation of the United States of America, which seeks  to initiate a  salient discussion regarding  which products or services, originating in or based on traditional knowledge are to be included by the presumptive future system of protection. The document includes a list of such products, including chocolate, coffee, surfing, chewing gum and rubber, to illustrate how broad the scope of protectable subject-matter could potentially be.

The work of the IGC and the impact on the IP system. Hot getting hotter?

This Kat waits with anxiety the "to be continued" of the IGC

The agenda of the thirty-eight IGC meeting includes several interesting discussion points of relevance and importance for the IPR system. This IPKat notes with increasing interest the initiatives undertaken by the US delegation,  which are both important and relevant for the future of the IGC negotiations. The sensitive nose of this Kat says…new Trump agenda bringing changes? Well, we will soon see…

It seems that the work of the IGC is moving closer and closer to the core of the challenges  in reconciling the protection of traditional knowledge, genetic resources and traditional cultural expressions with the modern IP system. IGC hot, getting hotter?