[Conference Report] WIPO Diplomatic Conference on Genetic Resources and Traditional Knowledge accelerates pace of negotiations - Week 1

After two decades of discussion, studies, and negotiations, WIPO is finally hosting the Diplomatic Conference on Genetic Resources and Associated Traditional Knowledge at its headquarters in Geneva from 13-24 May. This builds on the work of the WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC), established in 2000. 

As this Kat previously reported, the purpose of the Diplomatic Conference is to undertake the final stage of negotiations for an international legal instrument that aims to “enhance the efficacy, transparency and quality of the patent system,” and “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 Kat has been following this week's proceedings via the WIPO Webcast.

Opening the Conference

Image from BiancaVanDijk via Pixabay.

The Diplomatic Conference opened with a welcome from the WIPO Director General, Daren Tang, who underlined that:

At this Diplomatic Conference, we can show that there is no contradiction between a robust and predictable IP regime – one that incentivizes innovation, attracts investments and drives game-changing research – and one that responds to the needs of all countries and their communities everywhere, including those from Indigenous Peoples as well as from Local Communities. A more inclusive and diverse IP system is not just a more dynamic IP system, it is a stronger IP system.

This was followed by Indigenous blessings from Medado Pin Cajape (Representative, Comisión jurídica para el autodesarrollo de los Pueblos Originarios Andinos (CAPAJ)) and Ninawa Inu Pereira Nunus Huni Kui.

By consensus, Guilherme de Aguiar Patriota (Ambassador and permanent representative of Brazil to the World Trade Organization) was elected as the President of the Conference. The Ambassador was clear that this should be a flexible, inclusive and constructive conference, and sought to conduct the opening plenary sessions in a manner where "No one was rushed, no one was hushed." 

In accordance with that principle, during the first two days of the conference, we heard opening remarks from various states, observers, and representative groups. Professor Chidi Oguamanam (University of Ottawa) has summarised the themes from the opening statements here. There was overwhelming support for the negotiations, but also a few concerns. For instance, the South Centre advocated for clarity that the disclosure requirement would apply to digital sequence information, whilst the Innovation Council emphasised the need for legal certainty and that the instrument "should not create undue burdens for patent users and offices."

The Basic Proposal

Ambassador Patriota noted that "We cannot deal with all of the world's rights or wrongs in a single instrument." Instead, the Diplomatic Conference is focusing on a narrow "Basic Proposal" (see the full text and the executive summary). This was largely based on a text prepared by former chair of the IGC, Ian Goss (Australia). A key aspect of the Basic Proposal is an international disclosure requirement for patent applications (Article 3):

• For inventions [materially/directly] based on genetic resources, applicants would be required to disclose the country of origin, or if that is unknown, the source of the genetic resources.
• Likewise, for inventions [materially/directly] based on traditional knowledge associated with genetic resources, the applicant must disclose the Indigenous peoples or local community that provided the knowledge, or if the origin is unknown, the source of the knowledge.

The provision would not be retroactive (Article 5). Although parties will be required to impose sanctions or remedies for failure to comply with the provision, the consequences cannot include revoking or rendering the patent unenforceable solely on the basis of a failure to disclose unless there has been fraudulent intent (Article 6).

The Basic Proposal also suggests options like the establishment of information systems (such as databases) of genetic resources and traditional knowledge associated with genetic resources (Article 7). Finally, the instrument contains a review mechanism (Article 9) to deal with emerging issues, such as the possible extension of the disclosure requirement to other areas of intellectual property. 

The Side Events

Exhibition in the WIPO Main Lobby
displaying Indian geographical indications
Photo courtesy of Thiru Balasubramaniam
(Knowledge Ecology International)

The Conference has been accompanied by side events, such as a panel on the topic “How can International Law Promote Innovation on Genetic Resources and Benefit Sharing while Recognizing the Rights of Traditional Knowledge Holders?” organised by the South Centre and Vrije Universiteit Brussel. During the panel, Professor Daniel Robinson (UNSW) presented empirical research on the trends in patent applications for inventions based on culturally-important plants from the Pacific Islands to demonstrate the potential role of a disclosure of origin requirement in identifying misappropriation. The discussion also engaged with the topics of farmers' breeding, digital sequence information, and marine genetic resources.

Throughout the two weeks, WIPO is also co-hosting several exhibitions, including “The Power of Polish Tech” (Poland), “Intellectual Property, Genetic Resources and Associated Traditional Knowledge” (Brazil), and “Ancient Wisdom, Modern Landscape: Building A Sustainable Future” (India). The Indian exhibition opened alongside the launch of the Catalogue of Geographical Indications (see picture).

The Negotiations

There are 1200 registered delegates at the conference. The negotiations are taking place through two committees, with most of the discussion is taking place informally, but with daily updates to report on progress to ensure transparency. During the plenaries on Days 4 and 5, Ambassador Patriota spoke in support of the change of methodology in the committee discussions that aimed to increase the pace of progress.

Main Committee 2 is dealing with procedural aspects of the treaty in Articles 11-23, under the presidency of Vivienne Katjiuongua (Namibia). The topics include ratification and accession to the treaty, the role of the WIPO International Bureau, and the Assembly of the contracting parties. Many of these are standard provisions in international treaties and have already been approved and adopted (Articles 12, 17, 22, 23 and several sub-articles). Several articles still provoked questions and debate (especially Article 14.2), but these do not warrant detailed attention at this stage.

Main Committee 1 is dealing with the substantive provisions in Preamble and Articles 1-10, under the presidency of Jodie McAlister (Australia). She suggested that the discussions be organised into three clusters of issues: the disclosure requirement (Articles 3, 4, 5, 6), information systems (Article 7) and the nature, scope and objectives (Preamble, Articles 1, 8, 9, 10). 

In opening the discussions, Ms McAllister noted that a disclosure of origin requirement would be "a really important step forward in the recognition of the role of indigenous innovation in the patent system." However, she emphasised that the instrument would need to ensure the policy space and flexibility to allow countries to adapt the instrument to their national laws and circumstances. At this stage, the reports from the plenary sessions indicate:

• Article 3 - there is some coalescing on the terms, including the definition of the trigger. 
• Article 4 - discussion about possibly deleting this article if the instrument is agreed to be a transparency mechanism only. The version of the article in the Basic Proposal allows states to adopt "justifiable exceptions and limitations necessary to protect the public interest." 
• Article 6 - there is debate about sanctions and remedies, especially about the options for patent applicants to rectify failures to include disclosure of origin.
• Article 7.3 - while the rest of the article is agreed, there are still divergent views about the final provisions on information systems.

This Kat will report again next week at the conclusion of the Diplomatic Conference. Stay tuned!