Context: The Treaty on Intellectual Property, Genetic Resources and Associated Traditional Knowledge was agreed upon by Diplomatic Conference hosted by World Intellectual Property Organisation (WIPO). The treaty was first proposed in 1999 by Colombia, calling for recognition of intellectual property of indigenous peoples and local communities. The negotiations started in 2001.
Objectives of WIPO Treaty on Genetic Resources & Traditional Knowledge (GRATK)
- Promotion of efficacy, transparency and quality of patent system in relation to genetic resources and traditional knowledge.
- Protection of genetic resources and traditional knowledge associated with genetic resources.
- Prevention of patents being granted erroneously for inventions that are not novel or inventive with regard to genetic resources and traditional knowledge related to genetic resources.
- International disclosure related to genetic resources and associated traditional knowledge in patent applications contributes to legal certainty and consistency
Salient Features of GRATK
- Mandatory Patent Disclosure Requirement: The treaty establishes a mandatory patent disclosure requirement requiring patent applicants to disclose the country of origin of genetic resources and/or the Indigenous people or local community providing the associated traditional knowledge.
- Sanctions and Remedies:
- Failure to disclose required information would be subject to appropriate, effective and proportionate measures.
- Patent applicants would have the opportunity to rectify a failure to disclose the requirement information unless
- Information Systems:
- Voluntary establishment of information systems (ex databases) of genetic resources and associated traditional knowledge, in consultation with indigenous people and local communities, wherever applicable.
- Genetic resources databases can compile and reference a wide range of information. Ex. Information about genetic resources, associated traditional knowledge, known uses of genetic resources and relevant scientific compilations.
- Information systems should be accessible to patent offices for search and examination of patent applications.
- Non-retroactivity: No obligations of the Treaty would be imposed in relation to patent applications filed prior to entry into force of this treaty.
- Review Mechanism: The treaty provides an in-built review mechanism to allow certain issues to be reviewed like extension of disclosure requirement to other areas of intellectual property and other issues like new and emerging technologies four years after the entry into force of the treaty.
Significance of the GRATK
- Significant win for countries of Global South and India which are host bulk of global biodiversity and traditional knowledge. India being a megadiverse country holds 7-8% of global biodiversity and a rich repertoire of knowledge based on genetic resources.
- First WIPO treaty to address the interface between intellectual property, genetic resources and traditional knowledge. Also, first WIPO treaty to include provisions specifically for indigenous people and local communities.
- Multilateralism: Given the opposition of advanced countries like USA, EU and Japan for this treaty and the divided world we live in, the fact that a consensus treaty could emerge is a win and provides hope of the spirit of multilateralism.
Concerns with the Treaty
- Fails to address biopiracy due to weak sanctions regime: The WIPO Treaty suffers from a weak sanctions regime which is not adequate address the issues of bio-piracy. Some issues with the sanctions regime of the treaty are:
- No provision for penalties for non-disclosure.
- Countries to provide opportunity for rectification of failure to disclose information before implementing sanctions.
- No obligation on patent offices to verify the authenticity of disclosure.
- No country can revoke, invalidate or render unenforceable conferred patent rights solely on the basis of applicant's failure to provide mandatory patent disclosure.
- No provision for revocation of patent except when the information is withheld due to fraudulent intentions. Even in such cases, the treaty leaves it to the State to decide on the sanctions to be imposed.
- Silent on positive protection of traditional knowledge for indigenous people and local communities (IPLC):
- No recognition of traditional knowledge as intellectual property of IPLC which would have provided indigenous people with exclusive collective rights to control their traditional knowledge.
- No fair & equitable sharing of benefits in favour of IPLC in return of use of their traditional knowledge.
- Silence on right of attribution and right to use of their own traditional knowledge for IPLC.
- Fails to protect traditional cultural expressions i.e., the forms in which IPLC express their traditional cultural practices and knowledge like music, dance, art & handicrafts.
- Dilution of India's patent laws: India would need to align its domestic laws like Patents Act & Biological Diversity Act with the WIPO Treaty on Genetic Resources and Associated Traditional Knowledge. These amendments could potentially dilute existing protections aiming to safeguard traditional knowledge and genetic resources. For example, India's Patent Law already provides for pre-grant opposition against non-disclosure of source of origin and also for a revocation of granted patent for non-disclosure of information.