Revision Of WIPO Draft Treaty On Genetic Resources Advances, Heads For Next Meeting

After a difficult start to the week, World Intellectual Property Organization delegates on 23 March agreed on a revision of a set of articles of a potential treaty preventing the misappropriation of genetic resources through IP protection. The revised text will serve as a basis for further discussions at the next session of the WIPO committee dealing with the protection of genetic resources, in June.

The 35^th session of the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) took place from 19-23 March.

As stated in the list of decisions [pdf] issued on 23 March, the second revision [pdf] of the Consolidated Document [pdf] Relating to Intellectual Property and Genetic Resources will be transmitted to the 36^th session of the IGC, scheduled for 25-29 June.

Also approved by the IGC, and as stated in the decisions, is the establishment of an ad hoc expert group(s), according to the proposal [pdf] tabled on 23 March by Australian Ian Goss, chair of the IGC. The expert group will hold an all-day meeting on 24 June, preceding the next IGC.

The first revision of the text did not meet member states’ approval. Paul Kuruk, from Ghana, named as facilitator by the IGC chair, and Margo Bagley from Mozambique, friend of the chair, had to go back to the drafting board and start anew from the Consolidated Document [pdf] Relating to Intellectual Property and Genetic Resources inherited from the last session of the IGC in June 2016 (IPW, WIPO, 23 March 2018).

The second revision (Rev2) was tabled on 23 March and met the broad approval of member states. Many of them provided comments on their remarks and preferences.

After Rev1 failed to meet the approval of Like-Minded Countries (LMCs) on 21 March, Goss changed the process and convened contact groups composed of various member states, who worked on the original consolidated document and provided inputs to the facilitator and the friend of the chair for the second revision (IPW, WIPO, 22 March 2018).

This new process was commented on positively by a number of delegates.

New Articles

Rev2, as presented by Kuruk on 23 March, contains two more articles than the original consolidated text. One of the new articles (Article 1 – Definition) is a list of terms, divided into “terms used in the operative articles,” and “other terms.”

Terms used in the operative articles include traditional knowledge associated with genetic resources, country of origin, (invention) directly based on, genetic material, genetic resources, erroneous grant/granting of patents, utilisation, and source.

The second list includes biotechnology, derivatives, misappropriation, (physical) access, and unauthorised use.

Physical access is favoured by some countries, such as in the European Union. This is disputed by some developing countries, demandeurs of the treaty. They argue that with the possibility of mapping and sequencing genes, physical access to GR is not necessary to obtain such gene sequences and appropriate GR without the consent of the GR owner(s).

The European Union said it would prefer the definition of physical access to be included in the list of terms used in operative articles.

Ecuador, speaking on behalf of the Group of Latin American and Caribbean countries (GRULAC), said they would prefer that the definition of derivatives be placed in the operative articles. Indonesia and Brazil shared the same request.

Derivatives of genetic resources are defined as follows in Nagoya Protocol [pdf] on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the Convention on Biological Diversity: “a naturally occurring biochemical compound resulting from the genetic expression or metabolism of biological or genetic resources, even if it does not contain functional units of heredity.”

Lithuania, speaking on behalf of the Central European and Baltic States group, said derivatives should not be included in the definition of genetic resources.

The issue of derivatives was also a difficult issue during negotiations leading to the Nagoya Protocol in 2010 (IPW, Biodiversity/Genetic Resources/Biotech, 21 October 2010).

Switzerland questioned the content of Article 1 because the delegation found that it is unclear what terms and definitions will be used for, which could have far-reaching implications, according to the delegate.

Switzerland also called attention to terms already defined by international agreements to which many WIPO countries are party.

The second article added by the facilitators following a request from a delegation is a new Article 9 (preventive measures for protection), which states [Genetic resources as found in nature or isolated therefrom [shall]/[should] not be considered as [inventions] [IP] and therefore no [IP] [patent] rights [shall]/[should] be granted].]

This article brought concerns from some developed countries.

According to the mandate of the IGC, which was renewed for two years during the annual WIPO General Assembly last October, the IGC should meet twice during the biennium on each subject: Genetic resources, traditional knowledge, and traditional cultural expressions (TCEs). The IGC is then expected to submit the result of its work on the three draft texts to the 2019 WIPO General Assembly for consideration of whether a diplomatic conference (high-level negotiating meeting) should be convened.

 

Image Credits: Catherine Saez