US-Peru Deal Includes First-Ever Traditional Knowledge Provisions

By Martin Vaughan for Intellectual Property Watch

Washington, DC-In a bilateral free-trade agreement struck this week with Peru, the United States for the first time agreed to language relating to traditional knowledge, according to a Peruvian government source.

The language, which appears in a side letter to the overall agreement, apparently stresses the importance of such practices as informed consent, benefit-sharing, and utilization of contracts with the aim of encouraging the protection of biodiversity.

The fact that the provisions are in a side-letter, not incorporated as an article in the chapter on intellectual property rights, raises questions about their enforceability on a par with other provisions of the agreement. But US officials have insisted in other trade deals that commitments in side letters are not weaker than those in agreement text.

There also is mention of a database that US patent applicants will consult to see if there is evidence of prior art, the source said.

The latest text of the agreement has not yet been made public, as negotiated agreements typically receive legal scrutiny and wrangling over final details before being released.

The United States had been negotiating with several Andean countries together, but completed the deal with Peru after the others showed resistance to intellectual property rights terms, among other issues (IPW, Bilaterals, 9 December).