WIPO Meets On Traditional Knowledge, Genetic Resources

By Tove Iren S. Gerhardsen
A longstanding committee of the World Intellectual Property Organization (WIPO) considering how traditional knowledge and genetic resources may best be protected against misuse has more on its plate than ever heading into the final meeting of its two-year mandate. But the eight-day meeting may not be enough time to complete work and an extension of the committee mandate has been suggested, sources said.

The 3-12 July meeting will be the 11th session of the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC). This meeting has been extended from the normal five days in order “to ensure all agenda items are fully addressed,” WIPO said (IPW, Biodiversity, 16 December 2006).

Main areas of the agenda are: Traditional knowledge (TK), traditional cultural expressions (TCEs)/folklore, and genetic resources. There is still no agreement on the “list of issues” and “objectives and principles” for these areas, and this will be discussed at the meeting. The outcome of the meeting will be sent to the WIPO General Assembly in September, which would decide on an extension of the mandate.

A developing country official said the chair would refer to two additional documents on genetic resources prepared for the meeting. The protection of genetic resources is expected to feature more prominently on the agenda at this meeting after the WIPO secretariat at the last meeting was requested to prepare a document on options for work on the link between IP and genetic resources. The documents address, among other things, the “interface between the patent system and genetic resources,” and international developments.

Many developing countries want the issue of genetic resources to be discussed at the World Trade Organization (WTO) instead, while most developed countries prefer WIPO, another source told Intellectual Property Watch. A group of developing countries is proposing an amendment to the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) to make it mandatory to disclose the origin of genetic resources, such as a plant extract used in a medicine, in patent applications.

A Swiss official said that all three issues should be “treated on an equal footing” at WIPO, which fits with the view that more emphasis be placed on genetic resources in the WIPO committee. Switzerland also thinks the renewal of the committee mandate for another two years is important, the official said.

Among the options listed in the WIPO genetic resources document are mandatory disclosure requirements as proposed by the European Union, databases, the development of case studies, recommendations or guidelines or mandatory requirements. The United States has previously focused on contractual agreements, and Australia on a database.

There also is a debate at the IGC about access and equitable benefit-sharing related to genetic resources, with countries like Canada, the European Union and the United States saying practices related to contracts should be non-binding, flexible and simple, according to WIPO.

IGC Outcome Difficult to Predict

There is no agreement on what should be the result of the IGC. Some are seeking an “international instrument(s)” that would be legally binding to those adhering to it, while others want a non-binding recommendation (“soft law”). A separate “diplomatic conference” would be required for a legally-binding treaty, WIPO said.

Other options under discussion are an interpretation (like the 2001 Doha Declaration on TRIPS and Public Health) or coordination of existing law or a political resolution. The secretariat has prepared a paper on possible outcomes covering issues such content, nature, format and status (for example, legal, political and ethical implications) and how the committee should work towards the outcome.

One developing country source told Intellectual Property Watch on 29 June that: “It seems as if the main focus of the IGC will be on the list of issues for TK and TCEs/folklore and the extension of the IGC’s mandate. However, after talking to a few delegates we are not confident how much progress can be made towards an international instrument at this stage.”

The coordinator of the African Group at WIPO (Algeria) told Intellectual Property Watch that they see the three issues as “one unit” and equal in importance, although it was not clear at this point whether there would be an instrument for each separately or together. He said the IGC had “already made some progress” on TK and TCEs/folklore, but was “a bit behind” on genetic resources.

He said the African Group wants a “legally binding instrument” as the “only way to protect” these areas from misuse would be to have international protection. Developing countries are concerned that outside parties base their patented inventions on genetic resources without permission or proper benefit-sharing. Some countries like Brazil have national legislation but argue that that is not enough as parties may go to a third country to file the patent application, where there is no requirement for disclosure, he said.

If WIPO adopted a treaty, it would be legally binding to those countries choosing to ratify and accede to it, but there would not be a dispute settlement mechanism as is found at the WTO.

The protection measures for genetic resources are already laid out in the United Nations Convention on Biological Diversity (CBD), which is legally binding to those having signed up, but the United States has not ratified it. The Food and Agriculture Organization (FAO) also works in this area.

Indonesia Meeting Precedes IGC

Indonesia, in collaboration with WIPO, held an 18-20 June meeting on genetic resources and TK issues with some 60 participants from 40 countries, according to the developing country source. The meeting had been set up by senior Asian and African officials a year ago, and experts from elsewhere also were invited. The source said a "Bandung Declaration" had been agreed to, but the meeting was not directly linked to the IGC, and other fora, such as the CBD, had also been discussed. It recognises the “urgent need” for international legal protection and calls on governments and international organisations to work towards this end.

Industry View

Jacques Gorlin of the American BioIndustry Alliance (ABIA) told Intellectual Property Watch that: “The ABIA views all three institutions – the WTO, CBD and WIPO – as playing critical roles in facilitating the discussion and improving the understanding among countries on the issues. While the ABIA is monitoring developments in all three bodies, it does note that the 190 members of the CBD have expressed, at the ministerial level, a commitment to the 2010 deadline set for receiving the report of the Access and Benefit Sharing (ABS) Working Group on the critical issues relating to ABS and suggested approaches to enforcing access and benefit sharing.”

“In addition to its engagement in the multilateral organisations, industry is engaged with key bilateral partners, such as India and China,” Gorlin said. “China is actively considering ABS legislation, while India, Brazil and others already require disclosure of source and origin for genetic resources and traditional knowledge.”

Swiss Proposal Would Change PCT

Switzerland has made a number of submissions at the IGC and has in general said at the WTO that the issue of genetic resources and traditional knowledge should be discussed at WIPO. For this meeting, it has submitted a paper summarising its position (WIPO/GRTKF/IC/11/10). This proposal is identical to one made to the 9th meeting of the Working Group on Reform of the PCT held in April 2007, it said (IPW, WIPO, 20 April 2007).

It states: “Switzerland proposes to amend the PCT [Patent Cooperation Treaty] regulations to explicitly enable the contracting parties to the PCT to require patent applicants, upon or after entry of the international application into the national phase of the PCT procedure, to declare the source of genetic resources and/or traditional knowledge, if an invention is directly based on such resource or knowledge.”

This would leave it up to national governments to decide whether to make disclosure part of national law. The paper says that Switzerland and most European countries plan to introduce a disclosure requirement in their national patent law. As of 1 June, 137 members of WIPO had signed up to the PCT.

“We remain confident that the Swiss proposals present a simple and most viable approach with regard to disclosure requirements and their policy objective of increasing transparency in access and benefit sharing,” the official said.

Tove Gerhardsen may be reached as tgerhardsen@ip-watch.ch.