Expert Group Meets Ahead Of This Week’s WIPO Genetic Resources Negotiations

An expert group is meeting Sunday at the World Intellectual Property Organization, on the eve of a weeklong session of the WIPO committee on genetic resources and traditional knowledge. The expert group will address the most divisive issues in the discussions of the committee in charge of finding solutions to protect genetic resources, traditional knowledge and folklore against misuse and misappropriation.

The 36th session of the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) is taking place from 25-29 June. The closed-door Ad Hoc Expert Group on Genetic Resources is meeting on 24 June.

The convening of the expert group was suggested by IGC Chair Ian Goss of Australia, and approved at the last session of the IGC in March (IPW, WIPO, 26 March 2018).

As detailed in an information note [pdf] on methodology and program, the issues discussed by the Ad Hoc Expert Group will be the subject of a potential instrument protecting genetic resources (GRs) and associated traditional knowledge, disclosure of origin of such genetic resources, the use of databases, and due diligence mechanisms.

The mandatory disclosure of origin has been requested or supported by a number of countries and firmly resisted by others.

Two co-chairs have been appointed by IGC chair Ian Goss from Australia for the group: Pedro Roffe, senior fellow at the International Centre for Trade and Sustainable Development (ICTSD), and Krisztina Kovacs, policy officer at the European Commission. According to the information note, Roffe was nominated by the WIPO secretariat, and Kovacs was nominated by the European Union.

The document says the group is “invited to identify any other legal, policy or technical issues that the IGC may need to address, as well as provide to the IGC any other analysis or advice or recommendations that it might wish.”

The WIPO secretariat also provided a substantive background note [pdf].

The list of participants [pdf] includes a number of experts from WIPO member states, coming from developed and developing countries, two experts of indigenous peoples groups, and three experts invited by the WIPO secretariat: Roffe, Paul Oldham, senior visiting fellow, United Nations University (UNU), Lancaster, and Manisha Desai, patent attorney, Union Chimique Belge (UCB), Brussels.

Further Work On Potential Treaty Text

The draft programme [pdf] of the IGC next week includes a panel of indigenous and local communities and the report of the Ad Hoc Expert Group on Monday, with the rest of the week devoted to further work on a consolidated document [pdf] relating to intellectual property and genetic resources.

The IGC deals with three different issues: GRs, traditional knowledge (TK), and traditional cultural expressions (TCEs). According to the IGC mandate, renewed for two years during the last WIPO General Assembly in October, the IGC is to meet twice during the biennium on each of the subjects.

Next week is the second meeting of the IGC on GRs, and the result of this meeting will be sent to the WIPO General Assembly in 2019. At stake is whether or not a high-level negotiating meeting (diplomatic conference) should be convened to agree on one or several treaties.

Goss issued an Information Note [pdf] for next week’s session of the IGC. The note specifies that the note includes his views and has no status, nor it is a working document for the session.

The note states that “the relevant international frameworks for regulating access to and benefit-sharing in GRs are the Convention on Biological Diversity (CBD) and the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the Convention on Biological Diversity (Nagoya Protocol), as well as the International Treaty on Genetic Resources for Food and Agriculture (ITPGRFA) of the United Nations Food and Agriculture Organization.”

Further, the note explains that GRs “can be differentiated from the two other subjects being dealt with by the IGC: traditional knowledge (TK) and traditional cultural expressions (TCEs). TK and TCEs, which are developed by the human mind, can be considered “intellectual property” suitable for direct protection by an intellectual property (IP) instrument. By contrast, GRs as such are not produced by the human mind and the IP issues that they raise are distinct.”

The note also describes the two broad approaches laid out in the consolidated text, along with two sets of distinct policy objectives.

The first approach includes a mandatory disclosure in patent applications, while the second approach is based on defensive and complementary measures, such as databases, and voluntary codes and guidelines for IP and patent offices under national laws.

The note suggests a list of key issues for consideration: the scope and subject matter of a potential instrument, the nature of disclosure, what would trigger disclosure, the content of such disclosure, and the consequence of non-compliance.

Still on the Table, Joint Recommendations, Reports

A number of other documents are on the table for consideration of member states, all of them resubmissions or slightly edited versions.

The WIPO secretariat reissued a report [pdf] on the compilation of materials on databases relating to genetic resources and associated traditional knowledge. According to the document, which includes “a non-exhaustive list of materials available on the WIPO website relating to databases, and the historical development of the text-based negotiations at the IGC concerning databases relating to GRs and associated TK,” the document is re-issued “with a few updates.”

The same goes for a report [pdf] on the compilation of materials on disclosure regimes relating to genetic resources and associated traditional knowledge.

Two joint recommendations are re-submitted on the prevention of erroenous grant of patents: a Joint Recommendation [pdf] on Genetic Resources and Associated Traditional Knowledge resubmitted by Canada, Japan, Norway, South Korea, and the US, and a Joint Recommendation [pdf] on the use of databases for the defensive protection of genetic resources and traditional knowledge associated with genetic resources, resubmitted by Canada, Japan, South Korea, and the US.

Also on the table is a proposal [pdf] for the terms of reference for the study by the WIPO secretariat on measures related to the avoidance of the erroneous grant of patents and compliance with existing access and benefit-sharing systems, resubmitted by Canada, Japan, Norway, Russia, South Korea, and the United States.

 

Image Credits: Flickr – CIAT