The New WIPO Genetic Resources and Associated Traditional Knowledge Treaty: A Symbolic and Modest Step toward an Inclusive and Just IP System

Over two decades of negotiations have climaxed in the birth of a new treaty in the early hours of May 24, 2024, in Geneva, Switzerland at the WIPO 2024 Diplomatic Conference on Genetic Resources (GRs) and Associated Traditional Knowledge (ATK). The history of the journey to this treaty toward a more inclusive intellectual property (IP) system has been sufficiently chronicled. We capture a quick, preliminary and measured impressions of the new instrument:

The treaty is the first of its kind under WIPO that focuses on traditional knowledge (TK), the Global South, as well as Indigenous Peoples and Local Communities (IPLCs). It largely yields a symbolic and modest outcome upon which similar initiatives will build. Negotiations will continue under the TK and Traditional Cultural Expressions (TCE) streams under the WIPO Intergovernmental Committee (WIPO-IGC).
Consistent with the outlined significance of the treaty under 1 above, the treaty provides for the participation of IPLCs, albeit as observers, in the work of the Treaty Assembly, enabled by financial support. This important step underscores the significance of the treaty subject matter for IPLCs and vice versa. It entrenches the practice and precedent of active participation by IPLCs under the WIPO Intergovernmental Committee (WIPO-IGC) formally and solidly into a treaty text.
Additionally, the instrument accommodates the involvement of IPLCs in the implementation of treaty-inspired policies or mechanisms. For example, this approach is captured under a provision regarding the potential establishment of information systems such as databases of GRs and ATK.
The treaty is largely an administrative treaty designed to enhance the transparency of the patent system. Consequently, there were variable interests and contestations, with resulting tension regarding how the treaty could be ‘domesticated’ in the practices of national patent offices. This is reflected especially in the debate surrounding what trigger language to use for disclosure of source/origin GRs and ATK used in inventions, as well as the issue of information systems for the purpose of prior art.
The treaty generally tries to strike a balance between pragmatism and theory. This feature of the treaty is illustrated in the provisions for sanctions and remedies. The treaty forecloses the revocation or invalidation of patents solely because of non-disclosure of the source/origin of GRs and ATK. It allows for pre- and post-grant rectification in such contexts. However, there is a narrow discretionary window for a package of post-grant sanction/remedies (which do not exclude revocation) where fraudulent intent is established regarding disclosure.
Consistent with its status as an administrative instrument, non-demandeur countries of the Global North (who own most GR- and TK-based patents) demonstrated keen interest on two notable fronts. First, non-demandeur countries attempted to set upper bar for the number of ratifications/accessions required for the treaty to come into force (pushing for a higher threshold of 30). Second, they were insistent on participating in the treaty-making organs (the Treaty Assembly and Diplomatic Conference) to potentially influence decisions including reviews/revisions of the treaty. These decisions are the exclusive purview of contracting parties to the treaty. While non-demandeur countries failed on the first issue, the extent they prevailed on the second is the subject of academic debate for now, pending when the treaty comes into effect.
The European Union (EU) was written into the treaty in recognition of its status as an Intergovernmental Organization (IGO) eligible to become a treaty party. However, the treaty is silent on an earlier push by the EU to have a block vote of 27 member states within the treaty. Similarly, EU membership is premised on a declaration that the Union is competent on the subject matter of the treaty and that it has its own binding legislation on all its members regarding matters covered by the treaty. This does not allow for the EU or any IGO, for that matter, to be selective on matter(s) covered by the treaty by which its members may be bound. Such a possibility would have undermined the treaty’s prohibition of reservation.
Some countries and regions already have disclosure requirements in their domestic patent systems and pursuant to the implementation of their commitments under the Convention on Biological Diversity. However, the treaty straddles IP and related regimes dealing with IPLCs and TK, such as biodiversity conservation, and access and benefit sharing. It also contributes to the exploration of emerging policy and increasing traction around the role and design of databases, digital sequence information (DSI), artificial intelligence (AI), etc. and the ramifications of inclusive IP regimes and global knowledge governance in general.
Conclusion: As a first step, the ratification/accession to the treaty will represent the first test of the commitment of potential member parties to the treaty. With a 15-country threshold of ratification/accession for the treaty to come into force, that does not seem to be a very high bar. However, the heavy lifting to domesticate the treaty and reconcile it with existing regional and national laws, both in their text down to their practical institutional evolution, would come next. Beyond those stages, there is an urgent need to raise awareness and commitment to invest in capacity-building and the preparedness of IPLCs for this symbolic and modest milestone.

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