NEWSFLASH: WIPO ADOPTS TREATY ON BIOPROSPECTING, TRADITIONAL KNOWLEDGE

While South Africa has been understandably caught up in election fever, a quietly momentous event has taken place in Geneva.

On 24 March 2024, the World Intellectual Property Organization (WIPO) member states adopted a new Treaty on Intellectual Property, Genetic Resources and Associated Traditional Knowledge. This adoption follows decades of negotiation and, more recently, vigorous debate amongst its members, and seems to have walked a more moderate path than some had hoped for. Even so, the Treaty represents a significant advance in the global control of bioprospecting, and the recognition of traditional knowledge.

The major changes introduced by the Treaty relate to the disclosure requirements for patent applications. These now require patent applicants in the contracting parties to disclose the country of origin of any genetic resources which may be related to a patent application, or else the source of any such genetic resources. Further, applicants are required to disclose the Indigenous Peoples or local communities who provided any traditional knowledge which may be associated with the genetic resources, or the source of the traditional knowledge associated with any such genetic resources.

No obligation is placed on the patent offices of the contracting parties to verify the authenticity of these disclosures. However, the information disclosed thereby must be made available in accordance with local patent procedures, but without prejudice to the protection of confidential information.

The Treaty also requires contracting parties to put in place “appropriate, effective and proportionate” legal, administrative and/or policy measures to address any failure to produce the required information, but broadly leaves the details to the contracting party itself. However, opportunity to rectify such a failure to disclose information must be provided, and a patent right cannot be revoked solely on the basis of an applicant’s failure to disclose the information.

The Treaty will enter into force once 15 WIPO member states become contracting parties to the Treaty.

The procedure specified by the Treaty is very similar to the existing process when applying for a South African patent, as the South African Patents Act already provides, in the form of the Form P26, for the filing of a statement on the use of genetic resources and/or associated traditional knowledge in the invention claimed.

All in all, the adoption of the Treaty represents a small, initial step towards a broader global acceptance of the need to regularise and manage bioprospecting and traditional knowledge. If nothing else, then South African patent applicants are ahead of the curve in this regard.