WIPO Adopts Landmark Treaty Requiring Patent Disclosure of Genetic Resources and Indigenous Traditional Knowledge

The World Intellectual Property Organization (WIPO) has formally adopted a groundbreaking treaty addressing intellectual property rights related to genetic resources and associated traditional knowledge. This development follows almost a quarter-century of international negotiations and culminated at WIPO’s Diplomatic Conference held from May 13 to 24, 2024.

Known as the WIPO Treaty on Intellectual Property, Genetic Resources and Associated Traditional Knowledge, the instrument establishes new requirements for patent applicants filing international applications under the Patent Cooperation Treaty (PCT). The treaty’s primary objective is to prevent the erroneous granting of patents for inventions that are not novel or inventive when genetic resources or traditional knowledge associated with such resources have been previously utilized.

This treaty represents the first international legal instrument to explicitly connect intellectual property protections with Indigenous Peoples and their traditional knowledge. It aims to enhance the efficacy, transparency, and quality of the patent system concerning genetic resources and related traditional knowledge.

Under Article 3 of the treaty, patent applicants must determine whether their claimed invention is “based on” genetic resources or associated traditional knowledge. WIPO defines “based on” in Article 2 as requiring that the genetic resources and/or traditional knowledge be essential to the invention’s claims, with the claims depending on the specific properties of those resources or knowledge.

If an invention is based on such genetic resources or traditional knowledge, applicants are obligated to disclose the country of origin of the genetic resources and identify the Indigenous Peoples or local communities that provided the associated traditional knowledge. In cases where the source of the traditional knowledge is unknown, applicants must disclose the source of the genetic resources or the associated traditional knowledge if known.

Should none of this information be available, the applicant must provide a formal declaration affirming the absence of such knowledge. Failure to comply with these disclosure requirements may result in sanctions; however, applicants will be afforded an opportunity to rectify any omissions.

The treaty’s provisions will apply prospectively and are not retroactive. It is expected to enter into force three months after at least 15 WIPO member states deposit their instruments of ratification or accession with the WIPO secretariat.

Negotiations are scheduled to continue in December 2024, focusing on additional treaties that could further safeguard traditional knowledge and traditional cultural expressions.

This treaty marks a significant milestone in international intellectual property law, reflecting growing recognition of Indigenous Peoples’ rights and the importance of genetic resources in innovation.

Previously, WilmerHale highlighted related developments, including the U.S. Patent and Trademark Office’s solicitation of comments from Indigenous tribes on genetic resources, traditional knowledge, and cultural expressions, as reported on November 1, 2023.

The full text of the treaty and related WIPO materials are publicly accessible, providing detailed guidance on the new disclosure obligations and definitions.