WIPO: Text on Genetic Resources in Final Stages of "Relay"

13 February 2013

Members of the World Intellectual Property Organization (WIPO) have agreed to move forward with a draft text on genetic resources, following a week-long meeting held in Geneva. The document is expected to be transmitted to the organisation's General Assemblies in September, which will in turn decide whether to convene a diplomatic conference on the subject - the UN body's highest level of negotiations.

Genetic resources - defined by the document as genetic material of actual or potential value - are commonly used in patentable inventions, such as pharmaceutical products. Traditional knowledge is often linked to genetic resources as "associated traditional knowledge," such as the healing properties of a plant, for example. Many biodiversity-rich countries and indigenous communities are concerned about the misappropriation of such resources and knowledge, which could be used to obtain a patent without their prior consent and without having adequate access and benefit-sharing mechanisms in place.

The Intergovernmental Committee on Genetic Resources, Traditional Knowledge, and Folklore (IGC) was created in 2000. Last year, WIPO's General Assemblies renewed the committee's mandate to work on text(s) for an international legal instrument(s) aimed at ensuring the effective protection of genetic resources, traditional knowledge, and traditional cultural expressions. The work would be divided into three thematic sessions to deal with the respective topics.

The last thematic session is scheduled for July, and will be extended in order to review and take stock of the draft text(s). Members will then make a recommendation to the September General Assembly, which will ultimately decide whether to convene a diplomatic conference. (See Bridges Weekly 15 October 2012)

This past week's session focused solely on genetic resources, an area in the IGC's work that has not witnessed the same progress as the two other areas. At the end of the session, IGC Chair Ambassador Wayne McCook of Jamaica compared the committee's work to a relay race - a sport his fellow countrymen excel in - reminding delegates that the most significant part is the change of the baton.

"[In a relay], much can be lost after much has been gained," he warned.

Countries still at odds over disclosure

Though the new consolidated document shows a cleaner text with agreement on some areas - such as certain definitions - this latest version remains riddled with brackets, due to members' disagreements over some key elements.

The biggest point of contention is over a mandatory disclosure requirement in patent applications regarding the origin of genetic resources and associated traditional knowledge. Proponents say that such a measure would prevent erroneous patents from being granted and ensure that adequate access and benefit-sharing provisions are in place.

In a statement supported by several delegations, Brazil suggested that the discussion focus on mandatory disclosure requirements and their basic elements. This, Brazil explained, would ensure that the instrument under discussion be consistent with the Convention on Biological Diversity and its Nagoya Protocol, which regulates access to genetic resources and the fair and equitable sharing of the benefits that arise from their use.

"We were told when we were negotiating Nagoya that the place to discuss disclosure is the IGC, so it is unacceptable that our negotiating partners are not willing to discuss it here," Namibia said.

The US, meanwhile, reiterated its view that it "do[es] not support the use of the patent system to ensure compliance with the disclosure of the source of genetic resources."

"In order to incentivise innovation the requirements placed on the patent applicant must not be burdensome," the US delegate added.

Joint recommendations stir up heated debate

Also during last week's meeting, the US, Canada, Japan, Norway, and South Korea re-submitted a proposal for a joint recommendation without a mandatory disclosure requirement that sets non-binding general guidelines for the protection of genetic resources and associated traditional knowledge. The proposal was presented at last February's IGC session, but had not been discussed in detail. (See Bridges Weekly 22 February 2012)

The US called the re-submitted joint recommendation a "confidence-building measure" to help the IGC move forward, saying that it captures key objectives and facilitates the establishment of mechanisms for protecting genetic resources and associated traditional knowledge.

However, the proposal was met with resistance by many developing countries. South Africa, for one, said they "welcomed the move towards confidence-building, but the content does not even meet the minimum requirements of the demandeurs," namely disclosure and a legally binding treaty.

Many countries also pointed to the lack of clarity regarding how the joint recommendation would fit into the negotiating process for an international legal instrument. At this stage, Nigeria said, discussing the joint recommendation could be considered an "unnecessary diversion of resources."

The same group of countries - with the exception of Norway - also presented a proposal for the terms of reference for a WIPO study on measures related to the avoidance of the erroneous granting of patents and ensuring compliance with existing access and benefit-sharing systems.

Another proposal by the same group called for a joint recommendation on the use of databases for the defensive protection of genetic resources and the associated traditional knowledge. Proponents say that databases would help patent examiners find relevant prior art and avoid the granting of erroneous patents. Many developing countries, however, see databases as only complementary to other measures, such as disclosure.

"How do the proponents of this measure see the databases populated if not through disclosure?," Namibia asked in the plenary.

The proposals were not included in the consolidated document. For the European Union, however, these other documents "remain relevant and on the table."

The next session of the IGC is scheduled for 22-26 April 2013 and will focus on traditional knowledge.

ICTSD reporting.

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