WIPO committee advances working document on genetic resources, though divisions remain

14 June 2016

Negotiators meeting last week at the UN’s intellectual property agency made progress on a draft document aimed at protecting genetic resources, while leaving various issues unresolved in the long-running talks.

The World Intellectual Property Organization’s (WIPO) Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) held its 30th session from 30 May to 3 June, continuing the work set out in its mandate “to ensure the balanced and effective protection of genetic resources (GRs), traditional knowledge (TK) and traditional cultural expressions (TCEs).”

Following the advances in this latest session on clarifying the consolidated working document, the heavily-bracketed text has been transmitted to the 34th session of the IGC, after which it will be submitted to the WIPO General Assembly in 2017 in accordance with the committee’s mandate. However, various differences still remain going forward.

This IGC session was the second one this year dedicated to addressing the topic of genetic resources and traditional knowledge associated with genetic resources. The discussion built upon that of IGC 29, aiming to address various outstanding issues identified at that session. (See Bridges Weekly, 25 February 2016)

Specifically, the focus was on “narrowing gaps” between different member states’ positions on how best to protect genetic resources.

As a lead up to the 30th session, the IGC held a seminar on intellectual property and genetic resources on 26-27 May, consisting of four roundtables on a variety of topics. Many speakers emphasised the need for taking a broad perspective of the issues, and considering all of the relevant international instruments and interests which must be balanced.

Member states generally praised the seminar for clarifying issues and providing useful information, with IGC Chair Ian Goss saying that they contained some “golden nuggets.” The African Group also hosted a roundtable for members to discuss the issues on 24-25 May, which also received favourable reviews.

Revisions to consolidated document

The second revision to the working document reflected a trend in member states’ proposals to shorten and simplify the subject matter and the objectives, the latter having been moved to the first article of the text.

Three new formulations for the objectives were proposed, as member states disagreed on whether to include preventing misappropriation and the granting of erroneous patents. Many member states objected to the reference to erroneous patents, with Azerbaijan arguing that as this is not a legal term, it should be replaced with a reference to patents not meeting the patentability criteria.

In addition, Switzerland suggested that preventing the granting of erroneous patents is already covered by the objective of increasing the efficacy of the patent system. As a potential compromise, references to preventing misappropriation and the granting of erroneous patents were added to the preamble, so that they might not need to be included in the objectives.

Nigeria, on behalf of the African Group, made a similar proposal to simplify the provision on the exceptions and limitations to the disclosure requirement. This proposal replaced the list of exceptions set out in the consolidated document with less specific language allowing members to “adopt justifiable exceptions and limitations necessary to protect the public interest.” However, as with the interventions regarding the objectives and subject matter, the proposed language was not endorsed by all member states, and so was added merely as an alternative.

There were also significant changes to the structure of the document, with the revised text now including separate alternative versions of the first five articles, with one version for the proposed mandatory disclosure requirement and the other having no disclosure requirement. Headings dividing the different sections of the document were also added.

Several member states praised this change as more clearly delineating between the two approaches to the instrument, although support was not universal. In addition, the US expressed concern that some of its proposals which were intended to set out the content of the disclosure requirement had instead been included in the “no new disclosure requirement” alternative.

Differing views on core issues

Much of the discussion focused on the proposed mandatory disclosure requirement for patent applications, with considerable debate on what the appropriate trigger for disclosure should be.

Some member states, such as Brazil and India, supported disclosure whenever a claimed invention includes utilisation of genetic resources, which they held to be a clearer and more objective standard. Others, such as the EU, found this term to be too broad, and would instead require that the invention be directly based on genetic resources, which ensures a more direct link.

A compromise between these two positions was put forward by Australia, which would require that the invention be directly based on the utilisation of genetic resources. However, this language did not find favour with all member states.

Another contentious issue was whether patent applicants would be required to disclose the country of origin or the source of the genetic resources used in the development of the claimed invention. Several member states, including Australia, Switzerland, and the US, supported using the source.

Australia also raised the concern that as many genetic resources occur naturally in several countries, if country of origin were to be used there would be a risk that applicants may select whichever country has the most favourable national legislation to disclose as the origin, regardless of the actual source. This could potentially lead to a “race to the bottom” in benefit sharing regimes.

India dismissed this concern, stating that countries would inevitably recognise the benefits to be had from strengthening their national laws, and along with Jamaica, Peru, and Brazil voiced support for the country of origin to be disclosed. Jamaica suggested that only requiring applicants to disclose the source could mean that if genetic resources originating from Jamaica have already been taken, and are then passed on again, Jamaica would not be mentioned in the application.

Databases and other defensive measures were also considered, with a minority of member states maintaining that they would be sufficient in and of themselves to ensure the protection of genetic resources. A US proposal that a joint database should be accessible by the public, rather than just patent examiners, prompted concerns from indigenous representatives, who reiterated that the traditional knowledge contained in the databases must not be viewed as being in the public domain.

The delegate from Peru proposed that if such a database were open to the public, it would be necessary to include appropriate safeguards such as filters to adequately protect secret and sacred traditional knowledge.

Concerns over process, scope

As at IGC 29, questions on procedure often dominated discussion in the plenary sessions, particularly after the release of the first revised document.

As this first revision included many textual proposals which had been submitted verbally, there was concern that the document now included language which had not been properly debated by member states. Some member states, including Brazil, Colombia, Ecuador, and Bolivia, argued that the new textual proposals had failed to narrow gaps as set out in the IGC’s mandate, and that accordingly the revision was a backwards step and should not be the basis of discussion moving forward.

While many member states endorsed the work done by the facilitators, this lack of consensus meant that the second revision was based on the consolidated document rather than the first revision. The Chair called for a review of the process to be used in future sessions of the IGC, and asked member states to submit any recommendations before the next session meets to address the protection of traditional knowledge.

Another topic which received significant attention was article four of the consolidated document, which addressed the relationship between the instrument and the Patent Convention Treaty (PCT) and the Patent Law Treaty (PLT) and required amending the PCT and PLT to allow for mandatory disclosure requirements in patent law.

However, many member states questioned whether it was appropriate or even possible for one international legal instrument to dictate the terms of another, and the Group of Latin American and Caribbean Countries proposed that the article be removed. However, the EU requested that it be kept in some form, and this was done by moving the text to a provision of article nine, which covers relationships with international agreements.

Once again, the Chair highlighted the state of the WIPO Voluntary Fund for Accredited Indigenous and Local Communities as a cause for concern, noting that the lack of participation by indigenous groups reflected poorly on the IGC’s credibility. During the Indigenous Panel, Aroha te Pareake Mead noted that the number of indigenous representatives staying for the entirety of the session – four people – was the same as went to the United Nations in 1991 to negotiate for indigenous rights.

Moving forward

While consensus was not reached on the many major issues concerning the protection of genetic resources, many member states said that progress had been made in clarifying the different approaches.

“Principally, our mandate was to close the gap; the African Group came with the commitment and goodwill to do just that, and demonstrated significant leadership and constructive engagement and outreach to accomplish that objective,” said Chidi Oguamanam, a Nigerian member of the African Group expert delegation to the 30th IGC and Professor of Law at University of Ottawa, who is also part of the Open African Innovation Research (Open AIR) and ABS-Canada.org.

“In the end, we left with some progress, not that the gaps were closed per se in any substantive sense, but at least we have two clear pathways that are still reconcilable and capable of moving us forward and closer to the diplomatic conference,” said Oguamanam.

Others similarly noted the advances made over the latest round of talks.

“Despite what seemed at times to be no progress, there were in fact moments during IGC 30 in which small but important steps were made,” said Ruth Okediji of the Nigerian delegation, who is of the University of Minnesota’s Law School, in e-mailed comments to Bridges.

“These moments, I believe, collectively produced a new working document that consolidated the gains derived from the informal sessions.  The commitment of demandeurs remained steadfast, as did recognition that the process ultimately must reconcile the considerations of the majority of WIPO member states who view with great importance the moral, legal, and economic concerns that justify these negotiations for an international mandatory disclosure of origin requirement,” added Okediji.

Wend Wendland, Director of WIPO’s Traditional Knowledge Division and Secretary of the IGC, concurred that the sense from the latest talks was that of progress, while noting some remaining areas of difficulty.

"Overall, while methodology in the IGC remains a challenge, the session can be regarded as positive in that it was able to develop a revision of the main working document which will likely form the basis of future work on genetic resources,” said Wendland in comments to Bridges. “In the preceding week, the WIPO Secretariat’s Seminar, as well as member states' informal consultations, including the African Group’s Roundtable, are seen by many as having been helpful for the process. Indigenous Peoples’ participation in the IGC is declining, however, and this is a cause for concern.”​

Other officials, however, argued that more should have been achieved during this latest session.

"IGC 30 was quite disappointing, for at the end of the five days, the session adopted a document that leaves many critical questions on the issue of genetic resources unanswered. As a result, the mandate given by the WIPO General Assembly to ‘focus on narrowing existing gaps’ has remained unfulfilled," said Dr. Biswajit Dhar, a professor at Jawaharlal Nehru University’s Centre for Economic Studies and Planning at the School of Social Sciences, in e-mailed comments to Bridges.

The progress which has been made will be transmitted through the working document to IGC 34, and then to the WIPO General Assembly in 2017, where member states will decide whether to convene a diplomatic conference – the UN agency’s highest level of negotiations.

The IGC will meet again in September for its 31st session, and will focus on the topic of traditional knowledge.

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