Disclosure of Origin and Legal Provenance: The Experience and Implementation Process in South America

Date period
8 July 2010

The relationship between access to genetic resources and benefit-sharing (ABS) and intellectual property is based on recognition of the following principle: the granting of patents or other intellectual property (IP) rights over biodiversity related innovations should be conditioned on biodiversity components being acquired, obtained or accessed legally. In other words, inventions derived from biodiversity, including genetic resources, must be submitted to additional scrutiny that requires such resources to comply with national ABS laws and regulations regarding the protection of associated
traditional knowledge (TK) if it were the case. This is the principle of disclosure of origin and legal provenance that determines the link between IP and ABS.

The idea of creating synergies between different legal regimes (IP and ABS and/or the protection of TK) raises considerable policy, economic, legal and practical challenges that have been addressed over time in various countries' laws and regulations. It has also been a matter for debate in international forums, such as the Conference of the Parties to the Convention on Biological Diversity (CBD),1 the Council for the Trade Related Aspects of Intellectual Property Rights (TRIPS) and the World Intellectual Property Organization (WIPO) Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC). In order to contribute to a better understanding of this principle and overcome future challenges that may arise from connecting ABS, IP and TK, this document briefly analyzes the history of disclosure of origin and legal provenance and their development. It also reviews legal experiences in various countries and implementation in practice. Finally, it provides with some recommendations for improved application.