Introduction to the new WIPO Treaty on Intellectual Property, Genetic Resources, and Associated Traditional Knowledge

South-East Asian nations such as Malaysia, Indonesia, and the Philippines are recognised globally for their impressive biodiversity, earning them the distinction of being megadiverse countries. Each nation boasts a rich tapestry of ecosystems, from lush rainforests to vibrant coral reefs, that support an array of flora and fauna. These countries with their rich genetic resources, together with 14 other countries, are recognised to harbour more than 70% of the earth's species.

 

The South-East Asian region is also renowned for its richness of traditional knowledge, particularly in the fields of agriculture and medicine, amongst others. Over time, communities have developed solutions to circumvent the challenges posed by their environment, including earthquake and flood-resistant building techniques, agricultural techniques that maximise productivity on marginal lands, as well as foods, beverages, and medicinal remedies derived from local flora and fauna. 

 

In May 2024, the WIPO Treaty on Intellectual Property, Genetic Resources, and Associated Traditional Knowledge[1] was adopted by the World Intellectual Property Organization (WIPO) member states. This treaty marks a significant milestone in the intersection of intellectual property (IP), genetic resources (GR), and traditional knowledge (TK), particularly addressing the rights and contributions of Indigenous Peoples and local communities such as those originating from the South East Asian region.

 

Formally, GR are defined in the Treaty as any material of plant, animal, microbial, or other origin containing functional units of heredity and in line with the manner in which the term is understood in the context of the Convention on Biological Diversity.

 

While there is not yet an accepted definition of TK at the international level, it can be acknowledged in a general sense that it embraces the content of knowledge itself, as well as traditional cultural expressions, including distinctive signs and symbols associated with TK. More narrowly, it is recognised as the knowledge resulting from intellectual activity in a traditional context and includes know-how, practices, skills, and innovations.

 

The treaty is the culmination of decades of negotiations at WIPO since 2001, initiated by a proposal from Colombia in 1999. It is the first WIPO treaty that deals with GR and TK and includes provisions specifically for Indigenous Peoples and local communities. Two objectives are set out in the treaty: to enhance the efficacy, transparency, and quality of the patent system concerning GR and TK associated with GR, and to prevent patents from being granted for inventions lacking novelty or inventiveness in relation to GR and TK. It is a move towards a more inclusive global framework for IP by balancing the interests between innovation-driven countries and those with significant cultural and biological diversity.

 

 

The use of GR and associated TK to drive modern scientific developments reaffirms traditional wisdom that communities have long relied on for practical solutions to thrive in their environment. GR encompass the rich biodiversity found in nature, including plants, animals, and microorganisms, each with unique genetic traits that hold potential for various applications. While GR themselves are generally excluded from IP protection, inventions developed using them can be protected, most often through a patent. 

 

Coupled with TK held by indigenous and local communities, these resources have been leveraged to foster innovations across diverse fields such as medicine, agriculture, and biotechnology.

 

Examples of GR and TK’s relevance to patentable innovations

 

 

 

Disclosure Requirement: The treaty introduces a disclosure requirement for patent applicants whose inventions are based on GR and/or GR-associated TK. Specifically, when the claimed invention of a patent application is based on GR, applicants should disclose: 

 

the country of origin of the GR, or

 

the source of the GR, if the country of origin of the GR is not known to the applicant, or if the information is not applicable.

 

In instances where there is more than one country of origin, the applicant should disclose the country from which the GR were actually obtained.

 

When the claimed invention of a patent application is based on TK associated with GR, applicants should disclose: 

 

the Indigenous Peoples or local community who provided the TK associated with GR, or

 

the source of the TK associated with GR, if the above-mentioned information is not known to the applicant or if the information is not applicable.

 

In the event that none of the information required to be disclosed is known to the applicant, the applicant would be required to make a declaration to that effect.

 

These requirements only affect new applications filed after the treaty has entered into force. There is no need for applicants to amend prior applications to meet this requirement.

 

Applicants of such new applications would also be availed of an opportunity to rectify unintended failure to disclose or to correct any unintended errors in the disclosure, as well as guidance from the local office on how to meet the disclosure requirements.

 

Each contracting party may provide post-grant sanctions or remedies if there has been fraudulent intent in connection with adherence to the disclosure requirement.

 

 

Bamboo is used extensively within SEA for construction and finishing because it is abundant, strong, and durable. It has traditionally been used in the construction of walls, floors, and sunscreens allowing for cross ventilation. In recent years, new-generation designers have further elevated the profile of bamboo constructions with globally renowned projects that employ both traditional techniques as well as innovative methods to enhance the structural integrity of these modern bamboo buildings.

 

Turmeric (Curcuma longa), mostly recognised as a spice in the West, is used in traditional medicine across SEA to treat various ailments including arthritis, digestive disorders, and even in skincare routines. The skin-improving properties of turmeric have been adopted by international brands in face masks and scrubs. 

 

Another herb, lemongrass (Cymbopogon citratus), popularly used in Thai cooking, is also being used in traditional medicine to aid digestion, reduce fever, and alleviate muscle pain. Lemongrass essential oil has found its way into modern aromatherapy and skincare products for its astringent and antibacterial properties.

 

 

In the Agreement Establishing the ASEAN Australia-New Zealand Free Trade Area (AANZFTA), measures to protect GR, TK, and folklore are to be contemplated by parties to the agreement.[2] This has led to the protection of GR and TK, as well as traditional cultural expressions (TCE), being identified as one of the initiatives by the ASEAN Working Group on Intellectual Property Cooperation (AWGIPC) in meeting the goals of the ASEAN Economic Community (AEC). A comparative study of existing GR, TK, and TCE legislation and approaches has been commissioned, providing recommendations for implementation across the ASEAN region.[3]

 

In the latest version of the ASEAN IPR Action Plan 2016-2025 v2.0,[4] GR and TK-related activities expected to take place over the period of 2021-2025 include: 

 

developing relevant national policies and laws related to Genetic Resources, Traditional Knowledge, and Traditional Cultural Expressions (GRTKTCE), for interested ASEAN member states (AMS);

 

developing a network of GR and TK databases for interested AMS;

 

implementing regional cooperation agreements such as a code of conduct/MOC on the use of GR by interested AMS.

 

Notably, Indonesia, Myanmar, Vietnam, and - to a certain extent - the Philippines have already incorporated disclosure requirements for patent protection for inventions that are related to or derived from GR and/or TK as summarised below.[5],[6],[7],[8]

 

 

Currently, both Myanmar and Indonesia’s patent laws are most closely aligned with the requirements of the new treaty, mandating that inventions related to or derived from GR and TK must clearly and correctly disclose the origin of the GR and TK in the description. 

 

Concurrent with the requirements for disclosure of GR and TK, the ASEAN Traditional Knowledge Digital Library (TKDL)[9] has been developed to serve as a platform for digitised documentation of publicly available TK in the area of medicinal plants. Indonesia has also separately issued regulations.[10] in connection with the recordal of TK and established a dedicated communal IP database[11] that currently lists 458 unique TK and 8,539 GR entries. 

 

 

The treaty will enter into force three months after the 15 relevant countries deposit their instruments of ratification or accession. Negotiations will continue at WIPO after the treaty comes into force, focusing on further protections for Indigenous Peoples' TK and traditional cultural expressions.

 

[1] https://www.wipo.int/edocs/mdocs/tk/en/gratk_dc/gratk_dc_7.pdf 

 

[2] Agreement Establishing the ASEAN Australia-New Zealand Free Trade Area, Article 8 of Chapter 13, https://aanzfta.asean.org/index.php?page=chapter-13-intellectual-property/.

 

[3] Comparative Study on Genetic Resources, Traditional Knowledge and Traditional Cultural Expressions (GRTKTCE), https://www.aseanip.org/docs/default-source/asean-ip-publications/comparative-study-grtktce_final-for-public.pdf?sfvrsn=90ebf633_1. 

 

[4] The ASEAN Intellectual Property Rights (IPR) Action Plan 2016-2025, https://www.aseanip.org/docs/default-source/content/ASEAN-IPR-Action-Plan-2016-2025-v2.0.pdf. 

 

[5] Indonesia Patent Law, Article 26, https://www.wipo.int/wipolex/en/legislation/details/16392. 

 

[6] Myanmar Patent Law, Chapter X, Section 20(b) and 22(c), https://www.wipo.int/wipolex/en/legislation/details/20211. 

 

[7] Philippine Technology Transfer Act of 2009, Article III Section 8c, https://www.wipo.int/wipolex/en/legislation/details/9605. 

 

[8] Vietnam Law No. 07/2022/QH15.

 

[9] ASEAN Traditional Knowledge Digital Library, http://tkdl.aseanbiodiversity.org/ 

 

[10] Indonesian Government Regulation No. 56 of 2022 on Communal Intellectual Property,  https://www.tilleke.com/insights/protection-of-traditional-knowledge-in-indonesia/. 

 

[11] Indonesian Communal Intellectual Property, https://kikomunal-indonesia.dgip.go.id/home.