WIPO’s traditional knowledge treaty is adopted

The United Nations’ World Intellectual Property Office (WIPO) has adopted its first treaty to recognise the intellectual property of indigenous peoples and local communities: the WIPO Treaty on Intellectual Property, Genetic Resources and Associated Traditional Knowledge (the Treaty).

The Treaty is intended to protect the knowledge, skills and practices that have been developed, sustained, and passed through generations within indigenous people and local communities (referred to as Traditional Knowledge).

Versions of the Treaty have been discussed and negotiated by WIPO member states since 2009, facilitated by the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore, which was established in the year 2000. As is often the case, the Treaty that has been adopted is a significantly revised version of earlier drafts, and its scope is limited only to patents (rather than offering broad intellectual property protection for Traditional Knowledge as had been previously drafted).

What?

The Treaty was adopted by certain member states of WIPO on 24 May 2024. Its intention is to update the patent system to promote transparency around the use of genetic resources (i.e. any material of plant, animal, microbial or other origin, which is of actual or potential value), and the Traditional Knowledge associated with those genetic resources.

Importantly, the Treaty aims to prevent patents (and the associated commercial protection) being granted over “novel inventions” that are not, in fact, novel, and instead make use of Traditional Knowledge relating to those genetic resources. An example of this might be a patent application for a new medicine that leverages an indigenous community’s ancestral knowledge about how to use the medicinal properties in a native plant.

When?

On the date of adoption, the Treaty was signed by 36 member states, and it remains open for signature for a year (i.e. until 23 May 2025). New Zealand is not currently a signatory to the Treaty.

To be bound by the Treaty, member states must also ratify the Treaty (or accede to it if it has not signed the Treaty). The Treaty will come into force three months after there have been 15 ratifications or accessions.

How?

The Treaty establishes a mandatory disclosure system for any patent that relies on genetic resources and Traditional Knowledge related to those resources.

Specifically, the Treaty requires that where an applicant applies to register a patent that incorporates genetic resources and/or Traditional Knowledge, the applicant will need to disclose either:

• the country of origin of the genetic resources and/or the indigenous peoples or local community which has provided the associated Traditional Knowledge; or

• where that information is unknown, the genetic resources and/or the associated Traditional Knowledge being relied on.

Where that information is also unknown, the applicant must declare that it does not know.

Each member state is expected to adopt its own penalty regime regarding an applicant failing to make the requisite disclosures, and a process to rectify non-disclosure. If an applicant acts fraudulently or attempts to intentionally avoid the disclosure, the relevant patent can be revoked.

The Treaty encourages each member state to establish its own database of genetic resources and associated Traditional Knowledge, in consultation with indigenous persons and local communities. This database should be accessible by the local patent office to refer to when reviewing applications. Additionally, the Treaty suggests adopting working groups with indigenous persons and local communities to address any “relevant matters” that arise.  

Finally, the Treaty encourages member states to consider extending the disclosure requirement relating to Traditional Knowledge to other areas of intellectual property or emerging technologies that might be relevant.

Why?

The disclosure requirements in the Treaty attempt to address the known misalignment between the protection offered by a patent and the protection of Traditional Knowledge. Traditional Knowledge is ancestral knowledge, often intergenerational, intangible, and only disseminated within the local community. Patents may be granted to non-indigenous parties simply because Traditional Knowledge may not be evident in patent searches of the state of the art.

Ultimately, the Treaty seeks to prevent patent applicants from commercially exploiting a “novel invention” that actually makes use of misappropriated existing Traditional Knowledge without any benefit or reinvestment to the indigenous population. This is often called “biopiracy” and can occur within the pharmaceutical space, where Traditional Knowledge is sometimes exploited and commercialised without consent, and the benefit of this commercialisation is not shared with the indigenous persons or local community that holds the Traditional Knowledge.

One well known example of biopiracy related to a compound found in the hoodia plant of the Kalahari Desert, which had historically been used by the nomadic San people to suppress their appetite during long travels or times of famine. In the 1990s, the compound was registered as a patent to a third party for use as an appetite suppressant (and subsequently commercialised by pharmaceutical companies as a weight loss drug). The patent was challenged for failing to recognise the San people as the original holders of the knowledge concerning the properties of hoodia. This eventually resulted in a confidential “benefit-sharing” agreement between the owner of the patent and the San people, presumably to share the royalties derived from the sale of the patented compound.

New Zealand's patent system

New Zealand’s Patents Act 2013 (the Patents Act) already specifies that one of its key purposes is to “address Māori concerns relating to the granting of patents for inventions derived from indigenous plants and animals or from Māori traditional knowledge”.

Additionally, a “disclosure of origin” regime is already operating in New Zealand. The Intellectual Property Office of New Zealand (IPONZ) requires patent applicants to indicate whether they believe the invention is derived from Māori traditional knowledge, or from plants or animals native or endemic to New Zealand.

IPONZ then has recourse to the Māori Advisory Committee whose function is to advise on whether:

• an invention claimed in a patent application is derived from Māori traditional knowledge or from indigenous plants or animals; and

• if so, whether the commercial exploitation of that invention is likely to be contrary to Māori values.

Where the Māori Advisory Committee advises that the commercial exploitation of an invention is contrary to Māori values, then IPONZ can decide to reject the application based on morality or public order.

Despite this, recent research into the New Zealand patent system provides evidence of non-Māori businesses applying for patents (and plant variety rights) relating to native plants without consulting Māori or having regard to existing mātauranga. This may be because there are currently no sanctions or remedies in the Patents Act for a failure to disclose information about Māori traditional knowledge when making an application.

Little impact for New Zealand

If New Zealand were to sign up to the Treaty, it is unlikely to drastically alter the current patent system.

It would, however, require that New Zealand adopt a process to penalise an applicant who fails to disclose that an application incorporates genetic resources and/or Traditional Knowledge. This might help prevent the misappropriation of Māori traditional knowledge and create a pathway to challenge patent applications that fail to disclose the reliance on Traditional Knowledge.

Further, while the Treaty focuses on local efforts to protect native genetic resources and indigenous persons' knowledge (i.e. by requiring local databases and working groups), those member states that commit to the Treaty will also need to acknowledge and protect the genetic resources and indigenous knowledge of indigenous groups from other countries. New Zealand’s patent system would also need to adapt to introduce processes to review patent applications that incorporate genetic resources and/or Traditional Knowledge belonging to indigenous populations outside New Zealand.  

Despite the Treaty being adopted in May, there has been no public statement from the New Zealand Government about the adoption of the Treaty and no indication that signing up is any sort of legislative priority. Hopefully, one will come soon, but for now it seems that New Zealand will not become a party to the Treaty in the short-term and so the Treaty is unlikely to lead to any major changes to New Zealand’s patent system.

We will, however, be continuing to monitor the Treaty and any other changes to New Zealand’s patents regime. If you need advice about patents or how Traditional Knowledge might impact your business, get in touch.