As noted in this post from last week, WIPO recently wrapped up the 30th Session of the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge, and Folklore (IGC) in Geneva, Switzerland.
The focus of the 3oth IGC was Genetic Resources (GR), with WIPO members seeking to advance the current draft text on a possible legal instrument regulating GR. A recent review of the 30th IGC finds that while some incremental progress has been made in clarifying divergent national positions, substantial disagreements remain over core elements of any future legal instrument. These disagreements centre on the inclusion mandatory disclosure requirements and the nature and scope of so-called "defensive" measures.
Brazil and India, megadiverse countries and global leaders in the regulation of GR, used the 30th IGC to argue that the "trigger for disclosure" (i.e. when to include a label indicating country of origin) is met whenever a claimed invention includes any uses of GR. The EU and United States disagree with this position, arguing it will add uncertainty to the existing patent system, complicating the implementation of any benefit sharing regime. For its part, the EU stressed that a labelling obligation only arises where an invention is directly based on a specific genetic resource, rather than the broader "any use" standard advocated by Brazil and India. Canada maintains that mandatory disclosure regimes will give IP officers tasks beyond their material capacity and expertise, by forcing them to perform activities like checking the accuracy of a patent applicant's PIC and MAT claims. A compromise proposed by Australia ("directly based" on the "use of GR") was rejected by members. The general consensus among "western" IGC participants was that existing IP systems adequately guards against the erroneous granting of patents (no word, however, on the inherent tension between Indigenous TK and a western, market oriented IP system).
Also discussed at the 30th IGC were possible defensive mechanisms to prevent misappropriation of GR and the erroneous granting of patents, with the United States pressing for a publicly accessible database of genetic resources. This proposal generated significant concern among Indigenous delegates to the IGC, who stressed that any such database effectively places Indigenous TK into the public domain, transforming the nature of that knowledge (which is intimately linked to the culture and history of the Indigenous peoples who hold it) by stripping it of its historical context and severing the intimate connection between knowledge and knowledge holders, who are often elders in the community.
Notwithstanding the failure of WIPO members to resolve these outstanding issues, attendees at the 30th IGC have expressed optimism that progress is still being made. Professor Chidi Oguamanam, ABS Canada's principle investigator and a Nigerian member of the African Group expert delegation to the IGC, noted that "[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."
Dr. Oguamanam noted that the constructive engagement exhibited by most parties to the 30th IGC will serve the process well as it winds its way toward the next WIPO General Assembly in 2017, where member states will formally decide whether or not to hold a diplomatic conference to continue text-based negotiations.
The next IGC meeting is scheduled for September 19-23 in Geneva, where the focus of negotiations will shift from GR to TK.
A video prepared by WIPO introducing the work of the 30th IGC can be viewed here.