Following nearly twenty-five years of negotiations, members of the World Intellectual Property Organization (WIPO) recently adopted a treaty implementing the new requirement for international patent applicants to disclose in their applications any Indigenous Peoples and/or communities that provided traditional knowledge on which the applicant drew in creating the invention sought to be patented.¹ The treaty was adopted at WIPO’s “Diplomatic Conference to Conclude an International Legal Instrument Relating to Intellectual Property, Genetic Resources, and Traditional Knowledge Associated with Genetic Resources,” which was held May 13–24.² The goal of the treaty, known as the WIPO Treaty on Intellectual Property, Genetic Resources and Associated Traditional Knowledge, is to “prevent patents from being granted erroneously for inventions that are not novel or inventive with regard to genetic resources and traditional knowledge associated with genetic resources.”³ This treaty—the first treaty of its kind, linking intellectual property and Indigenous Peoples—also aims to “enhance the efficacy, transparency and quality of the patent system with regard to genetic resources and traditional knowledge associated with genetic resources.”⁴ 

Once the treaty is ratified, patent applicants will have new (but nonretroactive) disclosure requirements for international patent applications. Specifically, under Article 3, patent applicants filing an international application under the Patent Cooperation Treaty will now be required to ask themselves whether the claimed invention is “based on” genetic resources or associated traditional knowledge. In Article 2 of the treaty, WIPO defines “based on” as the necessity for “genetic resources and/or traditional knowledge to be essential to the claim contained in the invention and that the claim depends on the specific properties of the genetic resources and/or on the associated traditional knowledge associated with genetic resources.”⁵ 

1. If the invention is based on genetic resources or associated traditional knowledge, patent applicants must “disclose the country of origin of the genetic resources and/or the Indigenous Peoples or local community providing the associated” traditional knowledge.”⁶

2. If the source of the traditional knowledge is “unknown,” the source of the genetic resources or associated traditional knowledge must be disclosed, if known.⁷

3. If none of the above information is known, the patent applicant will be required to provide a declaration so affirming.⁸  

Failure to disclose the above information would be subject to potential sanctions, but patent applicants will be given the opportunity to rectify the failure to disclose. 

The treaty is expected to take effect three months after 15 member countries deposit their respective instruments of ratification or accession with the WIPO secretariat. Negotiations are set to continue in December 2024 on other potential treaties that could further protect traditional knowledge and traditional cultural expression. 

WilmerHale previously published an article entitled “The US Patent and Trademark Office Seeks Comments From Tribes on Genetic Resources, Traditional Knowledge, and Cultural Expressions” on November 1, 2023.