#1 Follow up exchange and resource sharing on Patent Disclosure Requirements: Community of Practice Workshop on the Nagoya Protocol on ABS for European, CIS, Arab and Asian countries
On behalf of the UNDP-GEF Global ABS Project, we would like to thank all experts, panelists and participants for their outstanding contributions and active participation during the Community of Practice (CoP) Workshop on the Nagoya Protocol that was recently held in Istanbul from 9th to 12th April 2019!
Among other substantive topics, the workshop discussed patent disclosure requirements for genetic resources and associated traditional knowledge as a possible checkpoint to monitor compliance under the Nagoya Protocol. It was noted that a balanced and proactive use of current mechanisms and flexibilities that are available within the international intellectual property (IP) system can further its synergetic implementation with key biodiversity-related instruments such as the CBD and its Nagoya Protocol. However, it was also argued that several ‘systemic’ limitations persist. The current approach for harmonization at the multilateral level has not yet proven its worth for countries and stakeholders awaiting to achieve a multilateral outcome of legally binding nature.
However, new global standards of transparency, fairness, equity and justice may already be construed through a bottom-up approach at the national and regional levels. The adoption and diffusion of implementable common standards and ‘best practices’ concerning the disclosure of genetic resources and associated traditional knowledge in patent applications are crucially important elements in this endeavour. The globalization of such standards and ‘best practices’ can immediately be brought to fruition by the countries that have already adopted some form of patent disclosure through relatively minor fine tuning of their national patent disclosure measures.
At present, many pre-Nagoya patent disclosure requirements only apply to genetic resources and traditional knowledge whose provenance is the same country that has established the patent disclosure requirement. Indeed, under the Nagoya Protocol, if a party designates its patent/IP office as a compliance checkpoint under Article 17, then the geographical scope of the requirement should at least encompass all genetic resources originating from any other contacting parties. This relatively simple fine-tuning of existing legislation could allow fulfilling a core monitoring requirement of the Nagoya Protocol on ABS, while also enabling wider synergies with the IP system.
Many efforts to support the implementation of the Nagoya Protocol and related regulatory instruments are well underway at the national level. National and regional level initiatives can provide a powerful impulse for the development of a new generation of patent disclosure requirements that are directly connected to ABS legislation. Likewise, the progressive development and reform of domestic IP systems that have introduced additional disclosure requirements, coupled with duly designed interfaces with international IP treaties, particularly the WIPO PCT system, hold potential for diffusing the effects of any single national disclosure at a much wider scale across multiple jurisdictions. This is because inventions that belong to the same patent family, for which an initial single disclosure of origin is triggered, can technically be traced in all countries where a subsequent filing is made. This potentially pervasive effect of disclosure can effectively be used against the misappropriation of genetic resources and traditional knowledge that occurs in any country – regardless of whether such country is a Party to the Nagoya Protocol or not.
The global environmental law standards of transparency, farness, equity and global justice, which have emerged in the field of biodiversity law, have exercised an undeniable influence and attraction on the international political discourse in international IP policy making at WIPO and the WTO. Furthermore, the implementation of patent disclosure requirements at the national and regional levels is an important technical stepping-stone to help IPLCs and biodiversity-rich developing countries benefit from the dividends arising from the commercial use of biodiversity.
We will be pleased to share additional resources and blog posts on the substantive topics discussed at the CoP workshop soon!
Further reading on patent disclosure requirements: Claudio Chiarolla & Burcu Kılıç, Key Questions on Patent Disclosure Requirements for Genetic Resources and Traditional Knowledge (World Intellectual Property Organization, 2017), p. 50, available at: https://www.wipo.int/publications/en/details.jsp?id=4194b (available in all UN official languages).