Written By Lorelei Graham and Vincent de Grandpré

On May 24, 2024, after nearly 25 years of negotiations, the World Intellectual Property Office (WIPO) announced that member states, including Canada, had agreed to a new Treaty on Intellectual Property, Genetic Resources and Associated Traditional Knowledge. This Treaty is a long-awaited first step in addressing the relationship between intellectual property (IP) over genetic resources and related Indigenous traditional knowledge.

Key Provisions of the Treaty

The Treaty aims to enhance the transparency and quality of the patent system and prevent the erroneous grant of patents for inventions that are not novel or inventive having regard to genetic resources or associated Indigenous traditional knowledge. To this end, the Treaty provides that each contracting state shall prospectively require patent applicants claiming an invention "based on" "genetic resources" to disclose the country of origin of the genetic resources or, if this is not known, the source of the genetic resources (Article 3.1). Each contracting state must also require applicants whose inventions are based on traditional knowledge associated with genetic resources to disclose the identity of the Indigenous Peoples or local community who provided the traditional knowledge associated with the genetic resources (Article 3.2).

"Genetic resource" is defined broadly as "any material of plant, animal, microbial or other origin containing functional units of heredity" of actual or potential value. Moreover, a claimed invention is "based on" a genetic resource if it "must have been necessary for the claimed invention", and the claimed invention depends on the specific properties of the genetic resources and/or on the traditional knowledge associated with those genetic resources.

The Treaty contemplates that each contracting party will put in place "appropriate, effective and proportionate" legal, administrative and/or policy measures to address a failure to disclose required information about the origin or source of genetic resources. However, no contracting state shall invalidate or render unenforceable any conferred patent rights solely based on an applicant’s failure to disclose the information required by the Treaty (Article 5).

The Treaty also includes framework provisions about creating an assembly of contracting parties to address the maintenance and development of the Treaty, which the contracting states agree to review four years after its coming into force. The Treaty recognizes that contracting parties may also establish information systems, including databases of genetic resources and traditional knowledge associated with genetic resources (Article 6).

The Treaty will come into force when 15 eligible states ratify it. Whether and when Canada does so, or when Canada adopts implementing legislation, remains to be seen.

How You May Prepare Now

Key Canadian industries, including agriculture, can prepare for compliance with the new Treaty by taking some of the following steps:

1. Understand the Treaty: Consider the provisions relating to the new disclosure requirement for patent applicants whose inventions are based on genetic resources and/or associated Indigenous traditional knowledge.
2. Identify relevant genetic resources and Indigenous traditional knowledge: Consider if your organization's work involves genetic resources or associated traditional knowledge that would need to be disclosed. Genetic material is defined broadly and certainly includes medicinal plants, crops, and animal breeds.
3. Trace the origin: Document the country of origin or source of the genetic resources and the Indigenous Peoples or local community that provided any related traditional knowledge which was necessary to arrive at the invention.
4. Develop compliance procedures: While Canada's implementation of the Treaty may be years away, start establishing internal procedures to document the origin of genetic resources and of any associated Indigenous knowledge. 
5. Stay informed: Stay informed about the Treaty's implementation in Canada, including about any consultations that may take place before implementing legislation is drafted.

WIPO's new Treaty could become particularly significant in Canada given its rich biodiversity and many Indigenous Peoples.To discuss the potential impact of the Treaty on your organization, please contact Lorelei Graham or Vincent M. de Grandpré.