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WIPO Process Regarding an Invitation by the Convention on Biological Diversity on Access to Genetic Resources and Disclosure Requirements in IP Rights Applications

In April 2002 the sixth meeting of the Conference of the Parties (COP) to the Convention on Biological Diversity (CBD) invited the World Intellectual Property Organization (WIPO) to prepare a technical study on methods within the patent system for requiring disclosure relevant to genetic resources and traditional knowledge, and to report its findings to the seventh meeting of the COP (Decision VI/24C, paragraph 4). Following this request, a draft Study was prepared by WIPO, based on responses to a questionnaire [PDF] circulated to the Member States of WIPO (see WIPO/GRTKF/IC/Q.3 and WIPO/GRTKF/IC/5/10).

In September 2003 the Thirtieth Session of the WIPO General Assembly approved the transmission of the WIPO Technical Study on Disclosure Requirements Concerning Genetic Resources and Traditional Knowledge [PDF as a technical reference document for reference by the COP and relevant subsidiary working groups of the CBD (see WO/GA/30/8, paragraph 97). The seventh meeting of the COP considered the Technical Study (see UNEP/CBD/COP/7/INF/17 [DOC]) and noted "with appreciation the Technical Study on Disclosure Requirements Concerning Genetic Resources and Traditional Knowledge prepared by WIPO at the request of the Conference of the Parties … and considering the contents of the Technical Study to be helpful in the consideration of intellectual property-related aspects of user measures." (Decision VII/19E, preamble).

Further to this preexisting collaboration between WIPO and the CBD, the seventh meeting of the COP invited WIPO "to examine, and where appropriate address, taking into account the need to ensure that this work is supportive of and does not run counter to the objectives of the CBD, issues regarding the interrelation of access to genetic resources and disclosure requirements in intellectual property rights applications, including, inter alia:

a) Options for model provisions on proposed disclosure requirements;
b) Practical options for intellectual property rights application procedures with regard to the triggers of disclosure requirements;
c) Options for incentive measures for applicants;
d) Identification of the implications for the functioning of disclosure requirements in various WIPO-administered treaties;
e) Intellectual property-related issues raised by a proposed international certificate of origin/source/legal provenance;

and regularly provide reports to the CBD on its work, in particular on actions or steps proposed to address the above issues, in order for the CBD to provide additional information to WIPO for its consideration in the spirit of mutual supportiveness." (Decision VII/19E, paragraph 8).

At its Thirty-first Session the WIPO General Assembly considered the new invitation from the COP (see document WO/GA/31/8) and decided that "WIPO should respond positively." It established a timetable and modalities for WIPO's response, involving five steps: (i) an invitation by WIPO Member States to submit comments and proposals; (ii) preparation of a draft examination and its circulation for comments; (iii ) observations and comments on the draft to be submitted by Member States and accredited observers by the end of March 2005; (iv) publication on the website and in a consolidated document of all comments and observations received; (v) convening of a one-day ad hoc intergovernmental meeting to consider and discuss a revised version of the draft which would be available at least 15 days before the Meeting; (vi) preparation of a further revised draft to be presented to the WIPO General Assembly at its ordinary session in September 2005 for consideration and decision.

In line with the first step, WIPO Member States were invited to submit proposals and suggestions prior to the agreed deadline of December 15, 2004. The following proposals and suggestions (in PDF format) were received from Member States of WIPO (listed in order of receipt):

Based on these proposals, the first draft examination [PDF] was prepared and circulated for comment, thus completing step (ii) of this process.

As foreseen in step (iii) of the timetable, the first draft of the examination (WIPO/IP/GR/05/01) was circulated to all Member States of WIPO and observers accredited to the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore, Standing Committee on the Law of Patents and Working Group on PCT Reform for observations and comments. All Member States and these accredited observers were invited to submit observations and comments on the draft. The following comments (in PDF format) were received from the Member States and the accredited observers:

An ad hoc Intergovernmental Meeting was convened on June 3, 2005, to consider a revised draft of this document (WIPO/IP/GR/05/03), as foreseen in step (iv) of the agreed modalitites and timetable.

A further draft was prepared on the basis of guidance given at the ad hoc intergovernmental meeting, and further written comments submitted by participants. This further revised draft was circulated for consideration at the WIPO General Assembly in September 2005 (document WO/GA/32/8). The following table summarizes the consultative process, and gives links to the relevant documents.

  1. Invitation to all Member States of WIPO to submit proposals and suggestions:
    Compilation of proposals and suggestions received: WIPO/IP/GR/05/INF/1

  2. First draft of the examination prepared, published and circulated for observations and comments:
    First draft examination: WIPO/IP/GR/05/01

  3. Member States and accredited observers submit observations and comments on the draft:
    Compilation of observations and comments: WIPO/IP/GR/05/INF/2, WIPO/IP/GR/05/INF/2 Add.

  4. Comments and observations published on the WIPO website and in a consolidated document:
    Consolidated document: as above

  5. Ad hoc intergovernmental meeting to consider and discuss a revised version of the draft.  Held on June 3, 2005; 
    Chaired by H.E. Mr. Samuel Amehou, Ambassador of Benin

  6. International Bureau to prepare a further revised draft for presentation to the WIPO General Assembly at its ordinary session in September 2005 for consideration and decision:
    Annex to document WO/GA/32/8
 

Reference material and resources

Traditional Knowledge, Genetic Resources and Traditional Cultural Expressions/Folklore

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