Global IP treaty to boost innovation, help biodiversity. But some see red flags

The World Intellectual Property Organization (WIPO) treaty, adopted on 24 May after more than two decades of negotiations, introduces a much-needed legal framework for utilising genetic resources and traditional knowledge. 

India, which has its own robust set of laws to protect the country’s vast resources and traditional knowledge, played a key role in the adoption of the treaty by WIPO. The UN agency has 193 members nations, including the US, the UK, and China.

The treaty has crucial implications for sectors such as pharmaceuticals and biotechnology, as companies must now disclose the sources of their knowledge and ensure it is used ethically and legally, minimising the risk of legal disputes and international exploitation. 

It also requires patent applicants to disclose the origin of genetic resources and associated traditional knowledge to ensure indigenous communities receive due recognition and financial benefits from their contributions.

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“The treaty could potentially attract investment to India, though several factors will influence the extent of this impact," said Jogeshwar Mishra, partner at law firm Shardul Amarchand & Mangaldas & Co. “These include providing a clearer legal framework for the use of genetic resources and traditional knowledge."

The treaty would also improve market confidence, Mishra said, as it would ensure that “traditional knowledge and genetic resources are used ethically and legally, minimising the risk of legal disputes".

Subodh Gupta, CEO of Lord's Mark Microbiotech, echoed these sentiments, emphasising that the treaty would benefit India’s biodiversity and traditional knowledge. 

“The treaty ensures that (India’s) vast repository of biodiversity is now a part of the global IP framework," he said. “In addition, by acknowledging the role of indigenous peoples, the treaty facilitates increased transparency and strengthens the ethical framework. However, concerns about individual privacy must also be addressed."

Not everyone is as sanguine, though, especially as several changes proposed by India have not been included in the treaty. 

“The only reason to celebrate is that the treaty has been adopted despite opposition from developed countries," said Vibha Varshney, consulting editor at Down To Earth magazine.

Varshney said the treaty fails to adequately address biopiracy and that India might end up diluting its patent laws as it amends them to align with the treaty.

Not a complete win

Legal experts caution that aligning India’s Patents Act and the Biological Diversity Act with international treaty standards may require amendments that could potentially dilute existing protections meant to safeguard traditional knowledge and genetic resources. 

They also said the WIPO treaty’s focus on patents may overlook other forms of intellectual property exploitation. Challenges such as documenting traditional knowledge and ensuring compliance pose additional complexities.

In other words, according to the experts, implementing the treaty in India won’t be straightforward and could present significant challenges.

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“The Indian Patent Act would require a few amendments to implement this treaty, primarily to: (a) Broaden the scope of disclosure regarding genetic resources and associated traditional knowledge; (b) Introduce new provisions for sanctions, including deemed revocation and other remedies; (c) Empower and authorize the Controller General to establish a nodal office/authority for data collection, source verification, and authentication," explained Subhash Bhutoria, founder and principal at LAW SB.

Neha Khanduri, counsel at law firm Singhania & Co., shared a similar view. The treaty “does not include any directions for bridging the gap between the patent offices and the resources with accumulated traditional knowledge from Indigenous communities to address the issues of access and benefit sharing," Khanduri said.

The exploitation of genetic resources

The WIPO treaty, long advocated by South Asian nations whose traditional knowledge and practices were subject to exploitation by companies from developed countries, requires contracting parties to amend their legal frameworks to enforce disclosure of origin obligations on patent applicants.

Genetic resources are found in medicinal plants, agricultural crops, and animal breeds. While genetic resources themselves cannot be directly protected as intellectual property, inventions developed using them can, often through patents.

Some genetic resources are associated with traditional knowledge through their use and conservation by indigenous peoples and local communities over generations. This knowledge is sometimes used in scientific research.

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The patenting of the healing properties of turmeric, traditionally used in India for its medicinal benefits, by a US university is an exemplar instance of intended exploitation of such genetic resources. 

The University of Mississippi had in 1995 obtained a patent from the US Patent and Trademark Office for the healing properties of turmeric. However, the patent was later revoked upon being challenged by an Indian scientist.

Similarly, US-based W.R. Grace Co. and the US department of agriculture had obtained a patent from the European Patent Office for the anti-fungal properties of neem oil. The patent was later revoked on the basis of the prior use of neem extracts.

The WIPO treaty will become international law three months after 15 countries deposit their instruments of ratification or accession. But this could take long.

“The ratification of the treaty by respective nations will depend on the existing framework for the protection of traditional knowledge and genetic resources," said Khanduri of Singhania & Co. “Following ratification, the establishment of a library and resources for traditional knowledge and related materials will be necessary, though it is a time-consuming process."