Crunch Time at WIPO-IGC: A Last Attempt to Draft a New Genetic Resources Text?
On June 26, 2018, the long running World Intellectual Property Organization (WIPO) Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) reconvened in Geneva for its 36th session. Since 2000, the IGC has had a mandate to negotiate text-based instrument(s) for the effective protection of genetic resources, traditional knowledge and folklore (alternatively known as traditional cultural expressions). The committee was inaugurated in 2001 and has been holding negotiations since then pursuant to its mandate which has been traditionally renewed by the WIPO General Assembly every two years.
The June 26-29 meeting is the second under the 2018-2019 biennium of the IGC and also the second opportunity for the experts to conclude negotiations on the genetic resources texts. Negotiations have been ongoing on a parallel basis on three instruments under the IGC mandate, namely negotiations on a text for GR, a text for Traditional Knowledge (TK) and a text for Traditional Cultural Expressions (TCEs). The GR text is perhaps the most advanced of the three instruments. The 20th IGC produced the first consolidated document on GR in 2012 which continued to evolve in subsequent IGCs: 22, 23, 29 and 30. The most recent attempt at improving the consolidated IGC text on GR was at the 35th IGC in March 2018, which you can read more about here.The current exercise is the last opportunity for experts to deliberate on the subject of GR under the current mandate of the IGC.
To underscore the seriousness which WIPO General Assembly attaches to the negotiations, under the 2018-2019 biennium it offered the IGC the option “to establish ad hoc expert group(s) to address specific legal, policy and technical issues.” The resulting work of the technical expert group is to be made available to IGC to facilitate its deliberations. The IGC has taken advantage of this resource for the 36th session and it inaugurated an Ad Hoc Technical Expert Group on Genetic Resources at the completion of the 35th IGC in March 2018. All experts drawn from different parts of the world on a balanced reginal spread were required to participate in their personal capacities. Their mandate was to provide legal, policy and technical advice and analysis including, where appropriate, texts for the consideration of IGC.
The Ad Hoc Technical Expert convened ahead of the formal commencement of the IGC on Sunday June 24, 2018 in Geneva. In a brief issued by the Chairperson of the IGC, Australia’s Ian Goss, the expert group was mandated to address the following technical and legal issues:
- Subject Matter and Scope of a GR text (specifically whether the GR instrument should cover the intellectual property system or be limited to patents only)
- Trigger for Disclosure (what connection will the claimed invention or, as the case may be, applicable intellectual property have with GRs or associated TK to require disclosure, and what should be disclosed in patent or related IP applications)
- Clarity on the Use of Terms such as “genetic resources,” “traditional knowledge associated with genetic resources,” and “derivatives” (specifically whether the GR instrument should focus on GRs qua GRs or whether it should focus on TK associated with GRs or both and their derivatives)
- Consequences of Non-disclosure (what sanctions or remedies will apply and in what circumstances if a patent/IP applicant does not make required disclosure, and when and if revocation could apply as sanction for non-disclosure)
- The Use of Databases on GRs and TKs for purpose of the GR text – technical issues such as safeguards and practical issues relating to the establishment and functioning of databases
- Due Diligence Mechanism – technical issues relating to the establishment and functioning of various kinds of such mechanism
On the first day of the 36th IGC, the Ad Hoc Technical Expert Committee, co-chaired by Pedro Roffe of the Centre for International Trade and Sustainable Development and Ms. Krisztina Kovacs (Policy Officer, European Commission) presented its report to the IGC at plenary. Consequently, the IGC adopted the strategy of breaking into three contact groups to focus more intensely on narrowed negotiations with a concentration of experts who will report to the plenary as it remains the ultimate decision-making body for the expert committee.
Pictured above are members of the Africa Group at the WIPO IGC.
The 36th IGC has its work cut out as experts make the last-ditch effort to have an outcome ready for the WIPO General Assembly and move the process to a diplomatic conference. The latter is the forum where outstanding issues stand a chance for political resolution in the spirit of international comity.