Traditional knowledge (TK), according to the World Intellectual Property Organisation (WIPO), is the knowledge, know-how, skills, and practices based on the experience of indigenous people. It is developed, sustained and passed on from one generation to another within a community, often forming part of its cultural or spiritual identity. TK by itself is not protected by a conventional intellectual property (IP) rights-based system, although inventions based on TK may qualify for IP protection.
A new Treaty on TK and IP
In May 2024, the member states of WIPO approved a new Treaty related to IP, genetic resources and associated traditional knowledge. The Treaty is the result of decades of negotiations which began in 2001. It is the first WIPO Treaty to address the interface between intellectual property, genetic resources and traditional knowledge. It is also the first WIPO Treaty to include provisions specifically for Indigenous Peoples as well as local communities. The objectives of this Treaty are to:
(a) enhance the efficacy, transparency and quality of the patent system with regard to genetic resources and traditional knowledge associated with genetic resources, and
(b) prevent patents from being granted erroneously for inventions that are not novel or inventive with regard to genetic resources and traditional knowledge associated with genetic resources.
The Treaty is expected to combat misappropriation of traditional knowledge and biopiracy. It will come into force three months after contracting parties have deposited their instruments of ratification or accession. After coming into force, the Treaty will establish an international legal framework requiring patent applicants to disclose the origin of genetic resources and associated traditional knowledge used in their inventions.
Key provisions of the Treaty
Article 2 of the Treaty defines key terms including ‘genetic material’, ‘genetic resources’, ‘source of genetic resources’ and ‘source of traditional knowledge associated with genetic resources’. These terms, among others, guide the working of the Treaty.
Article 3.1 of the Treaty provides that where a patent application is based on genetic resources, each Contracting Party shall require applicants to disclose:
(a) the country of origin of the genetic resources, or,
(b) if the information in (a) is not known to the applicant, or is inapplicable, the source of the genetic resources.
Where there is more than one country of origin, the applicant must disclose the country of origin from which the genetic resources were actually obtained.
Similarly, Article 3.2. of the Treaty provides that where a patent application is based on TK associated with genetic resources, each Contracting Party shall require applicants to disclose:
(a) the Indigenous Peoples or local community, as applicable, who provided such TK associated with genetic resources, or,
(b) if the information in (a) is not known, or if (a) does not apply, the source of such TK.
The term “as applicable” in Article 3.2(a) is not intended to provide flexibility to Contracting Parties to not require applicants to disclose the required information. For greater certainty, Article 3.2(a) will be implemented without having any effect on the scope of the disclosure requirement in Article 3.
In cases where none of the information in Articles 3.1 and 3.2 is known to the applicant, each Contracting Party shall require the applicant to make a declaration to that effect, affirming that the content of the declaration is true and correct to the best knowledge of the applicant (Article 3.3).
Under the Treaty, the Contracting Parties must provide guidance to patent applicants on how to meet the disclosure requirement, as well as an opportunity to rectify a failure to include the minimum information referred to in Articles 3.1 and 3.2 or correct any disclosures that are erroneous or incorrect.
The Contracting Parties may establish information systems (such as databases) of genetic resources and traditional knowledge associated with genetic resources, in consultation, where applicable, with Indigenous Peoples and local communities and other stakeholders, taking into account their national circumstances. The Treaty further provides that the Contracting Parties should, with appropriate safeguards developed in consultation, where applicable, with Indigenous Peoples and local communities and other stakeholders, make such information systems accessible to Offices for the purposes of search and examination of patent applications.
TK in India
India has always been proactive in protecting TK and the related rights of indigenous people over their TK and genetic resources. Many years ago, the Council of Scientific and Industrial Research (CSIR) and the Ministry of Ayurveda, Yoga & Naturopathy, Unani, Siddha, Sowa Rigpa and Homoeopathy (AYUSH) set up a Traditional Knowledge Digital Library (TKDL), which is a database of TK of indigenous and local communities of India. This database is available to several patent offices around the world for search and examination purposes.
Indian laws also contain safeguards to protect misappropriation of TK. The Indian Patents Act, 1970, specifically bars from patentability “an invention which in effect, is traditional knowledge or which is an aggregation or duplication of known properties of traditionally known component or components”. [section 3(p)]. Indian patent law also requires an applicant to “disclose the source and geographical origin of the biological material in the specification, when used in an invention”. [(Section 10(4)(ii)(D)]. Additionally, if the biological material is obtained from India, necessary approval under the Biological Diversity Act, 2002 (as amended), from the National Biodiversity Authority is also required prior to obtaining a patent.
The new WIPO Treaty will add considerable heft to the existing protections against misappropriation of genetic resources and TK that are already available in India, as it further empowers the legislature to require mandatory disclosures regarding the source of genetic resources and associated TK. The Treaty may invite some changes to existing provisions in domestic legislations, and it is to be seen how India co-opts these into the law here.
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