After assessing the requirement to mandatorily disclose the source of genetic resource/ associated traditional knowledge under the recent WIPO treaty, in part II of his post, Dr. Anson CJ takes a look at the implication of this requirement on India. Dr. Anson is an Assistant Professor at the Inter University Centre for IPR Studies, Cochin University of Science and Technology, Kochi and has previously contributed to the blog here. Interested readers can also take a look at Part I here, and here and here for other posts on the treaty.
WIPO Treaty on Intellectual Property, Genetic Resources and Associated Traditional Knowledge: Concerns of India and Developing Nations- Part II
Dr. Anson C J
An Indian Perspective on the WIPO Treaty on Disclosure of GR/GRATK
The WIPO Treaty on the Disclosure of Genetic Resources (GR) and Genetic Resources Associated Traditional Knowledge (GRATK) presents significant challenges for India, primarily due to its compromises in access and benefit-sharing (ABS) linkages with disclosure of origin of GR/ATK. These ABS linkages are crucial for ensuring that communities and countries providing genetic resources receive equitable benefits from their use. For India, a thorough analysis is necessary, considering two distinct scenarios. In the first scenario, India becomes a top innovation country, leveraging its vast biodiversity and traditional knowledge to drive cutting-edge research and development. In the second scenario, where Indian patents have limited demand in the international market, the treaty might impose additional burdens without proportionate benefits. This could stifle innovation and disadvantage Indian stakeholders. The treaty’s implications vary based on two hypothetical scenarios for India:
Scenario 1- Technological Boom by 2030-35 in India especially for domestic Indian Patents :
If India achieves significant technological advancements, patents owned by Indian entities may gain high demand in developed nations. This scenario aligns with India’s 2030 mission to become an innovative country, benefiting from the treaty’s focus on patents (Dutfield, 2011). Then also, bringing a sharing mechanism for incentivizing the GR/ATK will bring more prosperity to the economy. That being said, of course, so far, there is no effective mechanism in India to effectively implement the benefit-sharing mechanism apart from the isolated cases like Arogyapacha and some ayurveda medicines. Also, it is interesting to note that the number of patents in India is increasing considerably, and the world patent data is also growing positively. The demand for Indian patents in other countries is actually bringing India economic prosperity. Considering the reports of the South Centre BOP and BOR on intellectual property, it is massive loss. There is a misunderstanding that the number of patents granted and economic prosperity is a point worth considering. Developing countries with many patents might not see a corresponding increase in economic benefits. Rather, key technology patents will bring economic prosperity. In fact, India’s experience suggests a significant loss in intellectual property transactions, highlighting the need for a system that prioritizes both innovation and fair compensation for utilising GR/TK.
Scenario 2 – Indian Patents Have Limited International Demand
A high number of patents might indicate robust research and development activities, but it doesn’t necessarily translate to economic benefits for developing countries. This disconnect arises because the current intellectual property framework focuses heavily on patenting final products rather than the underlying genetic resources or traditional knowledge used in their development. Developing countries may end up granting patents for inventions derived from their GR/TK, but without fair compensation for the original resources or knowledge. This situation creates a disincentive for developing countries to share their valuable genetic resources. If the economic benefits primarily flow to developed countries with the technological capacity to develop patentable products, there’s little motivation for developing countries to disclose their resources freely (Group I mentioned above). A fairer system would ensure that developing countries receive a share of the profits generated from inventions utilizing their GR/ATK. Disclosure and benefits sharing are the two sides of the same coin. This could be achieved through mechanisms like benefit-sharing agreements, where companies or institutions negotiate compensation with source communities to access and utilise their resources and knowledge.
Overall, the treaty represents a step forward in regulating the use of genetic resources and traditional knowledge in patents, but its focus on patents and innovation over equitable benefit-sharing raises critical concerns for developing countries, especially CBD countries. The definitions of “source of traditional knowledge” and “source of genetic resources” include databases and publicly accessible records (even though it is in “may”). While this broad scope aims to ensure transparency, it also raises concerns about feasibility and effectiveness, especially for nations with rich, undocumented TK. Developing countries need to be particularly concerned about the prioritization of patents by the crucial issue “declaration” and “disclosure”. Additionally, articles outlining the disclosure framework, such as Articles 3.1, 3.2, and 3.3, lack mandatory due diligence requirements, creating potential loopholes for the exploitation of GRs and TK without proper compensation.
Conclusion
The WIPO Treaty on the Disclosure of Genetic Resources and Associated Traditional Knowledge marks a pivotal moment in international intellectual property law. While it aims to address erroneous patents and promote transparency, it raises significant concerns for developing nations like India especially in Article 3.3 provision on “declaration”. The primary concern seems to be the detachment of patent disclosure from access and benefit sharing. Also, the meaningful discussions were deviated from the forty seventh session to the final one of the diplomatic conference of GR/ATK. For India, the treaty’s implications vary depending on its future as a top innovation country or one with limited international patent demand. The lack of mandatory due diligence search requirements for disclosing genetic resource origins and no provision for revoking of patents based on Article 3 poses risks of exploitation without fair acknowledgement. Although the Indian government heralds the treaty as a victory as it is aligned with the Indian Patent Act, several critical points remain untouched, as reflected in national statements. Developing countries must advocate for stricter requirements to ensure their genetic resources and traditional knowledge are adequately protected and compensated, and this treaty does not appear to have been well-negotiated from the perspective of the current Indian economic balance.