Canadian Patent Laws – Impact of Historic International Treaty on Genetic Resources and Traditional Knowledge

History has been made! On May 24, 2024, a Diplomatic Conference of the World Intellectual Property Organization (WIPO, a United Nations agency) adopted the Treaty on Intellectual Property, Genetic Resources and Associated Traditional Knowledge. This marks a long-awaited agreement on the intersection of intellectual property and indigenous rights.

Genetic resources (GR) consist of genetic material of actual or potential value. Traditional knowledge (TK) broadly refers to the cultural heritage, practices and knowledge systems of traditional communities, often passed down the generations through oral traditions such as storytelling. Both GR and TK are based on a collectivist notion that they cannot be “owned” by a single entity.

In contrast, the patent system that is familiar to those of us who live and work in industrialized countries consists of a quid pro quo where the inventor obtains a time-limited monopoly to an invention in exchange for disclosing how that invention works. Many entities that file for patent protection have “discovered” certain properties of natural resources that have long been known to indigenous communities, resulting in patents that have been granted without direct benefit to those communities. A widely cited example involves a patent for a neem tree seed extract that was sold as an
environmentally friendly pesticide. Although the patent holder (US-based entity W.R. Grace) claimed its product was a unique invention, farmers in India had known of the insecticidal properties of neem seeds for centuries. While in this case, the patent was revoked, there are many other instances of patents based on genetic resources/traditional knowledge being granted without the permission of the communities that are the source of the resources/knowledge.

The Treaty aims to change this. It stipulates that where the claimed invention in a patent application is based on genetic resources or traditional knowledge associated with genetic resources, the applicant must disclose the country of origin of the genetic resources, or the indigenous peoples or local community who provided the traditional knowledge associated with genetic resources. In theory at least, such disclosure should provide the patent examiner with sufficient background to be able to determine whether the claimed invention meets the requirements for patentability (i.e. whether it is novel and inventive in light of the prior knowledge).

Canada must now consider whether and when to accede to the Treaty. Before doing so, steps must be taken to amend the Canadian Patent Act to ensure that practical measures exist to implement the Treaty. In the meantime, the conclusion of Treaty negotiations which began in 2001 at WIPO marks a significant milestone. As stated by WIPO Director General Daren Tang, “For the first time, systems of knowledge and wisdom that supported economies, societies and cultures for centuries are now inscribed into the global IP system.”

WIPO’s news release with more information on the Treaty can be found here.

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