Patent disclosure requirements relating to genetic resources: will they work?

The protection of genetic resources, traditional knowledge and folklore has been under discussion in WIPO since 2000. ICC supports the WIPO process and the principles of prior informed consent and the fair and equitable sharing of benefits from the use of genetic resources and traditional knowledge, as established in the Convention on Biological Diversity (CBD).

ICC also supports the goal of preventing the wrongful grant of patents. Nonetheless, there is concern that resources and knowledge are being taken from countries without proper permission or compensation, i.e., that they are being used without agreement to access and without appropriate benefit-sharing as envisioned under the CBD. In consequence, one proposal to combat this “misappropriation” is to require patent applicants to disclose, in respect of genetic resources or their derivatives, the country of source or origin from which they were obtained. Some proposals would also require that the applicant show that he has formal consent from the source of the materials or knowledge, and has agreed to share benefits. Certain countries have already incorporated such requirements in their patent laws. Failure to make a correct disclosure may invalidate the patent.

In ICC’s view, all such requirements1 should be resisted, for the following reasons:

• they hinder rather than promote the objectives of the CBD;
• they are ineffective and would rarely, if ever, contribute to goals of monitoring use of genetic resources and ABS compliance or providing useful information;
• they impose on patent applicants requirements that are unclear and lead to legal uncertainty;
• they impose requirements that are impracticable or impossible to meet;
• they are incompatible with the patent system; and
• alternative approaches exist that can combat “misappropriation” without the drawbacks of a disclosure requirement for patent applications.

The objectives and measures of the CBD

The objectives of the CBD are well-known. They are:

• conservation of biological diversity;
• sustainable use of its components; and
• facilitation of access to genetic resources and the fair and equitable sharing of the benefits from their use.

To promote these objectives, the CBD provides:

• CBD Parties will create conditions to facilitate access to genetic resources for uses by other Parties;
• unless otherwise determined by the Party, such access will be subject to prior informed consent from the Party (or, where appropriate, the holder); and
• where applicable, benefits from such access will be equitably shared on mutually agreed terms. Th

These objectives and measures are widely accepted and ICC supports them. However, disclosure of source or origin in patent applications does not help to achieve these objectives or make the measures work better.