The Intellectual Property and Traditional Knowledge Puzzle Wend Wendland, Director, Traditional Knowledge Division

Text-based negotiations with the objective of reaching agreement on a text(s) of an international legal instrument(s) which will ensure the effective protection of genetic resources, traditional knowledge and traditional cultural expressions

Challenges . . . Diverse stakeholders, diverse objectives International coherence: fragmentation of international norm-setting Top-down or bottom up: minimal successful national experience Legislative approach: interface with practical mechanisms Participation: challenges to inclusivity

Opportunities. . . Historical opportunity: first developing country-led IP normative process Cutting edge: fresh uses for age-old IP values and principles Narrowing the trust-gap: growing confidence in the process International comity: IP and mutual supportiveness

Traditional knowledge: draft sui generis instrument Traditional cultural expressions: draft sui generis instrument Genetic resources: draft ‘objectives and principle’; textual proposals on a mandatory disclosure requirement; database proposals http://www.wipo.int/tk/en/igc/index.html

What is “traditional” knowledge? Publicly available TK? Traditional knowledge and traditional cultural expressions What is “traditional” knowledge? Publicly available TK? Who should the beneficiaries of protection be? How should traditional knowledge be protected? Exclusive right/right of prior and informed consent?

GRs are not intellectual property Genetic resources GRs are not intellectual property Access and benefit-sharing regulated by the CBD, [Nagoya Protocol] and the FAO’s International Treaty For intellectual property, two main issues: ‘defensive protection’ of GRs: prevention of erroneous patents: databases proposal (quality of patent examination issue) proposed disclosure requirement: (CBD implementation issue)

Suggested objectives…. Acknowledgement and benefit-sharing Innovation Robust public domain Equitable access to benefits of innovation Practical implementability

Models worth looking at Compensatory liability scheme (Reichman and Lewis, 2005) FAO’s International Treaty on Plant Genetic Resources for Food and Agriculture Pacific Model Law on Traditional Knowledge and Cultural Expressions WHO Legal Framework for Sharing of Pathogens, 2011 Waitangi Tribunal Report 2011 (WAI 262 Report) (New Zealand) (1) originator can prevent wholesale duplication of his innovation (2) second-comer may improve upon the innovation and shall pay compensation to originator (3) originator has access to improvements made by the second comer and pays compensation to use and improve further: all for a limited period Acknowledgement; right to use; benefit-sharing Provider countries must provide virus; companies may claim IP rights over derivative vaccines, drugs, diagnostic and research tools; provider developing countries get various forms of benefits, including a non-exclusive, royalty-free license to use the technologies patented by the companies: patents may be licensed to WHO which sub-licenses to developing country manufacturers; patents may be contributed to a patent pool administered by WHO; differential terms depending on user; two standard MTAs

WIPO IGC has three sessions left before a decision on a Diplomatic Conference will be taken in September 2012 February 2012: genetic resources April 2012: TK July 2012: TCEs

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