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

2. 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

3. 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

4. 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

5. 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

6. 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?

7. 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)

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

9. 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

10. 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

11.
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