Should Companies Stop Stealing Indigenous Peoples' Ancient Medicine Patents?
Published Date: 1/17/2025
Notice
Summary
The U.S. Patent and Trademark Office wants your thoughts on a new global treaty about protecting inventions, genetic resources, and traditional knowledge. This could change how the U.S. handles intellectual property and might affect businesses, researchers, and indigenous communities. You have until March 18, 2025, to send comments and can speak at a hearing on April 29, 2025.
Analyzed Economic Effects
6 provisions identified: 2 benefits, 3 costs, 1 mixed.
Patent applicants must disclose genetic origins
Article 3 of the WIPO Treaty would require patent applicants to disclose the origin or source of a genetic resource (GR) or associated traditional knowledge (ATK) in certain cases. The disclosure requirement is triggered where a claimed invention is "based on" a GR or ATK, which the Treaty defines via a two-part test: (1) the GR or ATK "must have been necessary for the claimed invention"; and (2) "the claimed invention must depend on the specific properties of" the GR or ATK.
Treaty will bind filings in Contracting Parties
Once the Treaty enters into force (see prov_3), its provisions "will apply in any Member State of WIPO that is or subsequently becomes a Contracting Party to the Treaty." The notice states that the Treaty's disclosure requirement "will apply to all patent applicants who file an application in a Contracting Party, including those applicants who come from countries that have not ratified or acceded to the Treaty."
Treaty includes sanctions and remedies for noncompliance
Among the Treaty's 22 articles, the notice states it covers "sanctions and remedies for noncompliance" with Treaty obligations, including disclosure requirements for GRs and ATK.
Timing for Treaty entry and ratification threshold
The Treaty was adopted May 24, 2024 and is open for signature for one year (through May 23, 2025). The Treaty "will enter into force three months after it is ratified or acceded to by 15 eligible parties." As of December 5, 2024, the notice reports that 38 delegations had signed and that one country (Malawi) had ratified.
USPTO invites comments and will hold hearing
The USPTO requests written comments by March 18, 2025 and will hold a hybrid hearing on April 29, 2025 (9 a.m.-12 p.m. and 1-4 p.m. ET), which may continue April 30, 2025 if necessary. Parties wishing to present oral testimony must request to do so by April 22, 2025 and testimony slots will be up to five minutes each.
USPTO will conduct Tribal Consultation
The USPTO states it will conduct a Tribal Consultation to seek input from Tribes on the Treaty; additional details are noted as published elsewhere in the same Federal Register issue.
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