BACKGROUND: The historical background that led to the beginning of the negotiations that resulted in this Treaty lies in a large number of patents granted by Patent Offices of the major powers, in response to discoveries made by their engineers in geographical areas of underdeveloped countries, who, upon seeing the way in which generation after generation of peasants took advantage of certain medicinal properties of native plants, imported this knowledge and subjected it to analysis in their laboratories, subsequently obtaining inventions protected by patents.
An example of this is the case of “thaumatin”, a natural sweetener extracted from the berries of a bush native to the forests of West Africa called katemfe (Thaumatococcus daniellii), whose protein is about 2,000 times sweeter than sucrose. Thaumatin has been used as a low-calorie sweetener by various food and confectionery industries around the world. Since the plant does not bear fruit outside its natural environment, and due to the considerable cost of its extraction, many companies have tried to apply DNA recombination techniques to the gene responsible for the production of its protein (1)
Thus, Beatrice Foods Co., an American company dedicated to the production and marketing of food and beverages, obtained the US patent for the process of cloning this gene in yeast, and consequently, native katemfe plantations are no longer necessary for its production, and therefore, West Africa will not even be able to benefit from its exportation. The competitive nature of thaumatin biotechnology research highlighted the potential value of genetic information.
THE NEW TREATY: After 25 years of negotiations, Member States adopted a transformative agreement that marks a significant milestone in the protection of genetic resources and traditional knowledge associated with Indigenous Peoples and local communities.
On May 24, 2024, at the WIPO Diplomatic Conference in Geneva, Switzerland, and with the participation of more than 1,200 delegates and ministers from governments around the world, the first WIPO treaty (hereinafter “the Treaty”) that includes provisions relating to Indigenous Peoples and local communities with respect to the recognition of their role in the protection and conservation of biological biodiversity was signed.
Negotiations on this Treaty were initiated in 1999 at the initiative of Colombia, with the aim of recognizing the role of Indigenous Peoples and local communities in the conservation of genetic resources over generations, which are used in scientific research resulting in patent-protected inventions belonging to third party companies, as is the case of certain medicinal plants and animal breeds.
The Treaty introduces a new requirement for patent applications based on genetic resources or related traditional knowledge, by establishing the obligation of disclosure of the origins and sources of origin, in order to avoid the undue appropriation of knowledge and know-how by third parties.
In this sense, the Treaty establishes that, when a patent application claims an invention based on biological resources, each Contracting Party shall require the applicant to disclose the country of origin and source of such resources. At the same time, when the application is based on associated traditional knowledge, the applicant shall be required to declare the Indigenous Peoples or local communities that have provided such knowledge.
Among the main objectives of the Treaty are: to prevent biopiracy, to achieve transparency of information, and to prevent the improper granting of patents based on the use of ancestral knowledge belonging to Indigenous Peoples and local communities.
The Treaty will enter into force three months after 15 States Parties ratify the relevant accession and provides for a review of the scope of its provisions four years after its entry into force, to analyze the possible extension of the disclosure requirement to other areas of intellectual property and to incorporate those derived from genetic resources and new technologies (in particular, sequences).
CONCLUSION: The Treaty represents a historic step forward in the recognition of the essential role of Indigenous Peoples and local communities in the conservation of biodiversity and the protection of resources. With the implementation of this agreement, it promotes justice and equity in biotechnology, ensuring that the benefits derived from traditional knowledge and natural resources are shared fairly. It also reinforces the importance of the participation of Indigenous Peoples and local communities in decisions that affect their resources and knowledge.
(1) Source: Darrell A. Posey y Graham Dutfield (1996) “Más allá de la propiedad intelectual. Los derechos de las comunidades indígenas y locales a los recursos tradicionales” citing Sasson (1989), Walgate (1990, p. 161), Myers (1993), Shand (1993, p. 1), A. A. Elujoba, Pharmacy Department, Obafemi Awolowo University, Nigeria, 1994 (personal communication). Co-published by the International Development Research Centre (IDRC), WWF-World Wide Fund for Nature and Editorial NORDAN-Comunidad.
