The United States Patent and Trademark Office (USPTO), operating under the Department of Commerce, has issued a notice soliciting public comments on ongoing negotiations at the World Intellectual Property Organization (WIPO) Intergovernmental Committee (IGC). WIPO, a specialized United Nations agency established in 1967, is dedicated to the global promotion and protection of intellectual property (IP) rights. Since its inception in 2000, the WIPO IGC has been a specialized forum for WIPO member states to address issues related to IP, genetic resources (GRs), traditional knowledge (TK), and traditional cultural expressions (TCEs).

Negotiations for a treaty on GRs/TK/TCEs have been ongoing since 2009, and WIPO has stated its objective of finalizing the treaty during the diplomatic conference scheduled for 2024.  In anticipation, the USPTO has issued a call for public and stakeholder comments. The primary goal is to ensure that the evolving treaty and its provisions align with U.S. interests in IP rights.  Given the potential implications for patent application processes, the USPTO is actively engaging in shaping the outcomes of these negotiations.

A key focus within the proposed treaty revolves around mandatory disclosures of GR information in patent applications. While the treaty definition of Genetic Resources is pending, the Convention on Biological Diversity defines GRs as “genetic material of actual or potential value,” derived from any material of plant, animal, microbial, or other origin containing functional units of heredity.  Additionally, attention is directed to protecting the associated TK within genetic resource patents, encompassing indigenous and other traditional insights into the use of natural resources, ecological practices, medicinal properties of plants, agricultural techniques, folklore, and other information unique to specific communities.  Proposed disclosure requirements cover details such as the GR’s country of origin, source, chain of custody, and the legal status of GRs and associated TKs in patent applications.

The USPTO has invited comments and recommendations on the current working text for the treaty, with a particular emphasis on personal experiences, the necessity and effectiveness of patent disclosure requirements, and the utility of IP rights, sui generis exclusive rights, or some alternative method for protecting TK.

In particular, the USPTO seeks insights into experiences with GR patent disclosure requirements across various jurisdictions, addressing compliance challenges, the efficacy of disclosures, and their impact on public information access and business operations. Additionally, they seek opinions regarding the use of sui generis exclusive rights (e.g., non-patent plant protection rights) and other means of protecting TK, or alternatives including soft law such as best practice guidelines, codes of conduct and toolkits.

For specific questions of interest from the USPTO, members of the public can review the Federal Register’s notice.