Indigenous people’s traditional knowledge has routinely been misappropriated through the use of conventional intellectual property systems. The WIPO Genetic Resources and Associated Traditional Knowledge Treaty adopted in May 2024 after 20 years of negotiations became the first-ever international instrument to address this. However, the legal apparatus it uses to secure indigenous rights is grounded in the patent system and offers insufficient sanctions to deter misappropriation effectively.

Genetic resources are a form of biodiversity that comprise valuable plant, animal, or microbial material containing functional units of heredity. They are often utilised by indigenous communities applying know-how, skills or practices embedded in their traditional knowledge systems which may carry cultural, religious or spiritual value. The Convention on Biological Diversity (CBD) 1993 and the Nagoya Protocol 2010 have emphasized the urgency to conserve the environment by regulating access to genetic resources based on principles of prior informed consent and mutually agreed terms with indigenous communities. This extends to prevention of misappropriation through patenting, wherein, a patentee secures the exclusive right to commercially exploit any genetic resources or traditional knowledge through inclusion in its invention, excluding even the community itself. For instance, hard battles have been fought to thwart attempts by corporations and researchers to patent the medicinal properties of turmeric and neem plants used in India and the cosmetic benefits of the Vitamin C-rich Australian Kakadu plum used by indigenous communities. To prevent this, the WIPO Treaty imposes disclosure obligations on patent applicants intended to perform a watchdog function against potential misappropriation. However, the obligations imposed are weak.

First, the only information that applicants are required to disclose are the ‘country of origin’ of any genetic resources used, and where traditional knowledge is involved, the name of the indigenous community. This requirement is further diluted by the option available to applicants to declare such information as not known, leaving scope for circumvention of the rule through either outright omission or, as explained by Prof Peter Yu, creative drafting and interpretation.

Second, the information sought is arguably so unspecific that it may prove challenging to trace it back to the actual exchange between the applicant and the community, making it difficult to evaluate whether it took place through unfair terms. As traditional knowledge is often used and passed down orally and is far removed from formal systems of documenting knowledge like scientific journals, experimentation data, etc, it is difficult to investigate such interactions without specific details.

Third, despite having originated from CBD and Nagoya Protocol’s vision, the treaty does not require any form of evidence of consensual acquisition, or of any compensation paid to the communities. While the earliest draft of the treaty proposed by the Colombian delegation sought an entire copy of the agreement between the applicant and the community contributing the knowledge, the WIPO treaty entirely omits this.

Fourth, the WIPO Treaty further bars countries from invalidating patents as a sanction for non-disclosure except when fraudulent intentions can be proven, thereby removing any actual threat against misappropriation. Fraudulent intent is undefined, and unlikely to be easily proven, as the treaty disallows countries from requiring patent offices to undertake diligence exercises to verify disclosures. Lack of scientific, financial and legal resources available to indigenous communities may also make it challenging to pursue claims. Countries like India and New Zealand which already allow for patent invalidation in such cases remain outside the scope of the treaty.

The present form of the treaty denies indigenous people fair rewards for their innovative efforts, in favour of preserving status-quo in the billion-dollar profit-making patent system. This compromises their rights over their intellectual property, acknowledged in the UN Declaration on the Rights of Indigenous Peoples.

While the non-invalidation clause seriously limits the options available, signatories may choose to adopt disclosure obligations beyond the minimum floor set by the treaty. They may ask for details of compliance with Nagoya Protocol’s access and benefit sharing rules; hire external experts at the patent office to carry out disclosure diligence; and educate and sensitize indigenous communities to protect their traditional knowledge and register intellectual property rights over them if suitable. However, the treaty’s endorsement of lower thresholds, alongside the pressure from industrial lobbies makes this challenging.