Disclosure of the Origin of Patented Genetic Resources
Will a Plurilateral Agreement be a Possible Option?
Clinic: Universidad de Buenos Aires, Fall 2019
Beneficiary: The South Centre
(Full report can be read here)**
The aim of this Report is to address the concerns of developing countries regarding the misappropriation of genetic resources and traditional knowledge by analysing new ways to implement international law obligations upon local patent systems to impose, strengthen or broaden the disclosure obligations of patent applicants. Misappropriation is the unauthorized access and use of these resources for business purposes without a fair and equitable sharing of the profits with the indigenous communities that own or created them. Imposing patent applicants to disclose whether their inventions are related to these resources curbs the incentives to freely obtain a benefit from communities’ genetic source or traditional knowledge without proper compensation or authorization. 
Consequently, the Report addresses previous efforts to implement a requirement of disclosure within international law, proposes two new treaties to impose them upon States or facilitate the enforcement of decisions that protect genetic resources and traditional knowledge, and explores the options to negotiate and implement these treaties.
The Report starts by briefly going through the previous experiences of the international community in this regard. Specifically, the description of the negotiations and attempts made under the umbrella of the Convention on Biological Diversity, the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization, the Treaty on Plant Genetic Resources for Food and Agriculture, and the draft on genetic resources and traditional knowledge currently under discussion within the World Intellectual Property Organization. Notwithstanding they have implied important steps towards addressing the issue of misappropriation, these attempts did not clearly impose a concrete obligation on States to require patent applicants to disclose the origin of their inventions.
Consequently, the Report presents two possible options for the regulation of the matter: a treaty providing substantive obligations and a treaty providing the enforcement of decisions issued in other States concerning the protection of genetic resources and traditional knowledge through disclosure requirements. In each section, the Report details the proposal and elaborates on how it would interact with other sources of international law. Additionally, the Report addresses why a framework agreement does not seem as an interesting way forward to regulate these phenomena.
To implement the proposals, the Report presents a different path for the negotiation of the treaty, particularly such of a plurilateral agreement within the World Trade Organization in light of its previous multilateral failure.
The main conclusion is that the more detailed the obligation to disclose is, lesser States would be willing to become a party to the treaty. As to its negotiation, a treaty whose aim is to establish an obligation to disclose the source of the invention will be better developed in the World Trade Organization, as a plurilateral agreement that reinforces the provisions of the Agreement on Trade-Related Aspects of Intellectual Property Rights.
 WIPO, Key Questions on Patent Disclosure Requirements for Genetic Resources and Traditional Knowledge, 2017, page 11. Available at:
 International Treaty on Plant Genetic Resources for Food and Agriculture, (3 November 2001), S. Treaty Doc. No. 110–19, Available at: http://www.fao.org/AG/cgrfa/itpgr.htm
 TRIPS: Agreement on Trade-Related Aspects of Intellectual Property Rights, (15 April 1994), Marrakesh Agreement Establishing the World Trade Organization, Annex 1C, 1869 U.N.T.S. 299, 33 I.L.M. 1197.
The full report can be read here.