Traditional Knowledge, Traditional Creativity and Cultural Expressions: What Role for IP

1
Traditional Knowledge, Traditional Creativity
and Cultural Expressions What Role for IP?

• World Bank
• Distance Learning Course on Indigenous Knowledge
• March 31, 2005

Antony Taubman, Traditional Knowledge Division,
WIPO
2
Overview

• What is the problem?
• protection vs. preservation
• Background to WIPOs activities
• Snapshot of the WIPO Intergovernmental Committee
  
• current issues and possible outcomes

3
Overview

• What is the problem?
• protection vs. preservation
• Background to WIPOs activities
• Snapshot of the WIPO Intergovernmental Committee
  
• current issues and possible outcomes

4
The Call for Protection the Deep Forest case
This is an illustrative example for educational
purposes only no views are expressed, and no
conclusions should be drawn, on any legal
question on the basis of this presentation
5
Baegu Music Rorogwela Lullaby
sung by Afunakwa The rorogwela lullabies are
often sung not by the mother but by the childs
elder sister. The words refer to such a
situation the elder sister asks the baby not to
cry because its parents are dead and there is no
one else there to hear it.
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The call for protection the deep forest case

• 1973 UNESCO recording Fateleka and Baegu Music
  from Malaita
• Baegu lullaby from Northern Malaita, Rorogwela
  sung by Afunakwa
• Some elements (substantial?) of (i) the melody
  of the lullaby and (ii) the recording
  (fixation) of the vocal performance used in
  Sweet Lullaby by Deep Forest
• Attributed to African cultures
• CD a huge commercial success, Sweet Lullaby
  widely used in commercials
• 1996, Norwegian saxophonist Jan Garbarek records
  an adaptation of "Rorogwela, credited as "a
  traditional African melody, arranged by Jan
  Garbarek"

8
The call for protection the deep forest case

• Immediate legal issues musical work,
  performance, moral rights, economic rights
• Broader issues preservation vs. protection
  enforcement of legal rights recognition of
  traditional works, communal ownership, customary
  law
• Policy choices what is needed here
• sui generis (stand alone) protection?
• adapted or extended use of existing intellectual
  property system?
• better, more equitable use of existing
  intellectual property system?

9
The call for protection the deep forest case

• Sui generis protection under existing treaties
• WIPO Performers and Phonograms Treaty protects
  performances of expressions of folklore
• Moral rights
• Economic rights even if recordings are not for
  commercial gain
• Berne Convention protects certain unpublished
  works of unknown authorship
• including traditional musical works
• fifty years after the work has been lawfully made
  available to the public.

10
Overview

• What is the problem?
• protection vs preservation
• Background to WIPOs activities
• Snapshot of the WIPO Intergovernmental Committee
  
• current issues and possible outcomes

11
Overlapping areas of concern

• Definitions are needed to focus work, but need
  not create firm boundaries
• Cultural heritage - expressions of folklore or
  traditional cultural expressions (TCEs)
• Traditional knowledge (TK) - technical knowhow
  - e.g. medical knowledge
• Genetic resources

12
Overlapping areas of activity

• Folklore - TCEs
• UNESCO (intangible cultural heritage)
• WIPO (folklore, Berne Convention, WPPT)
• WTO (folklore and TRIPS)
• ITC (capacity building on crafts)
• Traditional knowledge
• CBD (Article 8(j), 10(c), 17.2)
• FAO (Farmers rights)
• UNCTAD (TK in trade and development)
• WHO (Traditional medical knowledge)
• WTO (TRIPS)
• WIPO (TK and patent issues PCT, IPC)

13
Overlapping areas of activity

• Genetic resources
• CBD conservation, sustainable use, equitable
  benefit-sharing
• FAO International Treaty on Plant Genetic
  Resources for Food and Agriculture
• WTO (TRIPS)
• WIPO (IGC)
• Indigenous rights
• ILO Indigenous and Tribal Peoples Convention,
  1989 (No. 169)
• Office of the High Commissioner for Human Rights
  (OHCHR)Working Group on Indigenous Populations
  (WGIP) Draft Declaration on the Rights of
  Indigenous Peoples.

14
Background to WIPOs work

• International cooperation on folklore since 1970s
• Berne Convention protection of folklore
• Article 15.4 In the case of certain unpublished
  works of unknown authorship
• (a) In the case of unpublished works where the
  identity of the author is unknown, but where
  there is every ground to presume that he is a
  national of a country of the Union, it shall be a
  matter for legislation in that country to
  designate the competent authority which shall
  represent the author and shall be entitled to
  protect and enforce his rights in the countries
  of the Union.
• (b) Countries of the Union which make such
  designation under the terms of this provision
  shall notify the Director General by means of a
  written declaration giving full information
  concerning the authority thus designated. The
  Director General shall at once communicate this
  declaration to all other countries of the Union.

15
Background to WIPOs work

• International cooperation on folklore since 1970s
• Berne Convention protection of folklore
• UNESCO-WIPO work in early 1980s
• UNESCO-WIPO Model Provisions for National Laws on
  the Protection of Expressions of Folklore Against
  Illicit Exploitation Other Prejudicial Actions
• Expressions of folklore developed and maintained
  in country shall be protected by this law
  against illicit exploitation and other
  prejudicial actions as defined in this law.
• "expressions of folklore" productions consisting
  of characteristic elements of the traditional
  artistic heritage developed and maintained by a
  community of country or by individuals
  reflecting the traditional artistic expectations
  of such a community ...

16
Background to WIPOs work

• International cooperation on folklore since 1970s
• Berne Convention protection of folklore
• UNESCO-WIPO work in early 1980s
• UNESCO-WIPO Model Provisions
• 1985 treaty premature
• 1996 WIPO Performances Phonograms Treaty
• protection of expressions of folklore
• performers include those who perform
  expressions of folklore
• rights include moral rights, rights of fixation,
  rights over communication and dissemination,
  economic rights
• even if recording was not made for commercial gain

17
Background to WIPOs work

• International cooperation on folklore since 1970s
• Berne Convention protection of folklore
• UNESCO-WIPO work in early 1980s
• UNESCO-WIPO Model Provisions
• 1985 treaty premature
• 1996 WIPO Performances Phonograms Treaty
• protection of expressions of folklore
• 1997 Phuket plan of action
• 1998-99 Fact-finding missions on TK
• 2001- Intergovernmental Committee on GR, TK, F

18
Overview

• What is the problem?
• protection vs preservation
• Background to WIPOs activities
• Snapshot of the WIPO Intergovernmental Committee
  (IGC)
• current issues and possible outcomes

19
Traditional Values and IP at Odds?

• What does WIPO have to do with traditional
  knowledge and cultural expressions?
• Disquiet on the part of proponents and opponents
  of the received IP system concerns raised about
• imposing an IP straitjacket on traditional
  cultures, overriding collective values of
  indigenous and other traditional communities
• IP concerns mainstream technology
  commercialises commodifies knowledge culture
  facilitates misappropriation of TK and cultural
  expressions
• IP rights are atomistic, private, individual - at
  odds with values of traditional communities
• IP concerns creativity and innovation, not
  tradition

20
Where did the IGC come from, where is it going?

• From 1998-99, WIPO visited some 60 locations for
  dialogue with around 3,000 representatives of TK
  holder communities
• idea was to base the new program on direct
  learning of the needs expectations of TK
  holders themselves
• these insights still central to WIPOs work
• IGC established in 2001 - building on practical
  experience worldwide
• clarifies that this is an existing area of IP law
  and practice many laws and practical cases
  worldwide, within and beyond the conventional IP
  system
• but what is the international dimension?

21
Towards resolution back to basics

• The IP system criticized for misappropriating
  TK/TCEs, neglecting the interests of Indigenous
  local communities.
• But these very concerns often expressed in terms
  that echo core principles of the IP system
• promoting equity and balance,
• reconciling private and collective interests,
• recognizing distinctive origins and the
  legitimate source of innovation and creativity,
• suppressing free-riding and unjust enrichment,
• defending distinctive reputations from
  illegitimate exploitation,
• providing for rights of attribution and integrity
• This observation is the essence of an emerging
  consensus

22
What kind of challenge to the IP system?

• Indigenous and local communities continue to
  innovate and create within their traditions
• seek recognition for their past continuing
  contribution to humanitys cultural
  intellectual heritage
• and appropriate respect for customary laws
• IGC a process of reviewing the core principles of
  IP law, assessing how to apply those principles
  for equitable protection of TK and TCEs
• analysing validity, equity, effectiveness of IP
  system from the distinct vantage point of
  indigenous and local communities
• Responding to critical concerns about the
  relevance and legitimacy of IP system, the IGC
  has seen deep reflection on the nature of IP, its
  objectives, its assumptions, its limitations and
  its boundaries.

23
Some key substantive issues

• misappropriation - what is it to misappropriate
  TK/TCEs, what is the cause of action and the
  nature of the damage?
• retroactivity - is the existing public domain
  legitimate inviolable?
• localisation - how to recognize and defer to a
  communitys customary law?
• collectivity - what legal status or legal
  personality for traditional communities?
• ownership - what is the nature of custodianship?
  Who benefits?
• subject matter - what makes knowledge and
  cultural expressions traditional ?

24
Some key process issues

• coordination - already an active area of national
  and regional legislation - what is the
  international layer?
• interface with IP law - what is the sui generis
  element of protection of TK and TCEs?
• interface with other law - access regimes for
  genetic resources, cultural policy, etc. what
  is the (adapted, expanded or sui generis) IP
  element?

25
New IGC mandate for 2004-05

• continue work on questions included in previous
  mandate
• new work to focus on consideration of
  international dimension, without prejudice to
  work in other fora,
• no outcome is excluded, including possible
  development of an international instrument(s)
• the ICG urged to accelerate its work and to
  present a progress report
• International Bureau to continue to assist by
  providing necessary expertise and documentation.

26
Folklore/Traditional Cultural Expressions (TCEs)

• IGC agrees in March 2004 to focus and accelerate
  substantive work on TCEs, including preparing
• an overview of policy objectives and core
  principles for protection of TCEs (draft
  provisions)
• document WIPO/GRTKF/IC/7/3
• If Member States so choose, this could form the
  basis of a new international instrument to
  protect TCEs
• the draft provisions could provide the substance
  or content of an international instrument
• political decision remains as to what legal
  status and future process is needed to carry this
  forward

27
Traditional Knowledge (TK)

• IGC agrees in March 2004 to focus and accelerate
  substantive work on TK, including preparing
• an overview of policy objectives and core
  principles for protection of TK (draft
  provisions)
• document WIPO/GRTKF/IC/7/5
• If Member States so choose, this could form the
  basis of a new international instrument to
  protect TK
• the draft provisions could provide the substance
  or content of an international instrument
• political decision remains as to what legal
  status and future process is needed to carry this
  forward

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What principles for TCEs/folklore?

• Responsiveness to aspirations and expectations of
  relevant communities
• Balance and proportionality
• Respect for and cooperation with other
  international and regional instruments and
  processes
• Flexibility and comprehensiveness
• Recognition of the specific nature,
  characteristics and traditional forms of cultural
  expression
• Respect for customary use and transmission of
  TCEs/EoF
• Effectiveness and accessibility of protection

30
Specific substantive principles for TCEs/folklore

• Term of protection
• Formalities
• Sanctions, remedies and enforcement
• Application in time
• Relationship with intellectual property
  protection
• International and regional protection

• Scope of subject matter
• Criteria for protection
• Beneficiaries
• Management of rights
• Scope of protection
• Exceptions and limitations

31
What forms of protection?

• culturally significant/sacred TCEs/EOF
• prevent reproduction, adaptation, public
  communication and other such forms of
  exploitation of any distortion, mutilation or
  other modification of, or other derogatory action
  in relation to and the acquisition by third
  parties of IP rights
• secret TCEs/EoF
• prevent unauthorized disclosure and subsequent
  use of and acquisition by third parties of IP
  rights
• performances of TCEs/EoF
• protect moral and economic rights as per WPPT
• other TCEs/EoF
• identify source prevent offensive use, prevent
  misleading indications, and equitable
  remuneration

32
What forms of protection?

• culturally significant/sacred TCEs/EOF
• prevent reproduction, adaptation, public
  communication and other such forms of
  exploitation of any distortion, mutilation or
  other modification of, or other derogatory action
  in relation to and the acquisition by third
  parties of IP rights
• secret TCEs/EoF
• prevent unauthorized disclosure and subsequent
  use of and acquisition by third parties of IP
  rights
• performances of TCEs/EoF
• protect moral and economic rights as per WPPT
• other TCEs/EoF
• identify source prevent offensive use, prevent
  misleading indications, and equitable
  remuneration

33
What forms of protection?

• culturally significant/sacred TCEs/EOF
• prevent reproduction, adaptation, public
  communication and other such forms of
  exploitation of any distortion, mutilation or
  other modification of, or other derogatory action
  in relation to and the acquisition by third
  parties of IP rights
• secret TCEs/EoF
• prevent unauthorized disclosure and subsequent
  use of and acquisition by third parties of IP
  rights
• performances of TCEs/EoF
• protect moral and economic rights as per WPPT
• other TCEs/EoF
• identify source prevent offensive use, prevent
  misleading indications, and equitable
  remuneration

34
What forms of protection?

• culturally significant/sacred TCEs/EOF
• prevent reproduction, adaptation, public
  communication and other such forms of
  exploitation of any distortion, mutilation or
  other modification of, or other derogatory action
  in relation to and the acquisition by third
  parties of IP rights
• secret TCEs/EoF
• prevent unauthorized disclosure and subsequent
  use of and acquisition by third parties of IP
  rights
• performances of TCEs/EoF
• protect moral and economic rights as per WPPT
• other TCEs/EoF
• identify source prevent offensive use, prevent
  misleading indications, and equitable
  remuneration

35
What objectives for protection of TK?

• Recognise value
• Promote respect
• Meet the actual needs of holders of traditional
  knowledge
• Empower holders of TK
• Support traditional knowledge systems
• Contribute to safeguarding traditional knowledge
• Repress unfair and inequitable uses
• Concord with relevant international agreements
  and processes

• Promote innovation and creativity
• Promote intellectual and technological exchange
• Promote equitable benefit sharing
• Promote community development and legitimate
  trading activities
• Preclude the grant of invalid IP rights
• Enhance transparency and mutual confidence
• Complement protection of traditional cultural
  expressions

36
What guiding principles for TK protection?

• Responsiveness to the needs and expectations of
  TK holders
• Recognition of rights
• Effectiveness and accessibility
• Flexibility comprehensiveness
• Equity and benefit-sharing
• Consistency with existing legal systems
• Respect for and cooperation with other
  international and regional instruments and
  processes
• Respect for customary use and transmission of TK
• Recognition of the specific characteristics of TK

37
What substantive principles for TK protection?

• Protection against misappropriation-
  suppression of misappropriation- general nature
  of misappropriation- acts of misappropriation-
  unfair competition
• Recognition of the customary context
• Legal form of protection
• General scope of subject matter
• Eligibility for protection
• Beneficiaries of protection
• Equitable compensation and recognition of
  knowledge holders

• Prior informed consent
• Exceptions and limitations
• Duration of protection
• Application in time
• Administration and enforcement of protection
• International and Regional Protection

38
What form of protection?
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Next steps

• Comment period on draft provisions for TK and TCE
  protection
• Revised draft provisions to be circulated approx.
  end March
• Further informal consultations in April - May
• IGC meets on June 6 to 10 to consider
• substance of provisions
• how to take the substance forward?
• what recommendations to the General Assembly?

43
policy objectives core principles
options for recognizing TK/TCE protection in
foreign jurisdictions
An emerging framework
elements of folklore/ TCE protection at the
national level
measures on IP genetic resources
elements of TK protection at the national level
Link to detailed capacity building materials
44
Genetic Resources and Intellectual Property
45
Overview

• Linking equitable benefit-sharing from genetic
  resources and the patent system
• Issues and processes in WIPO fora
• Some working materials
• Cooperation with the Convention on Biological
  Diversity (CBD)
• Some substantive questions

46
Overview

• Linking equitable benefit-sharing from genetic
  resources and the patent system
• Issues and processes in WIPO fora
• Some working materials
• Cooperation with the Convention on Biological
  Diversity (CBD)
• Some substantive questions

47
Access equitable benefit-sharing what links
to the patent system?

• Access and benefit-sharing in line with
  objectives of CBD and FAO International Treaty
• e.g. CBD objectives (i) conservation of
  biological diversity (ii) sustainable use of its
  components (iii) fair and equitable sharing of
  the benefits arising out of the utilization of
  genetic resources
• Patent system - in particular treatment of
  inventions that arise out of the utilization of
  genetic resources (and associated TK)

48
Access equitable benefit-sharing what links
to the patent system?

• Two essential scenarios put forward
• Direct patenting of source material
• a patent (or application) directly claims as an
  invention genetic resources (or associated
  traditional knowledge) obtained from a separate
  source
• Patenting inventions derived from source material
• a patent (or application) claims an invention
  that is somehow derived from or somehow uses
  genetic resources or TK - this link expressed in
  several ways
• Has the GR/TK been legitimately accessed?
• Is the patent consistent with equitable
  benefit-sharing?

49
Access equitable benefit-sharing what links
to the patent system?

• Opens up some fundamental questions
• Legal what obligations arise (or should arise)
  from the circumstances of access and the nature
  of use of genetic resources (and associated TK)?
• How does (or should) this affect
• the entitlement to apply for and be granted a
  patent (should the applicant receive a patent?)
• the patentability of the invention as such (does
  the invention
• other interests and entitlements (e.g. equitable
  or ownership interests, expectation to benefit)
• other obligations (e.g. obligation to report on
  patenting activity, obligation to disclose)

50
Access equitable benefit-sharing what links
to the patent system?

• Disclosure requirements
• various existing mechanisms, national/regional
  legislative initiatives,and international
  proposals
• create or confirm a legal linkage betweenGR or
  TK used and the claimed invention
• beyond disclosure per se (provision of
  information), have variously been linked to
• patentability of invention as such
• entitlement to apply or be granted a patent
• capacity to enforce a patent

51
Access equitable benefit-sharing what links
to the patent system?

• Supplementing basic legal issues, some practical
  questions
• E.g. what kinds of practical arrangements would
• reduce the likelihood of illegitimate patents
  being granted that claim GR/TK directly, or
  non-inventive derivatives of GR/TK
• continuing work on various defensive protection
  and enhanced search and examination measures
• facilitate equitable sharing of benefits from
  legitimate patenting of derivative inventions
  (what kinds of agreements and partnerships
  promote monetary and non-monetary benefit sharing
  - Bonn Guidelines)
• information and capacity building work (database
  of benefit sharing agreements, practical guide to
  supplement general ABS capacity-building
  projects)
• UNEP-WIPO study on IP aspects of access and
  benefit-sharing

52
Overview

• Linking equitable benefit-sharing from genetic
  resources and the patent system
• Issues and processes in WIPO fora
• Some working materials
• Cooperation with the Convention on Biological
  Diversity (CBD)
• Some substantive questions

53
WIPO fora and GR/patent issues

• Intergovernmental Committee on IP and Genetic
  Resources, TK Folklore
• considers legal issues (technical study)
• oversees capacity-building initiatives
• Standing Committee on Patent Law
• proposed text for Article 2 of draft Substantive
  Patent Law Treaty
• reference to issue of disclosure at last meeting
• Working Group on PCT Reform
• Swiss proposal for amendment of PCT Regulations
  to allow for disclosure mechanisms

54
Overview

• Linking equitable benefit-sharing from genetic
  resources and the patent system
• Issues and processes in WIPO fora
• Some working materials
• Cooperation with the Convention on Biological
  Diversity (CBD)
• Some substantive questions

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Technical study on disclosure mechanisms

• Prepared initially under the supervision of the
  IGC, responding to invitation from Sixth CBD
  Conference of Parties
• based on questionnaire responses from WIPO Member
  States
• successive drafts considered by IGC
• transmitted to CBD COP VII by the WIPO General
  Assembly
• triggers request for follow-up work from CBD COP,
  and proposed further feedback from CBD to WIPO

57
Technical study

• ...to contribute to international discussion and
  analysis of this general issue, and to help
  clarify some of the legal and policy matters it
  raises...
• ...technical input to facilitate policy
  discussion and analysis in the CBD and in other
  fora, and it should not be considered a formal
  paper expressing a policy position on the part of
  WIPO, its Secretariat or its Member States...
• ...explored issues relevant to the interaction
  between the patent system and GR/TK used in an
  invention... not sought to resolve these issues
  but rather to illustrate and elucidate them.
  may wish to consider future work in this area
  including additional exchange of national
  experience, and the elaboration of case studies
  and the analysis of some of the specific
  disclosure scenarios described and discussed in
  the draft study

58
Technical study

• ...to contribute to international discussion and
  analysis of this general issue, and to help
  clarify some of the legal and policy matters it
  raises...
• ...technical input to facilitate policy
  discussion and analysis in the CBD and in other
  fora, and it should not be considered a formal
  paper expressing a policy position on the part of
  WIPO, its Secretariat or its Member States...
• ...explored issues relevant to the interaction
  between the patent system and GR/TK used in an
  invention... not sought to resolve these issues
  but rather to illustrate and elucidate them.
  may wish to consider future work in this area
  including additional exchange of national
  experience, and the elaboration of case studies
  and the analysis of some of the specific
  disclosure scenarios described and discussed in
  the draft study

59
Technical study

• ...to contribute to international discussion and
  analysis of this general issue, and to help
  clarify some of the legal and policy matters it
  raises...
• ...technical input to facilitate policy
  discussion and analysis in the CBD and in other
  fora, and it should not be considered a formal
  paper expressing a policy position on the part of
  WIPO, its Secretariat or its Member States...
• ...explored issues relevant to the interaction
  between the patent system and GR/TK used in an
  invention... not sought to resolve these issues
  but rather to illustrate and elucidate them.
  may wish to consider future work in this area
  including additional exchange of national
  experience, and the elaboration of case studies
  and the analysis of some of the specific
  disclosure scenarios described and discussed in
  the draft study

60

• Analyses options under five aspects (Section VI)
  
• relationship between the claimed invention and
  the GR/TK or what would be a sufficient link
  between the two to trigger a disclosure
  requirement
• legal principle forming basis of requirement
• nature of the obligation placed on the applicant
• consequences of failure to comply with the
  requirement
• how the requirement would be implemented,
  verified or monitored
• Sets out specific methods for disclosure (Section
  VIII)

61

• Possible disclosure scenarios (191-199)
• TK as relevant prior art
• TK holder as inventor
• Disclosure of origin of genetic
  resources(enablement and best mode)
• Disclosure of the actual genetic resources
• Evidence of entitlement to apply
• Registration of equitable/ownership interests
• Disclosure of information in compliance with
  other legal obligations (e.g. access regimes)
• Specific GR/TK disclosure mechanisms
• various specific mechanisms, various legal bases
  for requirements

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63
UNEP-WIPO study on ABS and IP

• Pre-launch version submitted to Ministerial
  Conference, CBD COP VII
• Joint UNEP-WIPO launch imminent
• (inspection copies available today)
• Professor AK Gupta (Honey Bee Network)
• explores three case studies of the role of
  patents in access and benefit sharing
• independent analysis of the practical and legal
  issues that arise, limitations of current
  approaches

64
Overview

• Linking equitable benefit-sharing from genetic
  resources and the patent system
• Issues and processes in WIPO fora
• Some working materials
• Cooperation with the Convention on Biological
  Diversity (CBD)
• Some substantive questions

65
CBD invitation to WIPO

• Convention on Biological Diversity (CBD)
  Conference of Parties (COP) VI
• Decision VII/19 - interrelation of access to
  genetic resources and disclosure requirements in
  IP rights applications

66

• Invitation to WIPO to...
• examine, and where appropriate address, taking
  into account the need to ensure that this work is
  supportive of and does not run counter to the
  objectives of the CBD, issues regarding the
  interrelation of access to genetic resources and
  disclosure requirements in IP rights
  applications, including, inter alia

67

• Invitation to WIPO to...
• examine, and where appropriate address, taking
  into account the need to ensure that this work is
  supportive of and does not run counter to the
  objectives of the CBD, issues regarding the
  interrelation of access to genetic resources and
  disclosure requirements in IP rights
  applications, including, inter alia
• Options for model provisions on proposed
  disclosure requirements
• Practical options for IP rights application
  procedures with regard to the triggers of
  disclosure requirements
• Options for incentive measures for applicants
• Identification of the implications for
  functioning of disclosure requirements in various
  WIPO-administered treaties
• IP-related issues raised by proposed
  international certificate of origin/source/legal
  provenance

68
Possible Reporting Procedure

• and regularly provide reports to the CBD on
  its work, in particular on actions or steps
  proposed to address the above issues, in order
  for the CBD to provide additional information to
  WIPO for its consideration in the spirit of
  mutual supportiveness

69
Possible future work proposed to IGC

• in the light of developments to consider
  possible future work for the Committee on this
  issue, including the proposals in para 12(ii) of
  WIPO/GRTKF/IC/5/10
• including the continued exchange of national
  experience and case studies, and the development
  of guidelines and recommendations concerning the
  interaction between access to genetic resources
  and patent disclosure.

70
Overview

• Linking equitable benefit-sharing from genetic
  resources and the patent system
• Issues and processes in WIPO fora
• Some working materials
• Cooperation with the Convention on Biological
  Diversity (CBD)
• Some substantive questions

71
Some substantive questions

• Legal and policy issues concerning
• eligibility of inventions per se for protection
• eligibility of applicants to gain patents
• ownership, inventorship and equitable interests
• capacity to exploit and benefit from patents
• interplay between obligations incurred in one
  jurisdiction arising from access to genetic
  resources, and the operation of the patent system
  in another jurisdiction
• Incentives to use patent system to promote ABS
• Sanctions for failure to comply with ABS
  regulations

72
The various avenues proposed

• CBD invitation
• model provisions
• practical options for triggers of disclosure
  requirements
• options for incentive measures for applicants
• implications for various WIPO-administered
  treaties
• IP-related issues from proposed international
  certificate
• PCT system Swiss proposal to enable disclosure
  requirements
• Standing Committee on Patent Law reference to
  genetic resources in draft, disclosure issue
  raised
• Intergovernmental Committee proposed guidelines
  and recommendations, policy and legal development