Sean Flynn and Andres Izquierdo

May 14, 2024

The World Intellectual Property Organization launched a diplomatic conference to finalize a new international legal instrument on “Intellectual Property, Genetic Resources and Traditional Knowledge Associated with Genetic Resources.” The draft instrument would oblige members to require patent holders to disclose uses of genetic resources and associated traditional knowledge. https://www.wipo.int/meetings/en/details.jsp?meeting_id=81190 The goals include to prevent patents from being granted erroneously for inventions that are not novel or inventive. The demandeurs also desire to prevent misappropriation by failing to comply with access and benefit sharing regulations, such as those adopted to comply with Article 15 of the Convention on Biological Diversity.

The first two days of the meeting were largely filled with procedure and general opening statements. On the afternoon of the second day, the meeting entered an “informal” session where the content of the discussions cannot be reported.

The drama arrived in the first session of the first day as a slate of officials for the meeting was proposed. Central and Eastern European countries (CEBs) opposed the nomination of Russia to the Drafting Committee. Ultimately, this and other objections (to Belarus by CEBs and to Iran by Israel) were resolved by objecting countries “disassociating” themselves from the decision rather than withholding consensus and forcing a vote. Accordingly, the morning moved along relatively quickly with the adoption of the rules of procedure https://www.wipo.int/meetings/en/doc_details.jsp?doc_id=625813 and the officials of the meeting. https://www.wipo.int/meetings/en/doc_details.jsp?doc_id=630893 . In the coming days, the program calls for each day to stretch to 10pm.

The meeting has a complex committee structure. 

The conference will proceed with two Main Committees that will have different parts of the treaty as their focus, but will not be scheduled to meet concurrently. Each is essentially a plenary meeting. Main Committee I is responsible for the substantive provisions of the instrument in Articles 1-10. Main Committee II shall be responsible for the administrative provisions and final clauses of the International Legal Instrument, running from articles 11 to the end. Each Committee may form smaller “working groups,” with membership and tasks decided by the Main Committee. It is not clear how this will occur, and forming a group of less than the whole may draw opposition from some countries requiring time and negotiation.

The most important body appears to be the “Steering Committee,” which must “review the progress of the Conference” and “make decisions for furthering such progress, including, in particular, decisions on the coordination of the meetings of the Plenary, the Committees and the working groups,” and “shall propose the text of any final act of the Conference.” Rule 14.3-4. The Steering Committee includes the President and Vice-Presidents of the Conference, the President of the Credentials Committee, the Presidents of the Main Committees and the President of the Drafting Committee. The known members thus far include: 

Président/President

Guilherme de Aguiar Patriota (M./Mr.) (Brazil)

Vice-présidents/Vice-Presidents [seven]

Christian Schernitzky (M./Mr.) (Germany)

Li Weiwei (Mme/Ms.) (China)

Seyed Ali Mousavi (M./Mr.) (Iran)  

Mercy Kyomugasho Kainobwisho (Mme/Ms.) (Uganda)

Anna Barbarzak (Mme/Ms.) (Poland)

Christoph Spennemann (M./Mr.) (Switzerland)

Alvaro Moerzinger (M./Mr.) (Uruguay)

President, Committee I: 

Jodie McAlister (Mme/Ms.) (Australia)

President Committee II:

Vivienne Katjiuongua (Mme/Ms.) (Namibia)

The Presidents of the Credentials and Drafting Committees are not yet known. 

The voting rules for the Conference state that “decisions of all bodies shall be made as far as possible by consensus,” (34.1), but votes may be required. Decisions of all bodies shall require a simple majority of the Member Delegations present and voting, except that the following decisions require a majority of two-thirds of the Member Delegations present and voting:

(i) adoption by the Conference, meeting in Plenary, of these Rules, and, once adopted, any amendment to them,

(ii) decision by any of the bodies to reconsider, under Rule 32, a matter decided,

(iii) adoption by the Conference, meeting in Plenary, of the International Legal Instrument.

Observers from NGOs and intergovernmental organizations are permitted to “attend and make oral statements in the Plenary meetings of the Conference and the meetings of the Main Committees.” (Rule 46). Informals will be held in the same plenary hall with observers present, but not able to speak or report on the contents of the discussions.

Issues in each Committee will be discussed in “clusters” of issues that face the most controversy. The President of Main Committee I proposed to focus on the following three clusters of issues in the following order:

a. Disclosure Requirement (including Articles 3, 4, 5 and 6);

b. Information Systems (including Article 7); and

c. Nature, Scope and Objectives of the Instrument (including the Preamble and Articles 1, 8, 9 and 10). 

When the meeting returns to public discussion in plenary, we will publish additional analysis of the state of the negotiation.