By Andres Izquierdo, Yara Misto, & Haddija Jawara

The latest session of the WIPO Patent Cooperation Treaty (PCT) Working Group was marked by intense debate over agenda item 16, which addressed the implications of the recently adopted WIPO Treaty on Intellectual Property, Genetic Resources, and Associated Traditional Knowledge (GRATK Treaty). Brazil formally appealed the Chair’s ruling on the matter, ultimately resulting in the indefinite suspension of the session due to a lack of quorum for a vote.

During the 18th Session of the PCT Working Group, member states discussed document PCT/WG/18/16, which examines the potential integration of disclosure requirements for genetic resources (GR) and associated traditional knowledge (ATK) into the PCT framework. The discussions on PCT/WG/18/16 exposed a divide among WIPO members. Brazil, Colombia, and Egypt pushed for amendments to the PCT, stressing the importance of aligning its framework with the newly adopted GRATK Treaty. In contrast, Canada, France, and Norway maintained that such discussions were premature, arguing that any modifications should be postponed until the Treaty officially enters into force. With no consensus reached, the issue was deferred for future discussions.

Brazil’s Procedural Appeal and the Deadlock

Brazil objected to the closure of the agenda item, emphasizing its importance to multiple member states and interest groups. Invoking Rule 14 of WIPO’s procedural guidelines, Brazil asserted its right to appeal the Chair’s ruling, which—under WIPO rules—must be put to an immediate vote. The Chair’s decision would stand unless overturned by a majority of delegations.

However, procedural complications arose when it became clear that the session lacked the necessary quorum to conduct a vote on Brazil’s appeal. Without the required quorum, the appeal remained unresolved. Acknowledging the deadlock, the Chair announced the indefinite suspension of the meeting, with the issue to be revisited in a future session.

Statements from Member States & Brazil’s Appeal

Below is the transcript of statements from member states and the full text of Brazil’s appeal:

Colombia (GRULAC)

“Madam Chair, Delegation of Colombia has the honor of presenting this statement on behalf of the majority of the country’s members of GRULAC.
We would like to express our gratitude to the WIPO Secretariat, the Director General, for the initiative of having this agenda item and the preparation of the document PCT/WG/18/16.
We appreciate their efforts to look into the challenges of the implementation of this Treaty on Genetic Resources and Related Traditional Knowledge within the PCT with regard to patents.
The option in having the GRTK in 2024, it was a very great achievement for the majority of the GRULAC countries in order to guarantee that Intellectual Property Systems in our region reflect in a balanced way the interests of all stakeholders including states, indigenous peoples and local communities.
In this context, we believe that it would be appropriate for the PCT Working Group to take the opportunity to see how the procedures of the PCT can be aligned with the established provisions of Article 7 of the GRTK Treaty.
Obviously, we need to ensure that we facilitate harmonization and guarantee the applicability in effective terms.
The Secretariat’s initiative is particularly relevant given that both the process leads to the amendment of any PCT process or provision can take a long time.
It is, therefore, useful to have the technical discussions and an open debate so that we can have key information provided by Member States so that they are able to ratify the Treaty and also know what requirements may come up in terms of amendments to the PCT’s own regulations.
So we would like to thank the IB and suggest that we do indeed come back at the next PCT meeting with a proposed amendment which would enable us to foresee challenges that may come up.
We, therefore, call upon Member States to support the proposal made in 18/16 so that those modifications amendments that will facilitate the implementation, particularly with regard to diverging sources within the PCT system.”

Namibia (African Group)

“I thank you, Chair, for the floor.
I’m taking the floor on behalf of the African Group.
We join other Delegations in congratulating you on your appointment as the Chair and we are looking forward to a productive meeting.
And on the onset African Group wishes to commend WIPO for their efforts and work done this far in ensuring implementation of international instruments for protection of patents.
Patents are powerful tools in fostering innovation and providing economic value to businesses and investors.
Patent protection helps to secure commercial benefits of new inventions and ultimately ensuring sustainable innovations.
The WIPO Treaty on Intellectual Property, Genetic Resources and Associated Traditional Knowledge adopted in May 2024 marked a significant milestone in advancing legal instrument for protection or emerging issues of Intellectual Property law.
The Treaty addresses the relationship between Intellectual Property and Genetic Resources as well as Traditional Knowledge as subject matter that has been at the center of multilateral discussion over the years.
The Treaty emphasizes the need for a framework that respects the rights of Indigenous People and local communities over their Genetic Resources and Traditional Knowledge while promoting fair and equitable access and benefit-sharing conventions resulting from the use of those resources.
Therefore, it is crucial for the Working Group to consider amendment to the PCT regulations to include the disclosure requirements prior informed consent and benefit-sharing mechanism in the PCT system.
Those steps are vital to ensure that the use of Genetic Resources and Traditional Knowledge in patent applications acknowledges the rights of Indigenous People and local communities as well as the broader global objectives of sustainable development.
To move forward, the Working Group must assess how those amendments can be integrated into the PCT framework to fulfill the objectives of the Treaty.”

Japan

“Thank you, Madam Chair.
Japan would like to express our position on this agenda item.
At this stage, the new GOA TK Treaty has not come into effect nor is there any clear prospect of when it will.
Additionally, it remains uncertain how each potential contracting party will implement the Treaty in the national laws or rules.
Therefore, Japan believes under these circumstances it is premature to consider amending the regulations.
We are not supportive of the consideration of such amendments or the preparation of amendment proposals by the Secretariat at this moment.
In the first place, it should be the contracting parties of the new GOA TK Treaty who conduct a review based on their respective implementations after the new Treaty comes into effect.
If necessary, the contracting parties of the GOA TK Treaty should then request the PCT Union to consider the need for amendments based on the footnote.”

United Kingdom

“The United Kingdom notes that the Treaty has not yet entered into force and there are not yet, therefore, any contracting parties to the Treaty to discuss this issue.
The footnote states that contracting parties will make a request to the assembly of the PCT Union, not direct to the Working Group.
As a result, we consider it premature for the Secretariat to bring this issue to the attention of the Working Group at this time.”

Indonesia

“Madam Chair, Indonesia appreciates the opportunity to address this important matter as a signatory of the GRTK Treaty.
Indonesia believes that the regulations under the PCT should explore possibilities to be aligned with provisions under the new GRTK Treaty.
In particular, we refer to Article 7 of the GRTK Treaty on the relationship with other international agreements which includes an agreed statement calling upon the assembly of the PCT to consider whether amendments to the PCT regulations and/or administrative instructions are needed.
In this regard, Madam Chair, Indonesia would support discussions within this Working Group to explore possible amendments that would facilitate such changes and Indonesia would look forward to engaging constructively in further deliberations on this matter.”

Egypt

“We would like to thank the International Bureau for preparing this document.
The Egyptian IP Authority recognizes the contradiction between Note 4 of Article 7 of the Treaty on GRTK and Article 27.1 of the PCT as well as Rule 5.1EII of the PCT regulation.
Indeed, Article 27.1 PCT requires that upon entry into the national phase PCT contracting states shall not require additional information different from or additional to those that are provided in the PCT Treaty and its regulations.
Meanwhile, Rule 5.1EII of the PCT regulations sets the formal requirements of disclosure in the patent application to just include the description disclosing the invention as claimed in such terms that the technical problem and its solution can be understood and state the advantageous effects if any of the invention with reference to the background art.
For PCT contracting states who are also contracting parties to the Treaty on IP, GR, and associated TK or other countries where the national laws and/or regulation has special requirements for disclosure in relation to GR and TK would face a challenge in requiring applicants in the national phase to comply with the disclosure requirements in relation to GR and TK.
Therefore, EGPO identifies the need to at least amend Rule 5.1EII of the PCT regulation or to add a subparagraph to Rule 5.1A to consider the need for applicants to comply with disclosure requirements related to GR and/or associated to TK-based inventions.
It would be preferable to make this opportunity available upon filing the international applications and this would make it possible to make the disclosed information on GR and TK publicly available upon publication of the international application under the PCT international phase.
This can serve two purposes, making information available as a part of the patent information for the public in general and specifically for researchers and patent examiners in patent offices around the world.
Second, supporting national authorities responsible for regulating access to GR and TK associated with GR and sharing benefits arising from their utilization in harmonization with the Convention on Biological Diversity and Nagoya Protocol on access to genetic resources and the fair and equitable sharing of benefits arising from their utilization to the CBD.”

Norway

“Norway has since 2004 had disclosure requirements for genetic resources and traditional knowledge.
However, we are of the opinion that it is premature to consider the proposal laid out in document PCT/WG/18/16.
The WIPO Treaty on Intellectual Property, Genetic Resources and Associated Traditional Knowledge has not yet entered into force and only one Member State has ratified the treaty.
The footnote in the treaty referenced in the document requests contracting parties to request the PCT Union Assembly to consider amendments.
We believe that the proposal under agenda item 16 is outside of correct procedure.”

Iran

“My Delegation believes that one of the most notable achievements of WIPO and its Member States in 2024 was the adoption of the International Treaty on Intellectual Property, Genetic Resources and Associated Traditional Knowledge.
This historic milestone underscores the global commitment to the protection and preservation of Genetic Resources and Traditional Knowledge.
In light of this significant development and given the existence of numerous countries with national laws and regulations requiring mandatory disclosure of the origin of Genetic Resources in patent applications as well as the increasing trend in the number of such countries, we taking note of the content and merits of the document PCT/WG/18/16 and believe that it is a step forward to providing an opportunity for applicants to file international applications in a manner that complies with the formal obligations of disclosure during the national phase.”

Peru

“We would like to echo what Colombia has said on behalf of GRULAC and reiterate our support for the Secretariat to carry out the work to present possible modifications necessary to the PCT regulations to include the duties that come from the Associated Treaties.
We feel that this is key to guarantee in the future the effective implementation of our commitments and to facilitate our work.
The work of the Secretariat will allow us to ensure that these provisions will be technically and legally possible.
We also feel unlike what some members have said, that beginning this work does not require the Treaty to be to enter it into force.
We shouldn’t wait for that time to begin this work which is really a preparatory work.”

Canada

“Canada thanks the IB for preparing this document.
Canada believes it is premature for the PCT union to take up this issue at this time for several reasons.
First and most importantly, there is currently no assembly of contracting parties to the new WIPO Treaty on Intellectual Property, Genetic Resources and Associated Traditional Knowledge as the Treaty is not yet in force.
Article 7 of the Treaty is clear that the contracting parties to that Treaty must make any request in this regard and there are currently simply no contracting parties at this time.
Second, before engaging the assistance of the International Bureau, it is necessary for the PCT union to first assess if amendments to the PCT itself or the administrative instructions would be required.
This is a fundamental step.
Lastly, to inform our future deliberations, it will be prudent to observe how contracting parties implement the new WIPO/GRTK Treaty in their respective national systems before determining whether a facilitated process under the PCT is appropriate or even feasible.
Without this practical experience, any discussion on how the PCT could accommodate such a process would be premature.
For these reasons, we look forward to addressing this matter at an appropriate point in time after the entry into force of the new WIPO/GRTK Treaty.”

Brazil

“Aligning itself with the statement made by Colombia on behalf of GRULAC and the intervention made by Indonesia on behalf of the like-minded group of mega-diverse countries, the Delegation of Brazil welcomes the opportunity to engage in discussions on document PCT/WG/18/16 which introduces the important issue of harmonizing the Patent Cooperation Treaty PCT framework with the recently adopted WIPO Treaty on Intellectual Property, Genetic Resources and Associated Traditional Knowledge.
The adoption of this treaty made the adoption of this treaty by consensus among all WIPO Member States in May 2024 represents a landmark achievement in ensuring that Intellectual Property systems recognize and respect sovereign rights of biodiversity genetic resources and the rights of holders of Genetic Resources and Associated Traditional Knowledge.
Brazil firmly believes that incorporating disclosure requirements related to GR and ATK into the PCT system is not a premature but a necessary and critical step toward harmonizing both instruments.
This alignment will enhance transparency, legal certainty, and fairness preventing the granting of patents that do not fully comply with the commitments assumed by contracting parties to both treaties.
By integrating these requirements, not only contracting parties but above all, all of the international patent system will be better equipped to prevent the erroneous granting of patents, fostering trust among all stakeholders.
In this regard, Brazil in line with the consensus achieved in May 2024 recommends that the PCT Working Group mandate the WIPO Secretariat to present concrete proposals for amendments to the PCT during the 19th session of the Working Group.
This proposal should outline the necessary modifications to incorporate the provisions on the new treaty effectively, ensuring that the PCT system remains consistent with WIPO’s evolving legal framework and the IP international community’s broader principles and objectives.
We look forward to constructive discussions on this matter and remain committed to working collaboratively with all Delegations to ensure that the PCT system continues to evolve according to the agreed statement established by the WIPO GRTK Treaty.”

Republic of Korea

“KIPO determines that it is premature to discuss PCT rules revision at this stage where the legal effect or the requirement of the contracting states under the new WIPO Treaty on Genetic Resources has not yet satisfied.
If the contracting states were added in the future, KIPO hopes to make a serious approach to this issue by specifically reviewing the ripple effect to relevant industrial fields and possible burdens on the applicants through sharing practical cases and status quo.”

Togo

“Given that this is the first time that the Delegation of Togo has taken the floor, I would like to take this opportunity to congratulate you, Madam Chair, on your election and for the good work you have done up to now.
And I would also have to thank the Director General of WIPO at this time, the Secretariat, and the staff for their choice of a very open policy to all Member States so that no nation is left behind.
The Delegation of Togo aligns itself with the statement made by Namibia on behalf of the Africa Group.
Intellectual property is a driver of development and no one needs to be reminded of that.
I remind you that Togo, my country, was a member of the Patent Cooperation Treaty since January 1978.
This means that there is clear political will since then.
And as you know, intellectual property and the Patent Cooperation Treaty on Intellectual Property, Genetic Resources and Associated Traditional Knowledge is key to allow our states to maximize the benefit that they draw from what exists in their country.
Togo stresses the need to harmonize these instruments.
Madam Chair, ladies and gentlemen, rest assured that the Government of Togo will work with you for the success of this conference and the Treaty.”

Australia

“Australia is not opposed to item 16 being on the agenda.
Given there are 39 signatories to the GRTK Treaty, it is likely the Treaty will enter into force at some point in the future.
We see no harm in starting conversations on exploratory work at this stage and no decision is being made on any potential amendments.
It is important for the PCT Working Group to determine whether consequential changes are needed to PCT rules at all.
Ultimately, we can be flexible.
Even if it is not on the agenda for this session, we would like to see the GRTK Treaty on the PCT Working Group agenda at the next session.
We should consider how to enable Member States to better understand how the national and international systems operate together when a disclosure requirement is implemented in line with the GRTK Treaty.
Putting it off is likely to make the eventual implementation rushed in future.
Australia welcomes the new GRTK Treaty and the work of all Member States to achieve this result.
The Treaty creates a mechanism for recognition for Indigenous Peoples’ traditional knowledge within patent systems.
We would support the International Bureau providing technical advice for further consideration by Member States to ensure the PCT and GRTK Treaties both operate effectively and efficiently.”

Poland

“First of all, I would like to express our thanks to the International Bureau and Madam Chair for preparing this session and for organizing two information sessions that took place on the 7th and 11th of February.
We wish to join other Delegations in expressing our view under this Agenda 80.
In our opinion, the wording of the agreed statement is clear and unambiguous.
It is for the Contracting Parties to request the Assembly of the International Patent Cooperation Union to consider the need for amendments to their regulations under the PCT and/or the administrative instructions.
As there is only one Contracting Party to the GRTK Treaty to date, the Treaty has not entered into force yet.
While we understand that some regional groups and Delegations are interested in the discussion on the item 16 of the Agenda, we are of the view that it is premature at this stage.
We think that it is not the right moment to make any request to the International Bureau in this regard and for the Secretariat to propose it.
We understand that the deliberation on the potential amendments to the PCT regulations and working them through may take some time.
However, it is important for us that the procedure as provided in the Treaty is respected.
For this reason, we would not be in favor of such requests.
Once the GRTK Treaty enters into force in accordance with Article 17 and its Contracting Parties would so request, we would be ready to fully take part in discussions concerning necessary amendments to the PCT regulations.”

European Patent Office (EPO)

“The EPO has begun to carefully analyze and assess the implications of the WIPO Treaty on Intellectual Property, Genetic Resources and Associated Traditional Knowledge together with European Patent Organization’s Member States.
The EPO takes note of the proposal to start the discussions and of the International Bureau’s offer to prepare a first draft of any necessary amendments to the PCT legal framework.”

Mexico

“Mexico, of course, aligns itself with the statement made by Colombia but we would like to share a few additional arguments with you to defend the need to begin working on this topic early.
We have three arguments.
Firstly, beginning work now will mean that when the Treaty enters into force, the modifications for the PCT will be underway for those countries to be able to meet the requirements on disclosure.
This means that the PCT system will be able to quickly adapt.
Second, creating proposals and the analysis that the IB can bring to the table would also give us time to meet technical and legal challenges before the entry into force of the Treaty.
Third, although the Treaty is not currently in force, all member countries of the PCT will benefit from greater transparency and protection of Genetic Resources and associated Traditional Knowledge.
The changes proposed to the document can improve the global patent system, making it more credible and transparent and ensuring that local communities and Indigenous Peoples are more respected, making it therefore more global and complete.
I feel it’s important to highlight that the changes proposed to the regulation will only apply to countries that have provisions in their national legislation on disclosure and Genetic Resources and associated Traditional Knowledge.
Mexico, therefore, fully supports beginning work on modifications and the rollout and development of the necessary changes.”

France

“Madam Chair, our Delegation is taking the floor for the first time in this Working Group and we would like to thank you for leading our discussions and also the Secretariat for preparing this session.
It seems premature to us to examine the modifications to the PCT as the Treaty is not yet into force, only one country has ratified it.
Once it is in force, it will be up to the contracting parties to ask the union, the PCT union, to review the need to change the regulations and the administrative instructions as noted in the footnote mentioned already.”

Brazil Appeal

Chair:

“I will reopen the agenda item 16 and what I would like to propose to appear in the summary of the Chair is the following sentence: that there was no agreement on this agenda item, full stop.”

“With this, I would like to close this agenda item.”

Brazil:

“I’m a little bit—this Delegation is a little bit confused on the follow-up of agenda item 16 where it passed to another agenda item. I do seek your orientation or guidance concerning how [we] can proceed with agenda item 16 because Brazil is not in favor of your ruling of agenda item 16.”

“So let me just get it here. Any Delegation may appeal against the ruling of the Chair. That’s rule 14. The appeal shall be immediately put to vote, and the Chair’s ruling shall stand unless overruled by the majority of Delegations.”

“I don’t think we have a quorum to take a vote. So with that, we are in an unfortunate situation in which we all failed in reaching consensus in one agenda item that was of significant importance to a number of groups and Member States.”

“With that, I finish my point of order and seek for orientation [on] how [we] can proceed from that. Thank you.”

Chair (responding to Brazil):

“My intention was to close this agenda item and this session, and I would like to consider your intervention and come back to you. Brazil, could you approach?”

“Thank you, Brazil, very much for your explanation. So we have [a] situation that Brazil challenged for points of order and challenged the decision by the Chair.”

“So we should put [it] on the vote—this kind of challenge—but obviously, we do not have quorum for the voting.”

“So I’m afraid I have to suspend this meeting indefinitely. So the meeting will resume at a future date at this point. Thank you very much for staying.”