Intellectual Property from a Global Environmental Law Perspective: Key Lessons from the Implementation of Patent Disclosure Requirements for Genetic Resources and Traditional Knowledge

This commentary considers the intellectual property (IP) system from a global environmental law perspective by exploring the extent to which patent-related treaties, such as the World Trade Organization (WTO) Agreement on Trade-Related Aspects of Intellectual Property Rights and the World Intellectual Property Organization (WIPO) Patent Cooperation Treaty, can facilitate implementation of global environmental standards in the field of biodiversity law. The commentary aims to provide practical guidance to countries that wish to introduce patent disclosure-related mechanisms into their legal systems with a view to mainstreaming instances of global justice, fairness and equity, and raises awareness of the limitations arising from their extant IP obligations. Global environmental law standards have exercised an undeniable influence on the political discourse in international IP policy making in the field of patent disclosure. However, many pre-Nagoya Protocol patent disclosure requirements only apply to genetic resources whose provenance is the same country that has established the requirement. However, if a country designates its patent or IP office as a compliance checkpoint under the Nagoya Protocol, then the disclosure requirement should encompass at least the genetic resources originating from all countries that are contracting parties to this instrument. This could allow fulfilling a core monitoring obligation of the Nagoya Protocol, while enabling wider synergies and transparency within the IP system.

Section 1 contextualizes the discussion of technical areas of international law – i.e. IP, access to genetic resources and associated traditional knowledge, and the fair and equitable sharing of benefits arising from their use (ABS) – and explains the relevance of the ensuing legal analysis for global environmental law and global justice. Section 2 further illustrates the frictions between global environmental law and the international IP system in the field of biodiversity. Section 3 considers the relationship between global ABS obligations and additional patent disclosure requirements. Section 4 explains selected features of patent disclosure requirements in national law and illustrates the influence of global environmental law in the development of such features. Section 5 examines patent disclosure-related mechanisms by assessing their compatibility with relevant IP law treaties. The final section concludes by drawing key lessons learned and considers their implications for the emergence of global environmental law exigencies and standards of transparency, fairness, equity and global justice under the UN Convention on Biological Diversity (CBD) and its Nagoya Protocol on ABS.