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[et_pb_section admin_label=”section”] [et_pb_row admin_label=”row”] [et_pb_column type=”4_4″][et_pb_text admin_label=”Text”] By: Chidi Oguamanam Chidi Oguamanam, representative of Nigeria and University of Ottowa Professor of Law, provides analysis of the failure to endorse a new consolidated text by the 50th session of the World Intellectual Property Organization’s Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Traditional Cultural Expressions (WIPO-IGC). The article was originally published by ABS Canada, and is reprinted here with the author’s permission.   Link to article Discord over Rights and Measures-Based Approaches to the Protection of TK and TCEs Scuttles WIPO IGC 50 By: Chidi Oguamanam Backdrop to the 50th WIPO IGC Session At the 50th session of the World Intellectual Property Organization’s Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Traditional Cultural Expressions (WIPO-IGC), delegates arrived with expectations for a better outcome. However, after one week of deliberations from March 3-7, 2025, experts and diplomats failed to achieve consensus over an improved working text of international legal instrument(s) for the protection of traditional knowledge and traditional cultural expressions (TK/TCEs). The last session of the WIPO-IGC (the 49th session) was stalemated because the majority of delegates agreed that they failed to narrow gaps in the working texts of TK and TCEs from the 47th WIPO-IGC session. At the 49th session, delegates resolved not to transmit any instruments to the 50th session, which meant that they would fall back to the text of the 47th session to the collective disappointment of the Committee and its Finnish Chair, Anna Vuopala, at the December 2024 meetings. The 50th WIPO-IGC session was chaired by Brazilian diplomat Ms. Erika Patriota, who was invested in breaking the jinx of the 49th session. Despite her best efforts through a methodology that relied heavily on informal sessions as well as drew from the facilitation skill of the Filipino Friend of the Chair, Anne Adlon, the session’s intended purpose to narrow gaps and deliver on an improved text of negotiating instruments was not met. A hopeful start on the first couple of days resulted in ridding the two working texts (TK and TCEs) of a few redundant and unsupported alternative articles. However, a methodological failure arising from not reining in delegates who were determined to contribute new textual language, and who were determined to even substitute in wholesale fashion some existing articles, pushed the Committee off-balance away from narrowing gaps. Rights and Measures-Based Approach is Now a Critical Schism There was a palpable ideological schism among delegates on the perennial high level conceptual question over the nature of the instrument in relation to intellectual property rights. On one side are demandeur delegations who favour negotiating the TK/TCEs instruments as sui generis, or what one delegate characterizes as “IP+.”  On the other side are those who prefer that the instruments be in sync with conventional IP rights – with term limits, elaborate exceptions and limitations, and accommodation of the so-called “vibrant public domain.” More prominently and equally worrisome at the 50th WIPO-IGC session was a palpable division among delegates along “rights-based” and “measures-based” approaches to the protection of TK and TCEs. In simple terms, the rights-based approach is premised on the recognition of inalienable and existing rights of Indigenous Peoples and Local Communities (IPLCs) to their TK and TCEs as a fundamental anchor for the protection of those rights and the premise upon which any consequential measures are based. On the other hand, proponents of the measures-based approach, who are mainly non-demandeurs led by the United States and its allies in Group B (Japan, Canada, South Korea, Switzerland, UK), the EU, the Central European and Baltic States (CEBS), etc., are inclined toward a measures-based approach. The latter group of proponents of the measures-based approach proactively emphasizes and promotes a list of policy, regulatory, persuasive, and non-binding measures to encourage the “safeguarding” of TK and TCEs. In the opinion of these proponents, a soft-law (i.e., non-binding) approach is the preferred nature of such measures. The argument is that, in accordance with its mandate, the Committee should not prejudge the nature of the instrument that will result from its work. For most non-demandeurs, a measures-based approach is a suitable pathway to a non-binding treaty. For the demandeurs, that is, IPLCs as well as mostly developing countries of the global south who coalesce around the mainly fluid category of like-minded countries (LMCs), the African Group, the Group of Latin American and Caribbean Countries (GRULAC), India, China, and some members of the Asia Pacific Group (APG), a rights-based approach is preferred. The demandeurs support a stronger and binding instrument in the nature of the already-concluded treaty from the work of the Committee – the 2024 WIPO Treaty on Intellectual Property, Genetic Resources and Associated Traditional Knowledge. For this group, the fact that the Committee is required not to prejudge the outcome of its deliberations does not preclude designing a binding instrument. For demandeurs, the narrow focus of non-demandeurs on a non-binding instrument misses the other consideration regarding the outcome of the Committee’s work, which relates to whether it would result in a single or multiple instruments. At the beginning, the Committee set out on a pathway to three instruments, namely, TK, TCEs and Genetic Resources (GRs).  It has agreed on only one instrument so far, which is the binding instrument on GRs. Cut-and-Paste Merger for Artificial Consolidation Despite a lack of consensus, the 50th IGC attempted to merge the two remaining negotiating instruments on TK and TCEs into one document, in contrast to their being negotiated in parallel, which has been the practice. It is not as if no attempt has been made in the past at consolidating the two remaining documents. In February 2023 and March 2023, the Jamaican Chair of the IGC, Lilly-Clair Bellamy, raised the Chair’s Consolidated Texts of TK and TCEs, which some delegations wanted to be used as a working instrument at the aborted 49th session of the IGC. The attempt at the equally aborted 50th session to merge both texts in a cut-and-paste merging approach reflects the potential inclination of delegations toward a consolidated instrument. The Committee appears

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