Genetic Resources – Centre on Knowledge Governance

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A Paradigm Shift with an Uncertain Future: Prof Wend Wendland on the WIPO Treaty on Genetic Resources and Associated Traditional Knowledge

Wend Wendland / 2 October, 2025

On 25 September 2025, Professor Wend Wendland, delivered the 14th Peter Jaszi Distinguished Lecture at American University in Washington D.C.. The event was hosted by the Program on Information Justice and Intellectual Property. For over 25 years at WIPO, Prof. Wendland played a critical role in the area of traditional knowledge, including as the Director of the Traditional Knowledge Division and Secretary of the Intergovernmental Committee (IGC). His lecture, titled “Beyond Adoption: Why it Matters and What’s Next for the WIPO Treaty on IP, Genetic Resources and Associated Traditional Knowledge?”, celebrated the recent adoption of this landmark agreement. In his lecture, Professor Wendland described the Treaty as a ‘historic’ event and a ‘paradigm shift’ in intellectual property. He highlighted that it is the first international IP treaty championed by developing countries and Indigenous Peoples, making them policy-makers rather than policy-takers. The Treaty’s core feature is a new mandatory requirement for patent applicants to disclose the origin of genetic resources and associated traditional knowledge. This aims to combat biopiracy and reconcile innovation with biodiversity conservation and equitable benefit-sharing. This transparency is expected to improve the patent system’s quality and efficacy, while also contributing to environmental, economic, and social justice by acknowledging the role of Indigenous Peoples as stewards of biodiversity. Despite his enthusiasm, Wendland acknowledged the Treaty’s limitations, noting that it does not create new rights in traditional knowledge, and does not directly ensure compensation for provider countries and Indigenous Peoples. It represents what could be agreed upon by consensus after a 25-year struggle, demonstrating strategic pragmatism. The adoption itself is significant, marking a step forward in the evolution of the IP system and providing a platform for a more inclusive conversation about the future of IP. However, Wendland cautioned that the treaty’s adoption alone is not enough; its true significance will depend on its practical implementation and effectiveness. Finally, Wendland discussed the path forward, stressing the immediate need for the Treaty to come into force, which requires ratification by 15 countries. He expressed concern that this process might be slower than hoped, with some major countries like the USA, Japan, and the Republic of Korea opposing the treaty, and others like India and China not yet signing it. Potential hurdles for ratification include political reluctance to recognise Indigenous Peoples, conflicts with existing national laws, and pressure from trading partners. Wendland concluded by urging policymakers, patent offices, and the international community to work towards bringing the Treaty to life, ensuring its paradigm-shifting potential is realised in practice. Watch the full presentation here.

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25 Sept 2025: Beyond Adoption: Why it Matters and What is Next for Intellectual Property, Genetic Resources and Traditional Knowledge

Ben Cashdan / 23 September, 2025

On 25 September, former Director of the Traditional Knowledge Division at the World Intellectual Property Organization Wend Wendland will deliver a lecture on the landmark World Intellectual Property Organization (WIPO) Treaty on Intellectual Property, Genetic Resources and Traditional Knowledge, which was adopted in May 2024. He will address the treaty’s significance in policy making and knowledge governance. The talk is part of the Peter A. Jaszi Distinguished Lecture on Intellectual Property series, hosted by the Program on Information Justice and Intellectual Property at American University (PIJIP). The reception after the event will feature an announcement of the newly launched Geneva Centre on Knowledge Governance (see below, in PDF).

Blog, Traditional Knowledge

WTO: Brazil, India and Peru call for the inclusion of a mandatory disclosure requirement in the WTO TRIPS Agreement

InfoJustice Eds. / 22 June, 2025

This post was originally published on KEI Online by Thiru On 18 March 2025, the World Trade Organization (WTO) published a communication (IP/C/W/719) by Brazil, India, and Peru entitled, “Revising discussions on the relationship between the TRIPS Agreement and Convention on Biological Diversity“. Brazil, India, and Peru have called for the inclusion of a mandatory disclosure requirement in the TRIPS Agreement based on a 2011 proposal (TN/C/W/59) by Brazil, China, Colombia, Ecuador, India, Indonesia, Peru, Thailand, the ACP Group and the African Group in 2011 to amend Article 29 of the TRIPS Agreement. The paper makes no explicit reference to digital sequence information (DSI). While this topic was broached at the March 2025 TRIPS Council meeting, this topic will be addressed at the next TRIPS Council meeting (26-27 June 2025). In the chapeau of the March 2025 paper, the demandeurs (Brazil, India, and Peru) articulated the interplay between traditional medical knowledge, modern medicine, traditional and complementary medicine use, the misappropriation of genetic resources, intellectual property, and biopiracy: 2. A WTO-WIPO-WHO joint study of 2020 titled ‘Promoting Access to Medical Technologies and Innovation’ notes the profound influence of traditional medical knowledge on modern medicine. With 88% of WHO members acknowledging traditional and complementary medicine use, international trade in these products is growing rapidly. However, the study notes that this has come on the back of the rampant misappropriation of genetic resources (GR) and associated traditional knowledge (TK). Some prominent examples of biopiracy include neem (India), turmeric (India), kava (Pacific Islands-Fiji and Vanuatu), ayahuasca (Brazil), quinoa (Peru), and hoodia (South Africa). Assessing the economic loss to developing countries due to biopiracy is a complex task involving multiple factors, such as the loss of intellectual property (IP) rights, restricted access to genetic resources, negative impact on traditional industries, and discouragement of research and development in the country of origin. In relation to biodiversity, the co-sponsors of IP/C/W/719 quoted a WHO Global Report on Traditional and Complementary Medicine from 2019, “developing countries, especially those with rich biodiversity in Asia, Africa, and South America, supply approximately two-thirds of the plants used in western and global medical systems”. Furthermore, the demandeurs noted: While recent data is publicly unavailable, a 1999 report by the United Nations Development Program estimates that if a 2% royalty were charged on genetic resources developed by local innovators in the South, the North would owe over USD 300 million in unpaid royalties for farmers’ crop seeds and more than USD 5 billion in unpaid royalties for medicinal plants. In the 719 paper, Brazil, India, and Peru described the Convention on Biological Diversity (CBD) and the Nagoya Protocol as having a “significant shortcoming” noting that the CBD and Nagoya Protocol do not “link these requirements with the patent system, resulting in the grant of erroneous patents to biopiracy-based inventions and lack of enforcement of the PIC and ABS commitments, particularly in a transboundary context.” 4. The CBD (1992) marked the first step towards recognising the sovereign rights of states over their biological resources. It conditioned access to biological resources and associated traditional knowledge with prior informed consent (PIC) and access and benefit sharing (ABS) with local communities, who are the rightful holders of such knowledge. The Nagoya Protocol, which came into force in 2014, further developed the legal framework established under the CBD to operationalise the requirements of PIC and ABS. A significant shortcoming of the CBD and Nagoya Protocol is that it does not link these requirements with the patent system, resulting in the grant of erroneous patents to biopiracy-based inventions and lack of enforcement of the PIC and ABS commitments, particularly in a transboundary context. The 719 paper points to the WIPO Treaty on Intellectual Property, Genetic Resources and Associated Traditional Knowledge, adopted in May 2024, as the culmination of over two decades of work to address some of the shortcomings in the CBD and Nagoya Protocol. 6. The WIPO treaty requires patent applicants to disclose the source of the genetic resources and traditional knowledge on which their claimed invention is based. The disclosure requirement, if complied with by the applicant, would aid the patent office in conducting a prior art search. It would help prevent the patenting of inventions based on genetic resources and associated traditional knowledge that do not fulfil the requirements of novelty and inventiveness. Genetic resources and associated traditional knowledge obtained from one country are often used as a basis for seeking a patent in another. In such situations, the disclosure requirement would make the patent office the checkpoint to identify instances of transboundary utilisation of genetic resources and traditional knowledge. While hailing the WIPO Treaty on IP, Genetic Resources and Associated Traditional Knowledge, the 719 demandeurs are cognizant that the WIPO treaty “does not offer recourse to international dispute settlement if states fail to establish the disclosure requirement under their domestic patent systems”. The demandeurs call for the amending of the TRIPS Agreement to integrate the mandatory disclosure requirement into the WTO’s institutional architecture, including its binding dispute settlement system. 7. While a progressive instrument, the WIPO treaty could be further strengthened by integrating these commitments under the TRIPS Agreement. First, the WIPO treaty does not offer recourse to international dispute settlement if states fail to establish the disclosure requirement under their domestic patent systems. Second, the WIPO treaty does not address the requirements to obtain PIC under mutually agreed terms (MAT). Hence, even though the treaty introduces the disclosure requirement, it does not provide for compliance with the ABS requirements. The WIPO treaty shifts the burden to ensure compliance on the government agencies and local communities of the provider country, who must monitor published patent applications worldwide to ensure compliance and enforce ABS through PIC under MAT. Thus, amending the TRIPS Agreement to integrate the mandatory disclosure requirement could subject this commitment to the WTO’s legal framework. Further, the TRIPS Agreement could build on the WIPO treaty to require evidence of PIC and benefit-sharing arrangements as a prerequisite for patent grant or commercialization, thereby reinforcing the

Blog, Traditional Knowledge

WIPO-IGC 51st Sessions Breaks Jinx, Recommends Mandate Renewal

Chidi Oguamanam / 11 June, 2025

by Chidi Oguamanam* First Published by ABS Canada here. Republished on Infojustice with the permission of the author. Delegates to the World Intellectual Property Organization Special Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Traditional Cultural Expressions (WIPO-IGC) resumed and concluded their last deliberations for the 2024-2025 biennium on May 30-June 5. Most of the first day was used for the traditional opening statements through which major negotiating blocs and delegations signalled to one another their expectations for the 6-day meeting. No Appetite for Impasse The 51st session was unique in many ways. It was co-chaired by Anna Vuopala (Finland) and Erika Patriota (Brazil). Respectively, each of the two Chairs superintended over two failed IGCs – IGC 49 and IGC 50. Their co-chairing of the last and final sessions of the IGC for the biennium was expected to draw from their experiences from the two failed previous sessions in a row. The odds were in their favour. Neither of the hardliner demandeur nations or blocs nor their non-demandeur counterparts were disposed to filibuster negotiations. Any such outcome would potentially result in non-renewal of the IGC mandate for the next biennium (2026-2027). It was clear to the delegates that mandate renewal was the biggest issue on the agenda listed under item 6 for the session (Taking Stock of Progress and Making a Recommendation to the General Assembly). Tension on Rights-based and Measures-based Approaches Remains Yet, despite the priority of mandate renewal, there was no let up to the tensions that partly led to the two failed IGCs. The United States, Japan and their Group B allies as well as CEBs, and Switzerland were bent on enumerating a litany of measures in the text in preference to rights. They construed a measures-based approach as having priority over a rights-based approach to the protection of TK and TCEs. At the 50th session, the US delegation, with the active support of Japan, Korea, Canada and Switzerland introduced the language of “safeguarding” to further entrench their measures-based approach and conceivably to water their expectation for a soft and non-binding instrument. This sentiment is also shared by the EU as a bloc. The attempt to center a measures-based approach stoked tension and resistance on the part of the broad coalition of the Indigenous Caucus, African Group, Group of Like-Minded Countries, China, the Group of Latin American and Carbbean Countries, some members of the Asian Pacific Group and New Zealand. It also nearly derailed the 51st sessions with demandeurs insisting on blocking those safeguarding aspects of measures-based languages regarding TK and TCEs. Nigeria deplored the deliberate attempt at regime duplication as a ploy to undermine the IGC mandate on TK and TCEs which is clear on effective protection of the subject matters. For Nigeria and the Africa Group, safeguarding of TK and TCEs is dealt with at the UNESCO. As a compromise, those textual drafts on safeguarding and measures-based were taken on board by the three facilitators of the 51st sessions (Ghana, US and Colombia) in an ambiguous procedural circumstance and kept in square brackets under “Alternative X”. This was to preserve the sanctity of the Facilitators’ Alternatives carried over from the IGC 49 texts (WIPO/GRTKF/IC/49/4; WIPO/GRTKF/IC/49/5 which was the default working document and same as from IGC 47) around which there remains a broad coalescing of understanding. Thus, the two texts (TK and TCEs) from the 51st session did little to close gaps. In sum, the delegations agreed on modest progress on the two texts of the TK and TCEs from the 51st sessions. The progress included modest striking out of a few texts that did not have the backing of any interested bloc as well as the bracketing of the US and allies-backed Alternative X. The remaining two days were devoted to mandate negotiations. United States-led Charge to Weaken IGC Mandate The mandate was negotiated through a combination of deliberations at the informal sessions with ratifications at the plenary. The United States delegation left no doubt regarding their determination to limit the IGC meetings and to whittle down its mandate, a move that was strongly supported by Japan, Switzerland and some Group B allies. The United States went as far as proposing a maximum of two meetings, arguing for resetting the IGC for lack of progress. From the perspective of demandeurs, if there was lack of progress, the blame lies with non-demandeurs whose strategy for scuttling progress remained obvious. For the demandeurs, there was need to keep the momentum created by the two recent WIPO treaties of 2024 – the GR Treaty and the Riyadh Design Law Treaty. These developments called for more meetings and not less. Framing GRs in the TK/TCEs Mandate After GR Treaty In addition to different narratives of progress and dissonance over the number of meetings, another issue of contention for the mandate was how to frame GRs into the mandate given the conclusion of the GR treaty. For IPLCs through the Indigenous Caucus, the conceptual holism of TK, TCEs and GRs is not undermined by the fact that a GR treaty has been concluded within the framework of patents. For the Caucus, the Africa Group, GRULAC and LMCs and other demandeurs, discussions about GRs cannot be severed from TK and TCEs notwithstanding the conclusion of the GR treaty. As a compromise position, delegates agreed that GRs will continue to be part of the IGC mandate, save that there will be no normative negotiations capable of reopening the GR text. Debate over an Evidence-based Method The next most prominent issue in the mandate negotiations was the palpable suspicion among demandeurs and non-demandeurs on the language regarding collection of evidence to inform negotiations. Evidence-based methodology has been an integral part of the mandate and the work of the IGC. Demandeurs insisted that there is a deluge of real-world evidence and studies, now increasingly magnified by emergent national and regional regimes on the protection of GRs, TK and TCEs. They maintained that the tendency by non-demandeurs to fixate on an

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US Proposes Limiting IGC Meetings and Mandate

Sean Flynn / 3 June, 2025

The United States delegation, in its opening statement to the World Intellectual Property Organization’s Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore, expressed its desire to limit the activities and mandate of the Committee. The US statement, made at the 51st meeting of the Committee, recalled that the last two meetings failed to produce a common text of an agreement on traditional knowledge (TK) and traditional cultural expressions (TCEs) for the next meeting to work on. At the 49th meeting, the Like Minded Countries Group of developing countries supporting the IGC’s work blocked further use of a complex facilitator’s text produced at that meeting that contained a large number of newly competing provisions on most of the draft’s topics. At the 50th meeting, first the US and then Nigeria blocked further consideration of a consolidated text that combined draft documents on TCEs and on TK and contained several proposed changes that would threaten the desire by some for a binding and rights based approach. The US statement cited this lack of “tangible progress on textual negotiations” as evidence of “significant divergence among Member States on the purpose of the IGC and its desired outcomes” which “warrants taking a step back and reflecting on where we are going with these negotiations.” The IGC is not a standing committee, which means that the General Assembly must reapprove a mandate for the Committee to continue work. That mandate, for the coming General Assembly meeting in July, will be negotiated at the 51st IGC. In this context, the US opined that “the next mandate should schedule fewer sessions,” and suggested that the Committee move from the current three meetings per year to just one. The US statement is reprinted below in full. Other countries and groups supported renewing the mandate and holding three meetings per year. The US statement indicates that the negotiation over the mandate may be hard fought. UNITED STATES OF AMERICA: Thank you, Chair. As we discussed potential renewal of the mandate, we should keep in mind the last two IGC meetings, IGC 49 and 50, ended with no tangible progress on textual negotiations. As we mentioned this morning, this came at great expense of time and money for the WIPO Secretariat, Member States and accredited observers. This lack of progress reflects the significant divergence among Member States on the purpose of the IGC and its desired outcomes. For example, we have not even been able to agree on the basic issue of whether the TK and TCE text should reflect the views of all Member States. In our view, this lack of tangible progress warrants taking a step back and reflecting on where we are going with these negotiations. The lack of tangible progress also warrants moving the IGC in a more productive and less contentious direction. This mandate renewal discussion provides an opportunity to reset IGC dynamics which is needed if the IGC is to operate in an effective manner. To that end, the next mandate should schedule fewer sessions. It should also require the use of real world scenarios including case studies during Committee sessions to rejuvenate and refocus our discussions and to encourage participants to have a constructive exchange of views. And the next mandate should also reaffirm that all Member State proposals will be reflected in working text and along those lines should reference the reality that currently exists, namely that Member States have widely divergent positions. I will briefly elaborate on the number of meetings in the biennium. The United States calls on the IGC to recommend to the General Assembly that the mandate reduce the number of sessions in the next biennium. In our view, this will lead to better meeting preparation and attendance which will hopefully result in more productive engagement and forward progress for the Committee. Fewer meetings will also help to temper expectations given the wide divergence in views among Member States in terms of priorities, working methodologies and acceptable outcomes. Most WIPO bodies hold their meetings once a year. It’s time to bring the IGC in line with that standard. Consequently, the next biennial mandate should schedule no more than two IGC sessions for the biennium, one session per year. Next, the mandate should continue to reflect the preservation of separate texts and work streams for TK and TCEs. The mandate should also retain language on taking an evidence-based approach, having a Member State driven process, providing examples of national experiences and adopting a work program based on open and inclusive working methods. We would like Member States to agree that proposals related to IGC work streams, including those directed to biodiversity issues, should be raised in the IGC and not in WIPO’s technical bodies such as technical Committees and working groups. Over the last year, several technical bodies at WIPO have faced proposals that are duplicative of IGC discussions. This has created unnecessary confusion in those bodies and distracted them from their properly mandated work. In our view, these proposals belong only in the IGC. Participants would be confused and express opposition if patent proposals were raised in the SCCR or updates to the international patent classification were proposed in the Madrid Working Group. Proposing GR, TK and TCE-oriented changes in other bodies or WIPO contexts is no different and ignores the jurisdictional integrity of WIPO bodies. The United States believes ensuring discussions are not taking place in duplicative manners across WIPO bodies is a critical consideration in any mandate outcome moving forward. Neither the TK nor TCE subject matter is ready for a Diplomatic Conference. Instead, the current texts reflect widely divergent positions. The IGC needs to continue the discussion and negotiation process. With or without brackets, the wide range of alternatives in the working text is a compelling reminder of just how far apart Member States are on every critical aspect of these discussions. Consequently, at this time, the United States cannot support a recommendation to the WIPO General Assembly that it convene

Blog, Traditional Knowledge

WIPO Debate Stalls Over Including the Genetic Resources Treaty in the PCT Framework

Andres Izquierdo / 27 February, 2025

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

Blog, Design Law Treaty

Developing Countries' Accomplishments in the WIPO Design Law Treaty

Sean Flynn and Luca Schirru / 24 January, 2025

Last year, two new intellectual property treaties were adopted by the World Intellectual Property Organization — one on the disclosure of uses of genetic resources in patent applications and a second on applications for design law protection. Although the design law treaty was promoted by wealthy countries of the global north, the final outcome shows the impact of developing countries who advocated for deleting or softening provisions that regulated substantive design law while protecting the ability to require information related to Traditional Cultural Expressions (TCEs), Traditional Knowledge (TK), or biological and genetic resources (GR). Opening the closed list for application criteria The main intent of the Design Law Treaty was described as harmonizing procedures and formalities for applying for design law protection. There is very little substantive international law on design protection, and the treaty was not billed as creating such minimum requirements. However, by proposing to restrict the elements that may be requested in a design law application, the basic proposal for the treaty in effect restricted what elements could be considered in granting protection. The basic proposal for the treaty followed the Trademark Law Treaty in proposing a closed list of elements that could be required in an application. The closed nature of the list was made clear in subsection 2 of what was ultimately included as Article 4 of the treaty, which states: “[Prohibition of Other Requirements] No indication or element, other than those referred to in paragraph (1) and in Article 10, may be required in respect of the application.” The problem with a closed list of application criteria is that it limits the substantive criteria that governments can rely upon in granting design law protection. As Bagley (2018, 995-996) argued: “by delineating a closed list of application requirements that countries can impose on applicants, the DLT in effect moves beyond formalities to placing substantive limits on countries in relation to design registration”. In the early stages of consideration of the Treaty, developing countries focused on the lack of language in the closed list allowing countries to require disclosure of traditional cultural expressions, traditional knowledge, or genetic resources used in the design seeking protection. The basic proposal for the DLT included two alternatives on these issues: “ALTERNATIVE A [(ix) a disclosure of the origin or source of traditional cultural expressions, traditional knowledge or biological/genetic resources utilized or incorporated in the industrial design;]” “ALTERNATIVE B [(ix) an indication of any prior application or registration, or of other information , of which the applicant is aware, that is relevant to the eligibility for registration of the industrial design;]” During the negotiation, Knowledge Ecology International raised other issues that the United States and other laws require disclosure of in design law applications that were not included in the closed list. These included, for example, requirements to disclose uses of public funding and artificial intelligence in the creation of the design. There was considerable opposition from the “Group B” wealthy countries of the global north to the language in Alternative A including reference to “biological/genetic resources” in the permitted elements of an application. Delegations argued that such resources were not relevant to design law. In the end, the compromise text excluded direct mention of genetic resources but adopted open language that permits countries to require any application element deemed “relevant” to the registration of the design: Article 4 … (2) [Indication of Information] A Contracting Party may require, where permitted under the applicable law, that an application contain an indication of any prior application or registration, or of other information, including information on traditional cultural expressions and traditional knowledge, of which the applicant is aware, that is relevant to the eligibility for registration of the industrial design. (3) [Prohibition of Other Requirements] No indication or element, other than those referred to in paragraphs (1) and (2) and in Article 12, may be required in respect of the application. The final outcome thus permits countries to allow disclosures of genetic resource information as well as information about uses of public funding, artificial intelligence, and other elements that a country deems relevant to the registration. Eliminating Term of Protection The basic proposal for the DLT included two options for requiring a term of protection. Term of protection is indisputably substantive, and many countries opposed its inclusion in the treaty on this basis. But two other treaties — the Hague Agreement and the WTO’s TRIPS agreement — have minimum terms of protection of 5 years and 10 years respectively. A proposal by the USA would have harmonized members to a minimum 15-year term, which is the present US law. [Article 9Bis Term of protection A Contracting Party shall provide a term of protection for industrial designs of at least 15 years from either: (a) the filing date, or (b) the date of grant or registration.], proposed by USA.[Article 9Bis Term of protection Contracting Parties shall have the option to comply with Article 17 of the Hague Convention or Article 26 of the TRIPS Agreement.], proposed by Nigeria. There was united opposition to any term of protection in the agreement by the Africa Group, GRULAC, and APG. As a result, fairly early on in the negotiation, Article 9bis was dropped from the negotiating text and no term of protection was included in the final treaty. Making the Grace Period Optional The basic proposal included language on grace periods during which a design could be disclosed without affecting its registerability. There are no regulations of grace periods in the Patent Law Treaty, Trademark Law Treaty, or the Hague Agreement. Concerns were raised that this provision may disproportionately favor larger firms in weather countries that “can afford to disclose their designs publicly without immediately filing for protection, potentially stalling local competitors who lack the financial or legal capacity to navigate complex intellectual property landscapes”. The final text established a grace period of 12 months but made this provision subject to a reservation. Thus, countries may join the agreement without binding themselves to the grace period