Seedlings of Ideas for Artificial Intelligence: Learning from a Genetic Resources/Traditional Knowledge Treaty, the Plant Patent Act, & Nico Tanner

James P. Flynn, Managing Director of the Firm and Member in the Litigation and Employment, Labor & Workforce Management practices, in the firm’s Newark office, authored an article in ILN IP Insider, titled “Seedlings of Ideas for Artificial Intelligence: Learning from a Genetic Resources/Traditional Knowledge Treaty, the Plant Patent Act, & Nico Tanner.”

Following is an excerpt:

The World Intellectual Property Organization announced on May 24, 2024, a treaty on intellectual property, genetic resources, and associated traditional knowledge that was twenty-five years in the making.  As WIPO’s press release noted, “[n]egotiations for this Treaty began at WIPO in 2001, initiated in 1999 with a proposal by Colombia, where discussions were notable for their inclusion of Indigenous Peoples as well as local communities.” Because the treaty has importance in and of itself for the subject matter it covers, we will describe its substance. But because it also provides an example of process and structure that could help address concerns over the ownership of works created by deploying artificial intelligence (especially when coupled with an understanding of the history of laws governing US plant patents), we will also look at its evolution to help us think outside the box that some have worked themselves into on artificial intelligence works questions. Plus, I had not focused a piece on a treaty since 2016 (when I wrote about the TRIPS treaty on geographic indicators) and 2015 (when I wrote about the Trans-Pacific Partnership on trade secrets), so I seemed overdue.

First, what exactly is this treaty about?  Simply stated, it is an agreement concerning how intellectual property regimes will address genetic resources, such as medicinal plants, agricultural crops, and animal breeds. It is important that there be some agreement on such matters because, generally, one cannot protect genetic resources themselves as intellectual property, but inventions developed using them can be so protected, most often through a patent. Under the treaty, where a claimed invention in a patent application is “based on” genetic resources (GR), each contracting party shall require applicants to disclose the country of origin or source of the genetic resources. Where the claimed invention in a patent application is “based on” traditional knowledge (TK) associated with genetic resources, each contracting party (i.e. each country) requires applicants to disclose the Indigenous Peoples or local community, as applicable, who provided the traditional knowledge. As one commentator noted, “the new WIPO Treaty on Patents, Genetic Resources, and Traditional Knowledge has the potential to transform global biotechnology, promoting a fairer distribution of benefits and strengthening the rights of indigenous peoples and traditional communities.”

Second, one is tempted to ask “why it could have such impact?” Essentially, it is about some balancing, or re-balancing, of influence between those who have long used traditional knowledge and those who have co-opted such use through so-called bio-piracy:

"For many years, there have been concerns about “biopiracy” – the misappropriation of genetic resources (GR) and traditional knowledge (TK) from indigenous peoples and local communities, often in developing countries. Biopiracy involves researchers or companies obtaining GR or TK, using it to develop commercial products like medicines, and obtaining patents without adequately compensating or getting permission from the original TK/GR holders.

Some well-known examples of alleged biopiracy include: patents on wound-healing properties of turmeric, which had long been known in India; patents related to neem tree extracts, also used for centuries in India; Japanese and American patents on extracts of the African “Hoodia” cactus, traditionally used by San people to stave off hunger; and a US patent on the Amazonian “ayahuasca” vine, considered sacred and used in ceremonies by indigenous peoples."

[Dennis Crouch, WIPO Adopts Treaty on Intellectual Property, Genetic Resources, and Associated Traditional Knowledge; see also Matthew Campbell, World Intellectual Property Organization (“WIPO”) Adopts Treaty on Genetic Resources and Associated Traditional Knowledge]