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

Abstract

AbstractThis 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 Agreement on Trade-Related Aspects of Intellectual Property Rights and the World Intellectual Property Organization Patent Cooperation Treaty, can facilitate implementation of global environmental standards in the field of biodiversity law. It provides 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. Still, many patent disclosure requirements that pre-date the Nagoya Protocol apply only to genetic resources the provenance of which is the same country that 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 the fulfilment of a core monitoring obligation of the latter, while enabling wider synergies and transparency within the IP system.