Taking a major leap forward, the World Intellectual Property Organization (WIPO), which Colombia joined in 1980, has adopted a new treaty that seeks the protection and responsible use of genetic resources and associated traditional knowledge. This marks the first international treaty of the WIPO that addresses the link between intellectual property, genetic resources, and traditional knowledge, and includes provisions in favor of indigenous and local communities.
This groundbreaking Treaty is of great significance to Colombia, not only positioning it as a leader in the defense of natural and cultural heritage, but also because it allows for the strengthening of the protection of its wealth in species of fauna, flora, ecosystems and habitats, and of its ancestral knowledge, as it is a multicultural and multiethnic country where more than 100 indigenous populations coexist. It was imperative to obtain recognition of the traditional and ancestral knowledge associated with genetic resources, which are ultimately the ones that favor the proper development of inventions based on them.
The Treaty has two main objectives: (i) Enhance the effectiveness, transparency, and quality of the patent system; and, (ii) Prevent the erroneous registration of patents for inventions that are not novel or do not involve inventive activity in relation to genetic resources and traditional knowledge associated with such resources.
Genetic resources are defined in the Treaty as any material of plant origin of real or potential value (medicinal plants, agricultural crops), animal (animal breeds) and microbial (microbiological).
To advance this purpose, an additional requirement is included in the processing of patent applications, called the "Disclosure Requirement" and it has to do with the requirement for patent applicants to indicate:
(i) The country of origin of the genetic material, or if unknown, the source of such resources, when the claimed invention is based on these; or
(ii) The indigenous or local communities that have provided the traditional knowledge associated with the genetic resource, or if unknown, the source of the knowledge, when the claimed invention is based on such knowledge.
In the event that such information is unknown, the Superintendency of Industry and Commerce, in the case of Colombia, will require the applicant to make a statement to the effect that they do not know the information and that the content of the same is true.
Finally, the Treaty leaves it to the discretion of the State Parties to adopt legal, administrative and/or political measures in the event of non-compliance or fraudulent intent with the disclosure requirement.
Now we must wait for the modification of Decision 486 of 2000 in this regard, since this is the regime applicable to patents in the Andean Community countries.
