[Federal Register Volume 90, Number 11 (Friday, January 17, 2025)]
[Notices]
[Pages 5827-5828]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2025-01092]
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DEPARTMENT OF COMMERCE
Patent and Trademark Office
[Docket No.: PTO-C-2024-0049]
Tribal Consultation on the WIPO Treaty on Intellectual Property,
Genetic Resources and Associated Traditional Knowledge
AGENCY: United States Patent and Trademark Office, Department of
Commerce.
ACTION: Notice of Tribal Consultation and request for written comments.
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SUMMARY: The United States Patent and Trademark Office (USPTO),
Department of Commerce, announces a Tribal Consultation, and requests
written comments, regarding the World Intellectual Property
Organization (WIPO) Treaty on Intellectual Property, Genetic Resources
(GRs) and Associated Traditional Knowledge (ATK) (hereinafter, the
``Treaty'') adopted by WIPO Member States in Geneva, Switzerland on May
24, 2024. The Tribal Consultation will consist of virtual webinars and
a request for written comments on whether the United States should sign
and implement the Treaty and any impacts of taking those actions. For
purposes of this Notice, the words ``Tribe'' or ``Tribes'' are intended
to refer to Tribal Nations, State recognized Tribes, other Tribes, and
Native Hawaiians and other Pacific Islanders.
DATES:
Webinar Dates: The two virtual webinars for federally recognized
Tribal Nations and their proxies will be held on Tuesday, March 18 and
Wednesday, March 19, 2025, 3 p.m. to 5 p.m. (eastern). The virtual
webinar for the Native Hawaiian Community, their representatives and
organizations, and other Pacific Islanders will be held on Thursday,
March 27, 2025, 3 p.m. to 5 p.m. (eastern). The virtual webinar for
State and non-recognized Tribes, and Tribal and inter-Tribal
organizations, including organizations that represent Indigenous
Peoples based in the United States, will be held on Friday, March 28,
2025, 3 p.m. to 5 p.m. (eastern).
Written Comment Deadline: Written comments on the questions in this
Notice must be received by Monday, April 28, 2025.
ADDRESSES: Webinar Registration Address: Please register in advance to
participate in one of these webinars at: https://www.uspto.gov/ip-policy/tribal-consultations-genetic-resources-traditional-knowledge-and-traditional-cultural. After registering, you will receive a
confirmation email containing information about joining the meeting. If
you are unable to join via the platform, a call-in number also will be
provided. The registration links are not the same for each webinar.
Written Comments Address: Written comments may be submitted by
email to: TribalConsult2025_GRATKTreaty@uspto.gov. Please use the
heading ``WIPO GRATK TREATY TRIBAL CONSULTATION 2025'' in the subject
line. Please note: Tribes must submit written comments responsive to
the issues raised in this Notice and/or the public FRN by Monday, April
28, 2025.
If electronic submission of comments is not feasible, please submit
comments by First-Class Mail or Priority Mail to: Susan Anthony, Tribal
Affairs Liaison, Mail Stop OPIA, U.S. Patent and Trademark Office, P.O.
Box 1450, Alexandria, VA 22314-1450.
FOR FURTHER INFORMATION CONTACT: Susan Anthony, Tribal Affairs Liaison,
Office of Policy and International Affairs (OPIA), USPTO, at
Susan.Anthony@uspto.gov or 571-272-8459. Please direct media inquiries
to the USPTO's Office of the Chief Communications Officer at 571-272-
8400. These webinars are closed to the media.
SUPPLEMENTARY INFORMATION: WIPO is a specialized United Nations agency
based in Geneva, Switzerland, that focuses on intellectual property.
Established in September 2000, the WIPO Intergovernmental Committee
(IGC) \1\ serves as a forum where WIPO Member States \2\ and accredited
observers can discuss and address the intellectual property issues that
arise in the context of access to GRs as well as the protection of
traditional knowledge (TK) and traditional cultural expressions (TCEs).
The IGC operates in accordance with a mandate \3\ determined by the
WIPO General Assembly.
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\1\ More information on the IGC may be found at: www.wipo.int/tk/en/igc. In particular, the current ``IGC Mandate'', covering the
biennium 2024/2025, may be found at: https://www.wipo.int/export/sites/www/tk/en/igc/docs/igc-mandate-2024-2025.pdf
\2\ WIPO currently has 193 Member States (www.wipo.int/members/en/).
\3\ The current ``IGC Mandate'', covering the biennium 2024/
2025, may be found at: https://www.wipo.int/export/sites/www/tk/en/igc/docs/igc-mandate-2024-2025.pdf.
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At its Fifty-Fifth (30th Extraordinary) Session, held in Geneva on
July 14-22, 2022, the WIPO General Assembly decided to convene a
diplomatic conference to conclude an International Legal Instrument
Relating to Intellectual Property, Genetic Resources, and Traditional
Knowledge Associated with Genetic Resources.
The diplomatic conference occurred on May 13-24, 2024, at WIPO
Headquarters in Geneva, Switzerland. On May 24, 2024, WIPO Member
States adopted the Treaty. The text of the adopted Treaty is different
in several respects from the proposed text \4\ that served as the
starting point for negotiations at the diplomatic conference.
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\4\ That text (known as the ``Basic Proposal'') may be found at:
https://www.wipo.int/edocs/mdocs/tk/en/gratk_dc/gratk_dc_3.pdf. In
October 2023, following a Special Session and Preparatory Committee
meeting of the IGC, the USPTO requested comments on draft text that
subsequently became the ``Basic Proposal'' of the diplomatic
conference (https://www.federalregister.gov/documents/2023/10/24/2023-23387/wipo-igc-negotiations-on-genetic-resources-and-associated-traditional-knowledge). Tribal input received by the
USPTO helped inform positions taken by the United States at the
diplomatic conference.
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Article 3 of the Treaty mandates that patent applicants disclose
the origin/source of a GR, or associated traditional knowledge (ATK)
provided by Indigenous Peoples or local communities, in certain
circumstances. In particular, the disclosure requirement is triggered
where a claimed invention is ``based on'' a GR or ATK, which requires
satisfaction of a two-part test: (1) the GR or ATK ``must have been
necessary for the claimed invention''; and (2) ``the claimed invention
must depend on the specific properties of'' the GR or ATK. Among its 22
articles, the Treaty covers several other topics, including treaty
objectives, definitions, exceptions and limitations, non-retroactivity,
sanctions and remedies for noncompliance, relationship with other
international agreements, and review and potential revision of Treaty
text.
For additional context, the text of the Treaty can be found on the
WIPO website at: https://www.wipo.int/edocs/mdocs/tk/en/gratk_dc/gratk_dc_7.pdf. WIPO's ``informal summary'' of the Treaty can be found
at: https://www.wipo.int/edocs/mdocs/mdocs/en/gratk_dc/gratk_dc_exsum.pdf.
The Treaty is open for signature by any eligible Member State of
WIPO for one year after its adoption (i.e., up to May 23, 2025).\5\ The
act of signing does
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not make a Member State a party to (i.e., bound by) the Treaty. Rather,
signing qualifies the signatory Member State to proceed to
ratification, acceptance, or approval and creates an obligation for the
Member State to refrain from acts that would defeat the object and
purpose of the Treaty.\6\ To become a party to the Treaty, a Member
State must undertake a separate step of ratification or accession.\7\
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\5\ According to WIPO, as of December 5, 2024, 38 delegations
had signed the Treaty: Algeria, Bosnia and Herzegovina, Brazil,
Burkina Faso, Cabo Verde, Central African Republic, Chile, Colombia,
Congo, C[ocirc]te d'Ivoire, Democratic People's Republic of Korea,
Dominican Republic, Eswatini, Gambia, Ghana, Indonesia, Lesotho,
Madagascar, Malawi, Marshall Islands, Morocco, Namibia, Nicaragua,
Niger, Nigeria, Niue, Paraguay, Peru, Saint Vincent and the
Grenadines, Sao Tome and Principe, Senegal, South Africa, Togo,
United Republic of Tanzania, Uganda, Uruguay, Vanuatu, Zimbabwe.
(https://www.wipo.int/export/sites/www/treaties/en/docs/pdf/gratk.pdf).
\6\ See, e.g., Article 18 of the Vienna Convention on the Law of
Treaties (https://legal.un.org/ilc/texts/instruments/english/conventions/1_1_1969.pdf).
\7\ See WIPO Treaty on Intellectual Property, Genetic Resources
and Associated Traditional Knowledge, Articles 12-13, 18 (https://www.wipo.int/edocs/mdocs/tk/en/gratk_dc/gratk_dc_7.pdf).
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The Treaty will enter into force three months after it is ratified
or acceded to by 15 Contracting Parties. \8\ Thereafter, Treaty
provisions will apply in any Member State of WIPO that is or
subsequently becomes a Contracting Party to the Treaty. This means, for
example, that the Treaty's required disclosure of the origin/source of
GRs/ATK will apply to all patent applicants who file an application in
a Contracting Party, including those applicants who come from countries
that have not ratified or acceded to the Treaty.
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\8\ According to WIPO, as of December 5, 2024, only Malawi had
ratified or acceded to the Treaty.
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Within the U.S. Government, the USPTO, based on authority delegated
by the U.S. Department of State, takes the lead in the WIPO IGC among
other Federal agencies and coordinates and develops U.S. positions on
issues before the WIPO IGC.
Request for Information
The USPTO welcomes Tribal input on any issues relevant to this
Notice and is particularly interested in comments responsive to the
questions below. The USPTO also has issued in this issue of the Federal
Register a notice entitled, ``Request for Comments and Testimony on the
WIPO Treaty on Intellectual Property, Genetic Resources and Associated
Traditional Knowledge,'' which is directed to the general public
(``public FRN''). Tribes may also provide comments responsive to the
questions or participate in the public hearing described in the USPTO's
public FRN regarding the Treaty.
Questions for Comment
When submitting written comments, please identify yourself and
either your Tribal Government, or that you are a Native Hawaiian or
other Pacific Islander. If you are a representative, please identify
yourself and for whom you are speaking. Commenters need not respond to
every question and may provide relevant information, even if not
responsive to a particular question.
1. In your view, should the United States sign and become a party
to the WIPO Treaty on Intellectual Property, Genetic Resources and
Associated Traditional Knowledge? In your response, please identify and
explain your reasons in detail, including legal, policy, and any other
considerations.
2. In your view, please explain whether the Treaty is consistent or
inconsistent with existing U.S. law, including tribal treaties and
other federal law. In your response, please explain your legal
reasoning and identify the provisions of the Treaty that are consistent
or inconsistent with U.S. law.
3. If, in your view, the Treaty is inconsistent with existing U.S.
law, please identify and explain the change(s) to U.S. law necessary
for compliance with the Treaty. In doing so, please describe any
impacts of adopting such change(s).
4. In your view, please explain whether the Treaty is consistent or
inconsistent with existing U.S. international obligations, including
treaties, free trade agreements, and other international agreement(s).
In your response, please explain your legal reasoning and identify the
provision(s) of the Treaty that are consistent or inconsistent with
specific U.S. international obligations.
5. Please indicate whether and, if so, how GRs and ATK may be
protected by existing U.S. law(s). In doing so, please explain your
legal reasoning and identify the specific law(s) by which GRs and ATK
may be protected.
6. Please indicate whether and, if so, how GRs and ATK may be
protected by tribal treaties, tribal customary law and protocols,
tribal codes, or in other ways. In doing so, please explain your legal
reasoning and identify the specific provision(s) of the identified ways
by which GRs and ATK may be protected.
7. If the United States does not become a party to the Treaty,
please identify any Treaty or other provision(s) you believe should be
incorporated in U.S. patent or other law for protection of GRs and ATK.
In your response, please explain the reason(s) for and any impact(s)
of, incorporating those provisions in U.S. patent or other law.
8. In your view, please identify and explain any impact(s) of
implementing the Treaty on domestic and global innovation, including
both tribal and non-Indigenous innovation.
9. Based on your experiences with other countries that require
patent applicants to disclose the source or origin of GRs or ATK,
please identify and explain any possible impact(s) of Treaty
implementation in the United States.
10. In your view, please identify and explain any impact(s) of
implementing or not implementing the Treaty on the Tribal Nations and
other Indigenous Peoples located in the U.S.
Derrick L. Brent,
Acting Under Secretary of Commerce for Intellectual Property and Acting
Director of the United States Patent and Trademark Office.
[FR Doc. 2025-01092 Filed 1-16-25; 8:45 am]
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