On January 17, 2025, the United States Patent and Trademark Office (“USPTO”) published a request for written comments on a recently adopted treaty. The treaty—the World Intellectual Property Organization’s (“WIPO”) Treaty on Intellectual Property, Genetic Resources and Associated Traditional Knowledge (“GRATK Treaty”),was adopted on May 24, 2024. Additional information about the GRATK Treaty can be found in two prior WilmerHale articles:
The USPTO has indicated that it will hold public hearings for federally recognized Tribal Nations, the Native Hawaiian Community, state-recognized and non-recognized Tribes, and Tribal and inter-Tribal organizations to provide testimony on the GRATK Treaty. The first and second online meetings, for federally recognized Tribal Nations, will be held March 18–19. The third, for the Native Hawaiian Community, will be held March 27. The fourth, for state-recognized and non-recognized Tribes, as well as Tribal and inter-Tribal organizations (including organizations that represent Indigenous Peoples based in the United States), will be held March 28. Registration, which is required to participate, may be done here.
The USPTO is specifically seeking written comments on any of the following ten questions:
- 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.
- 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.
- 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).
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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 [United States].
All written comments must be received by the USPTO by April 28.
