The United Nations (UN) convention on biological diversity defines the term biolocial diversity as "the variability among living organisms from all sources including, inter alia, terrestrial, marine and other aquatic ecosystems and the ecological complexes of which they are part; this includes diversity within species, between species and of ecosystems".
Traditional Knowledge can be defined as knowledge that:
- indigenous peoples and local communities create in a collective context, conserve and pass on, and do so irrespective of whether this knowledge is widespread or not;
- is distinctly connected to cultural and/or social identity and is the cultural inheritance of an indigenous people and local community. These people consider themselves to be the administrators, preservers and protectors of the knowledge and act from a position of cultural and traditional responsibility;
- every generation passes on to the next;
- exists in codified, oral or other form and is possibly interactive or can develop;
- evolves through intellectual activity which exists within a diverse social, cultural, ecological and/or technical relationship; and
- an indigenous community or local community designate as traditional knowledge.
"Access and benefit sharing" describe the access to genetic resources and traditional knowledge, as well as the fair and equitable sharing of the benefits of its use. This mechanism serves to bring humanity’s use of natural resources into harmony with the conservation of biological diversity. The following issues are central:
- Does the use of a plant for pharmaceutical research require the consent of the provider country of the plant?
- What is the provider country of a plant?
- Should the profit made by the sale of a product based on the active ingredient in this plant be shared? If yes, with whom and in what form should the profits be shared?
- A researcher finds a plant thanks to the knowledge of a local healer; is the consent of the healer required for the use of his/her knowledge? Should the healer be informed of the research project? Does the healer, or the community, have a claim to a share of the profits earned through the sale of the product?
- the appropriation of genetic resources or traditional knowledge without the consent of the provider country or the indigenous community that has developed this knowledge;
- any profits which have been earned through the commercial use of genetic resources or traditional knowledge and which are not shared with the provider country or the indigenous community; and/or
- cases in which traditional knowledge is protected, such as through patents, without the patent owner having made an inventive step.
The applicant for a patent is obliged to provide information on the source of a genetic resource or traditional knowledge which is from an indigenous people or local community. Disclosing the source creates transparency, especially for "access and benefit sharing".
If there is no declaration of the origin of the genetic resource or traditional knowledge in the patent application, the Swiss Federal Institute of Intellectual Property (IPI) gives the applicant a period of time in which to rectify the defect and, if the deadline passes, it rejects the application. Intentionally falsifying information about the source is subject to a fine. In addition, the judge may order the publication of the ruling.
Harmonisation and partial revision of guidelines as of 1 July 2023
Conference on Intellectual Property & Sustainability at the University of Geneva
Symposium: "Best practices in the fight against counterfeiting & piracy – NFTs not your cup of tea? Well, they should: NFTs as a new way of fighting counterfeiting and piracy"