The requirement for disclosure of origin in patent law mandates applicants to disclose the origin or source of genetic resources (GR) and traditional knowledge (TK) used in inventions. This requirement is particularly relevant for biotechnological innovations with its aim to enhance transparency of these inventions and ensure compliance with the Convention on Biological Diversity (CBD) and the Nagoya Protocol. With the EU encouraging voluntary disclosure through Recital 27 of Directive 98/44/EC, some countries, like Switzerland, have opted for mandatory regimes. Article 49(a) of Switzerland's Federal Act on Patents for Inventions requires applicants to disclose the source of GR and associated TK and imposes penalties for false disclosure. The new WIPO Treaty on IP, GR and the associated TK establishes a binding international instrument mandating disclosure of origin, with expected significant implications for patent systems worldwide.
There is an empirical gap regarding the ability of patent applicants to access accurate information on the actual or geographical origin of GR and TK. The patent disclosure data of origin or source information has not been sufficiently studied to answer the question of feasibility of such requirements. The analysis in this project targets the characteristics of information disclosed by patent applicants under a mandatory regime and assess applicant’sability to access such information on the origin of GR and TK for effective disclosure. The factors influencing applicants’ disclosure capacity have not been studied from the perspective of economic and technological hurdles. The research will focus on Switzerland, Norway, France, and Germany—countries with biotechnology patenting activity and disclosure requirements.
The project introduces an empirical approach to applicants’ observed behavior and sheds light upon the implementation of the new WIPO Treaty. A systematic analysis of public patent databases will identify the extent and nature of disclosures in biotechnological patents. In this regard, Switzerland and Norway stand out with their mandatory requirement of disclosure of origin. The research relies on filters such as "genetic resources and traditional knowledge" as well as the international patent classification identifiers in order to locate relevant patents and track the disclosed information of origin by applicants. The findings of the project aim to explore factors influencing applicants’ access to such information and disclosure behavior. These factors include due diligence practices and the potential role of technologies like DNA barcoding. The project aims to propose evidence-based recommendations to improve the formulation of the disclosure-of-origin requirement. By addressing the challenges faced by patent applicants and offering practical solutions, the study aims to enhance compliance with global biodiversity frameworks while ensuring that patent systems remain effective, transparent, and equitable.
