How Will a Substantive Patent Law Treaty Affect the Public Domain for Genetic Resources and Biological Material?

Abstract

The Standing Committee on the Law of Patents (SCP), a specialized committee on patent law under the World Intellectual Property Organization (WIPO), is presently negotiating a Substantive Patent Law Treaty (SPLT). Although its objectives are not expressed in clear language, these negotiations can be assumed to aim at achieving international harmonization on outstanding topics in patent law, such as a common understanding of standards governing the patent criteria, patent applications and patent claims, and their equivalent interpretation. 1 The SPLT negotiations cover three separate legal documents: the draft Treaty (i.e. the SPLT), the draft Regulations under the SPLT and the draft Practical Guidelines. Probably only the draft Treaty will be legally binding in the classic sense of international law, while the Regulations and Practical Guidelines will likely not have treaty status and will therefore probably not be subject to ratification by the legislatures of the contracting parties. However, they will have a normative effect when the SPLT enters into force. In the effort to harmonize outstanding topics of patent law, the negotiations and future interpretations will necessarily touch on some controversial areas. One such area is that of patenting living organisms and genes.2 There is an international debate addressing how to keep a publicly available, vital room for manoeuvre in research on genetic resources and living organisms. The term “genetic resources” is defined as a legal term in the Convention on Biological Diversity (CBD), whereas “biological material” is