From the GRATK Treaty to Chinese Domestic Law: Adapting Patent Disclosure Rules to Protect Genetic Resources and Associated Traditional Knowledge

Abstract

With the advancement of biotechnology, genetic resources and their associated traditional knowledge have become increasingly valuable in supporting intellectual property (IP) innovation. However, disparities in technological development have led to conflicts of IP interests and benefit-sharing dilemmas between provider countries and user countries of such resources and knowledge. The WIPO Treaty on Intellectual Property, Genetic Resources and Associated Traditional Knowledge, concluded in 2024, establishes a fundamental framework for addressing IP disputes involving genetic resources and provides macro-level guidance for China to refine its IP rules in line with international trends. Regarding inventions that are based on genetic resources and associated traditional knowledge and for which patent protection is sought, the current patent law fails to align with the international treaty in terms of the subject matter, objects, and sanctions and remedial measures related to disclosure requirements. To further incentivize original innovation and technological diffusion in fields such as biomanufacturing, and to support China’s sustained participation in global biotechnology cooperation and governance, the following improvements are necessary. First, the information disclosure system under patent law should be enhanced by establishing dual disclosure requirements, explicitly indicating both the “source of genetic resources” and the “source of traditional knowledge” for inventions based on genetic resources and associated traditional knowledge. The current legal terminology, which distinguishes between “direct source” and “indirect source,” should be unified under the single term “source.” Second, remedies and sanctions for noncompliance with source disclosure obligations should be introduced, forming a “declaration–examination–remedy/sanction” institutional framework based on applicant declarations. Last, efforts should be made to develop an information system for genetic resources and associated traditional knowledge, thereby enabling both robust supervision and effective utilization of genetic information data.