WIPO’s historic new Treaty to combat biopiracy has important implications for patent applicants

A new intellectual property Treaty aims to combat ‘biopiracy’ – cases in which genetic resources and the associated traditional knowledge of Indigenous Peoples are exploited by corporations who patent and commercialise them without consent or compensation.

Cases such as this are well-known in Australia and the other countries in which IPH Limited operates.

For example, the Kakadu plum has been used for thousands of years by Aboriginal peoples across northern Australia for food, medicine, and cultural practices. It is known for its exceptionally high vitamin C content and antioxidant properties, making it attractive to pharmaceutical, cosmetic, and food industries. In the late 2000s, cosmetic companies began patenting and marketing products using Kakadu plum extracts, drawing on Aboriginal knowledge of its medicinal qualities.

The Treaty – the WIPO Treaty on Intellectual Property, Genetic Resources and Associated Traditional Knowledge – was adopted by consensus by the member countries of the World Intellectual Property Organisation (WIPO) on May 24, 2024.

Unpacking the Treaty

The most significant change brought about by the Treaty is that it requires patent applicants to disclose the origin or source of genetic resources and associated traditional knowledge their inventions are based on.

This new transparency requirement will help reduce uncertainty about the validity of patents over bio-based inventions. This will lead to higher quality patents and greater trust in the patent system.

Once the Treaty comes into force, and within the countries that join it, the new disclosure obligation will be directly relevant for patent applicants as well as researchers, innovators, patent agents, in-house IP counsel and patent examiners.

More broadly, a stand-out feature of the Treaty is that it is the first intellectual property treaty for which developing countries and Indigenous Peoples were the proponents.

Further, language proposed by Indigenous Peoples’s representatives resonates throughout the text, and they will play a role in the Treaty’s implementation. In this way, the Treaty contributes to social justice and procedural equity.

The Treaty contributes to environmental justice too. It is the patent system’s first step towards contributing to the conservation of biodiversity and the equitable sharing of benefits arising from its use. Its new disclosure obligation will lead to greater transparency about the commercial use of a country’s biodiversity and what benefits are being created and for whom.

Developing countries and Indigenous Peoples have called for such a new patent disclosure requirement for over 25 years and they in particular have hailed its adoption.

Australia’s role in the Treaty’s adoption

Some developed countries too have expressed their support. Australia is one of the two developed countries to have signed the Treaty (the other being Switzerland).

The Honourable Penny Wong, Australia’s Foreign Affairs Minister, has rightly described the Treaty’s adoption as a ‘remarkable achievement’[1] and affirmed that ‘this landmark treaty will recognise Indigenous peoples’ contributions in the international intellectual property system for the first time.’[2]

Australians played a significant role in the 25 year journey to the adoption of the Treaty. Work on these issues first began at WIPO in the late 1990s, under the overall leadership at that time of Francis Gurry. Gurry was then my immediate supervisor and in 2008 he was elected as WIPO’s Director General. He is now a strategic advisor to IPH Limited. The WIPO program on these issues was led by the highly respected Tony Taubman for a few years until 2009 when he left WIPO for the WTO. The renowned Indigenous lawyer Terri Janke was one of my earliest inspirations in this area from the late 1990s, and she, Trish Adjei (Office of the Arts), Edwina Lewis (IP Australia) and Justin Mohamed, Australia’s Ambassador for First Nations People, were key members of the Australian delegation at the Diplomatic Conference that finalised and adopted the Treaty in May 2024. Other Indigenous Australians such as Bibi Barba, Alana Gall and Jo-Anne Driessens were leading members of the very impressive Indigenous Caucus at the Conference. Australia’s Ambassador in Geneva, James Baxter, was also instrumental in the success.

But two other Australians in particular stand out – first, Ian Goss, formerly of IP Australia, was from 2016 to early 2022 the chair of the WIPO committee that worked on these issues. It was he who courageously drafted a ‘Chair’s Text’ on which the Treaty is closely based. Second, Jodie McAlister, currently at IP Australia, who chaired the critical negotiations on the substance of the Treaty at the Diplomatic Conference. Target-driven, persistent and fair, McAlister never let up. It was largely thanks to her that her track of the negotiations got as far as they did.

The road ahead

While Australia, Switzerland and another 42 countries have signed the Treaty, this does not mean they have agreed yet to be bound by it. Countries become bound by treaties when they either ratify or accede to them.

This Treaty will come into force three months after 15 countries have either ratified or acceded to it.

So far, two countries have joined the Treaty (Malawi and Uganda).

The influence of the Treaty on the continuing negotiations in WIPO on the protection of traditional knowledge more broadly and traditional cultural expressions is at this stage unclear, yet expectations are high.

It is too soon to make predictions about the success of the Treaty – however that may be judged.

While the Treaty’s adoption last year was a momentous milestone in the evolution of the patent system, it is critical that the Treaty comes into force and that its paradigm-shifting political and symbolic importance be matched by its practical effectiveness.

Wend Wendland was for many years a Director of the World Intellectual Property Organisation (WIPO). He is now an independent expert working at the intersection of intellectual property and global issues such as biodiversity, cultural heritage, agriculture, health and Indigenous Peoples. He is also an Adjunct Professor at the Law Faculty, University of Cape Town, South Africa. He is contactable at [email protected] and his website is at https://wendwendland.com

The author’s book The Journey to the WIPO Treaty on Genetic Resources and Associated Traditional Knowledge: Policy, Process and People (Edward Elgar, November 2025) provides an insider’s account of the colourful and eventful journey to the Treaty’s adoption from the first proposal at WIPO for a new patent disclosure requirement in 1999 to the adoption of the Treaty 25 years later. It analyses the Treaty and its negotiating history, lifting the curtain on how its adoption by consensus was achieved, identifying the key individuals involved and providing insights into how the Treaty’s ultimate success may be judged and achieved. The book is now available on the Edward Elgar Publishing website. For a limited period, get a 35% discount by using the code WEND35 at checkout.

[1] Speech, Parliament House, August 15, 2025, https://www.foreignminister.gov.au/minister/penny-wong/speech/celebration-treaty-intellectual-property-genetic-resources-and-associated-traditional-knowledge, (accessed November 30, 2025).

[2] Press Release, May 27, 2025, https://www.foreignminister.gov.au/minister/penny-wong/media-release/historic-global-agreement-recognising-first-nations-cultural-knowledge (accessed November 30, 2025).