AIPLA Comments to the USPTO on the WIPO GRTK Treaty

Arlington, VA. March 18, 2025 –The American Intellectual Property Law Association (AIPLA) submitted comments on the World Intellectual Property Organization Treaty on Intellectual Property, Genetic Resources and Associated Traditional Knowledge. 

AIPLA expressed concern that the WIPO GRTK Treaty would not benefit the U.S. and is incompatible with the values of our intellectual property system and therefore, AIPLA counseled against becoming a party to the Treaty. 

AIPLA noted the WIPO GRTK Treaty creates novel requirements for patenting that are unclear, diminish the value of patents, reduce incentives to innovate, and do not share the goals of the patent system. AIPLA pointed out that a patent is a critical bargain between an inventor and society: society pays the inventor in exclusivity, and the inventor repays society by adequately disclosing the invention. Because disclosure (or more precisely the loss of nondisclosure) is the cost to the inventor for the patent, the quantity and nature of the disclosure dictate the magnitude of the cost. The net value of the patent to the inventor is the value of the exclusivity less the value of nondisclosure. By increasing the burden of disclosure, the net value of the patent is reduced. As the function of a patent is to incentivize innovation and the disclosure of innovation, it is foreseeable that implementation of the WIPO GRTK Treaty will reduce incentives to innovate and disclose.  

AIPLA also pointed out that it is also clear that the goal of the WIPO GRTK Treaty is something other than providing incentives to innovate. This presents a problem under U.S. law. The Patent Act falls under Congress’s power “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” Tacking a provision onto the Patent Act that has no clear relationship with promoting the progress of science and technology arguably falls outside of Congress’s “patent power.” Such a law would need to be drafted so as to invoke another congressional power.  

AIPLA provided a number of detailed concerns and suggestions for the Office's consideration.