Intellectual Property, Genetic Resources and Associated Traditional Knowledge (GRATK)

Many technologies that humanity reaps benefits from daily, such as drought-resistant crops, pharmaceutical drugs, and sunglasses, originate in the traditional knowledge of Indigenous peoples. As colonialism has attempted to take water, land, and language from Indigenous people, intellectual property is also under threat. 

What is Indigenous intellectual property? 

Intellectual property (IP) encompasses the creations of the mind, including artworks, names or symbols used in commerce, and inventions. IP law regulates these intangible assets through mechanisms like patents and trademarks. For Indigenous peoples, IP includes traditional knowledge about the uses of products from the land and sea, such as medicinal foods and plants. IP law has failed to recognize and protect these forms of IP from threats like biopiracy—the theft of biological resources and traditional knowledge about their uses for commercial benefit without compensation to the community from which they originate. However, a new IP treaty could contribute to protecting Indigenous IP. 

Case example: International Cooperative Biodiversity Group (ICBG) 

To understand what threats to Indigenous IP look like in practice, one illustrative case study, the International Cooperative Biodiversity Group (ICBG), which occurred in the late 1990s, was a major bioprospecting project in Chiapas, Mexico. Bioprospecting is when researchers search for biological resources, such as plants, that have potential commercial value. The ICBG researchers, including project leaders Dr. Brent Berlin and Dr. Elois Ann Berlin, had three main goals from their work in Maya communities: “drug discovery, medical, ethnobiological, and biodiversity conservation, and sustained harvest and economic development” (Berlin & Berlin, 2004, p. 474). Regarding the drug discovery component of the project, Anderson (2002, p. 789) described the ICBG as a “proposal by anthropologists in the United States and Mexico to work with a small British pharmaceutical company to find medically useful drugs among the traditional medicines of the highland Maya communities of Chiapas.” Like many bioprospecting projects, the Maya ICBG project faced controversy regarding Indigenous peoples’ IP. At a conference at the University of Georgia in 2000, members of the Maya community approached the Center for World Indigenous Studies, concerned that their traditional knowledge was being taken without their permission (Korn, L., personal communication, April 14, 2025). They requested advice, during which CWIS proposed to the Maya representatives a moratorium on the project to provide additional time for the stakeholders to find common ground.

Feinholz-Klip, García-Barrios, and Cook (2009) argue that, despite the researchers’ good intentions for the Maya people to contribute to and benefit from the project, it ultimately had to be abandoned in 2001 due to gaps in the inclusion of local communities. The Berlins acknowledged that local autonomy for Maya communities was taken away (Berlin & Berlin, 2004), and Mayan community members ultimately stood to benefit very little from any commercial profits that might have emerged (Feinholz-Klip, García-Barrios and Cook, 2009). Ultimately, the Maya-ICBG project demonstrates the necessity of engagement in robust Free, Prior, and Informed Consent (FPIC) processes for projects involving collaboration between Indigenous communities and researchers outside the communities regarding IP and traditional knowledge. One such framework that can help promote FPIC for Indigenous IPs is the enactment of international treaties. 

Intellectual Property, Genetic Resources, and Associated Traditional Knowledge (The GRATK Treaty)

Recognizing the importance of international treaties, Indigenous knowledge holders and community members have actively resisted global biopiracy through international diplomacy. After over 20 years of strategic, resilient, and effective political engagement, Indigenous peoples have achieved a monumental first step toward protecting their IP from biopiracy and bioprospecting: The Genetic Resources and Associated Traditional Knowledge (GRATK) treaty, adopted by the World Intellectual Property Organization (WIPO) in May of 2024. The GRATK represents great promise, as a significant component of Indigenous IP involves traditional knowledge about applying genetic resources to medicine and agriculture. 

On Thursday, February 27th, 2025, Indigenous leaders and activists gathered for a webinar organized by Arizona State University to discuss the treaty. The webinar had two panels: The first provided an overview of the WIPO and the critical role of the Indigenous caucus in securing the final text of the GRATK. The second panel offered expert-informed talking points to use during the upcoming consultations between tribal nations and the United States Patent and Trademark Office (USPTO). 

The essential achievement of the GRATK treaty is a mandatory disclosure requirement. It requires patent applicants to disclose any Indigenous peoples from whom an invention derives traditional knowledge (TK) or genetic resources (GR). For example, suppose a Native nation created a seed variety and was aware of its exceptional health benefits. In that case, an agribusiness company trying to patent the seed variety would have to disclose that the seed (the genetic resource) and the knowledge about how to derive its health benefits (the traditional knowledge) came from that nation. This promotes transparency and ensures that the patented product is a novel invention, not just an attempt to commercialize traditional knowledge. 

Linda Benally of the Native American Bar Association argues that while this disclosure provision is a relatively lean protection, it is still a much-needed legal response to the issue of IP theft in Native communities. Benally argues that the GRATK treaty protects ancestral knowledge through the avenue of IP law, and it can protect knowledge of how to use plants as medicines from theft by the pharmaceutical industry. Private sector patents of ancestral healing knowledge are not only harmful because they steal without compensation or recognition. They also open the door for Indigenous peoples to face legal repercussions from the patent holder for practicing their own cultures. Beyond biopiracy issues, there are wider benefits to the GRATK treaty as well: it adds to the legal frameworks bolstering the UN Declaration on the Rights of Indigenous Peoples–including Article 31, which specifically refers to IP—and the Convention on Biological Diversity. It supports patent originality, it helps promote free, prior, and informed consent, and it can help foster fair collaboration between traditional knowledge holders and scientific researchers. 

Getting the final text of the GRATK treaty to protect Indigenous IP took decades of effort from activists. Native leaders at the webinar repeatedly emphasized the crucial role of over 20 years of work from the Indigenous caucus at the WIPO diplomatic conferences in Geneva, Switzerland. The Indigenous caucus, an observer delegation composed of Indigenous peoples from the 7 regions of the world, is profoundly influential in WIPO proceedings. Keone Nakoa, a Native Hawaiian member of the United States delegation, highlighted how member states often turn to the caucus’s expertise to see if various provisions make sense from an Indigenous perspective. Nakoa stated that Indigenous participation at the WIPO “absolutely [makes] a difference. You can see it in the language” of the treaty, crafted with the dual expertise of Indigenous diplomats in international law and cultural issues. 

However, as Dr. June Lorenzo, a Laguna Pueblo/Navajo (Diné) scholar-activist, reminds us, the Indigenous caucus was not always in this position of influence. Over the past two decades of negotiations, the caucus has had to walk out of sessions because state delegations were negotiating in such bad faith. Through the GRATK treaty and two additional treaties currently undergoing negotiations (one on traditional knowledge and another on traditional cultural expressions), the caucus demonstrated deeply skilled political engagement that enabled it to overcome the many barriers standing in the way of a treaty that can adequately protect Indigenous IP. 

The adoption of the GRATK treaty by the WIPO is the first step. Member states must still individually sign and ratify the treaty. Ahead of the United States’ decision on whether to ratify, the USPTO is set to consult with tribal nations. The USPTO will hold a hybrid hearing on April 29th, 2025, from 9 am–12 pm Eastern Standard Time (EST), and members of tribal nations and their representatives must submit requests for oral testimony by April 22nd, 2025. Chairman J. Garret Renville of the Coalition of Large Tribes brought forward important, historically informed concerns about the treaty, noting that the US government has often failed to uphold its end of treaty obligations in the past. However, US law already has some tools to promote US support for the treaty. Heidi Todacheene, whose great-grandfather signed one of the first Navajo treaties with the US and was recently the only practicing Indian law attorney in the US WIPO delegation, highlighted the complex nature of the different US agencies involved in the treaty decision.

While Department of Commerce IP attorneys are mandated to uphold “free market” principles, Department of the Interior attorneys are mandated to uphold Indian law. These internal tensions in the US government could shape the decision to ratify the GRATK treaty. Todacheene notes the importance of emphasizing the United States’ cultural protection laws, which, like Italy’s, strictly prohibit the commercialization of cultural treasures. These laws include reserved rights to tribal nations for all IP not explicitly ceded to the US, underpinning the US obligation to ratify the treaty. Todacheene argues that if the U.S. fails to do so, it is engaging in a legal fallacy by ignoring an entire body of U.S. law (Indian law) in favor of promoting ‘free market’ principles.

Because input from tribal nations to the USPTO will be crucial in shaping the federal government’s decision, it is important to highlight a few talking points that experts have recommended that nations bring up in consultations. IP attorney Chante Westmoreland emphasized the importance of reminding the USPTO that it has an enforceable legal duty to uphold the US trust obligation to Native tribes and nations–the USPTO is not only there to serve industry stakeholders, but it must also respect the human rights aspects of IP law as well. Secondly, it is critical to reiterate the requirements of consultation and consent: the USPTO must provide enough time for tribal governments to seek advice from their people and legal advisors. Thirdly, the mandatory disclosure requirement is the bare minimum: there is no way right now for Indigenous peoples to track infringements of their IP, but this treaty would help. Even though many of the 10 questions provided by the USPTO for consultation are technical and intimidating, tribal nations need to participate in the process to demonstrate that this is an issue of importance for Indigenous communities. Many experts on the panel reiterated that even providing a specific story or two of how the theft of IP has impacted your people can be helpful for the USPTO to see. 

Biopiracy remains a critical issue for Indigenous communities worldwide. Adopting the GRATK treaty by the WIPO, which was only possible through years of effort by Indigenous diplomats, is a monumental first step towards protecting traditional knowledge and genetic resources. However, major work still lies ahead: the US and almost every other state must still become a party to the treaty, and the treaty itself must be implemented. The US has a history of failing to adopt resolutions and treaties; for example, waiting three years to adopt UNDRIP. Two other WIPO treaties on traditional knowledge and traditional cultural expressions, still under negotiation, must also be adopted. The next step is for tribal nations to consult with the USPTO, where even participating in consultation is an important form of political pressure. While these next steps remain, Indigenous peoples and their allies will continue to push for the protection of the traditional knowledge that is core to the intellectual heritage of humanity. 

References

Anderson, E. (2002). On Maya medicine and the biomedical gaze. Current Anthropology, 43(5), 789–793. https://doi.org/10.1086/344371

Berlin, B., & Berlin, E. (2004). Community autonomy and the Maya ICBG project in Chiapas, Mexico: How a bioprospecting project that should have succeeded failed. Human Organization, 63(4), 472–486. https://doi.org/10.17730/humo.63.4.xp2dpuh204b0h61b

Berrod, E. (2024). WIPO member states adopt new treaty on intellectual property, genetic resources and associated traditional knowledge [Photograph]. Wikimedia Commons. CC-BY-NC.

Feinholz-Klip, D., García-Barrios, L., & Cook, J. (2009). The limitations of good intent: Problems of representation and informed consent in the Maya ICBG project in Chiapas, Mexico. In R. Wynberg, D. Schroeder, & R. Chennells (Eds.), Indigenous peoples, consent, and benefit sharing (pp. 315–331). Springer Nature.