Apart from substantive conditions for patentability, states also have to include certain procedural requirements. One important requirement is the necessity to disclose the invention so as to allow a person skilled in the art to carry out the invention, which is one of the basic benefits that society gets in return for granting monopoly rights to the patent holder. Further, states are also allowed to introduce other procedural conditions for the grant of patents as well as for their maintenance 34. This is important in the context of attempts to protect traditional knowledge through IPR, as this provision may, for instance, provide scope for the introduction of a requirement to disclose the origin of the resources and the knowledge used in a particular patent application 35.
Notes and References
34 Article 62, TRIPS Agreement.
35 The question of the introduction of a direct or indirect requirement for patent applications to disclose the source of the knowledge or biological resources they have used in the claimed invention has been at the centre of significant debates in international fora. At present, international patent treaties do not include specific requirements to disclose the origin of the resources or knowledge from which the protected invention is derived. This was not the object of much debate before biotechnologists started using biological or genetic resources more frequently in products or processes for much patent protection is sought. The question of a disclosure requirement is important from the point of view of the relationship between the patent system and traditional knowledge. While prior art searches by patent offices may be enhanced by better access to available knowledge, a disclosure requirement would reduce the workload of patent offices by helping them to focus their searches more effectively. Further, disclosing the origin of knowledge or biological resources used in an invention provides an easier yardstick to judge whether an invention has benefited from the existence of traditional knowledge. While the disclosure of the geographical origin is as such novel, patent applications already include significant “disclosure” requirements that include not only the basic disclosure of the invention under all patent laws but also in the case of inventions involving microorganisms, the actual deposit of the microorganism itself (see, for example, Treaty on the International Recognition of the Deposit of Microorganisms for the Purposes of Patent Procedure, Budapest, 28 April 1977).