Imagine an organisation obtaining patent protection over a formulation derived from Kakadu plum, while the First Nations community whose Knowledge guided the discovery receives neither recognition nor benefit. That scenario — commonly labelled ‘biopiracy’ — has animated more than two decades of negotiations at the World Intellectual Property Organization (WIPO). Those negotiations culminated on 24 May 2024, when over 150 Member States adopted the Treaty on Intellectual Property, Genetic Resources and Associated Traditional Knowledge (Treaty).
As 24 May 2025 approaches, the Treaty will reach its first anniversary, prompting governments, industry and Indigenous communities alike to take stock of its impact and the work that still lies ahead.
The recent re-election of the Albanese Labor Government in Australia provides continuity for domestic implementation efforts. The Government’s stated commitment to ‘Closing the Gap’ and to First Nations-led policy making places the Treaty squarely within the current legislative agenda. Yet, significant questions remain — most notably how Australia will give effect to the Treaty’s ‘fraudulent intent’ and ‘fraudulent conduct’ provisions, given the demanding procedural requirements of Australian courts relating to allegations of fraud.
What the Treaty requires
Genetic resources are contained in, for example, medicinal plants, agricultural crops, and animal breeds. While genetic resources cannot be directly protected, products and processes developed using such resources can, most often through a patent.
Some genetic resources are also associated with traditional knowledge through their use and conservation by Indigenous Peoples as well as local communities, often over generations. This knowledge is sometimes used in scientific research and, as such, may contribute to the development of a patented invention.
For contracting parties, the centrepiece of the Treaty is a mandatory disclosure obligation in patent applications that:
- identifies any genetic resources incorporated in, or relevant to, the claimed invention
- specifies the country of origin or, where that is unknown, the source of those genetic resources and
- where the invention is based on Traditional Knowledge associated with genetic resources, names the Indigenous Peoples or local community that provided that Knowledge (or, failing that, the source from which the Knowledge was obtained).
The Treaty clarifies that an invention is ‘based on’ genetic resources or Traditional Knowledge only where those resources or that Knowledge were necessary for the claimed invention. Routine background information that bears no causal relationship to the inventive concept will not trigger disclosure.
Sanctions, remedies, and the fraud exception
A contracting party must introduce ‘appropriate, effective and proportionate’ legal and administrative measures to secure compliance. However, Article 5.3 stipulates that patent rights cannot be revoked, invalidated or rendered unenforceable solely because the applicant failed to meet the disclosure obligation. Instead, Article 5.4 empowers States to impose post-grant sanctions or remedies where the failure to disclose involved ‘fraudulent intent’ or ‘fraudulent conduct’.
That carve-out is pivotal because it seeks to balance legal certainty for patentees with accountability for wilful wrongdoing. Under Australian law, fraud is a serious allegation that must be distinctly pleaded and proved on cogent evidence. Courts require particularised pleadings demonstrating the elements of fraud — including knowledge of falsity and an intention to deceive — not mere negligence or oversight. How Canberra chooses to transpose the Treaty’s wording will therefore determine the practical utility of the fraud exception:
- Will legislation define ‘fraudulent intent’ consistently with equitable or statutory concepts of fraud already familiar to Australian courts?
- Must an opponent plead common-law deceit, or will Parliament create a bespoke statutory ground tailored to patent disclosure?
- Will the approach align with existing provisions in the Patents Act 1990 (Cth) concerning ‘fraud , false suggestion or misrepresentation’, thereby enabling the Federal Court to draw on existing jurisprudence?
Information systems and the role of Indigenous Communities
The Treaty encourages — but does not mandate — contracting parties to develop publicly accessible databases of genetic resources and Traditional Knowledge. Designing such systems in partnership with First Nations custodians will be critical to ensure Cultural Intellectual Property is documented, accessed, and used in ways that respect cultural integrity. The Australian Government has already signalled a preference for First Nations-led consultation in adjacent policy work on the misuse of Indigenous artworks, suggesting a similar approach is likely here.
Australia’s next steps
- Ratification: Australia must deposit its instrument of ratification. The Treaty will enter into force three months after at least fifteen countries have done so; several have already indicated their readiness.
- Legislative amendments: Amendments to the Patents Act 1990 (Cth) and the Patents Regulations 1991 (Cth) will be required to introduce the disclosure obligation, specify penalties, and delineate any fraud-based exceptions.
- Capacity building: IP Australia will need new procedures, examiner guidelines, and training modules to handle disclosure statements, verify provenance, and consult with Traditional Knowledge databases.
- Stakeholder engagement: Continuous dialogue with Indigenous communities, research institutions and industry will be vital to strike the right balance between incentives to innovation and cultural integrity.
Looking ahead to the first anniversary
As the first anniversary approaches, we ask:
- whether Australia will soon ratify the Treaty and table implementing legislation
- how the ‘fraudulent intent’ and ‘fraudulent conduct’ provisions have been transposed into Australian law
- what resources will be allocated to develop Traditional Knowledge databases and
- whether early-adopter countries are experiencing the disclosure system in practice.
As at 5 March 2025, only Malawi had ratified the Treaty.
For now, the Treaty represents a landmark recognition — 25 years in the making — of the vital contributions Indigenous Peoples make to global innovation. However, the coming year will be telling.
