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On Tuesday, the United States Patent and Trademark Office (USPTO) will begin its first-ever tribal consultation on developing policy to protect genetic resources, traditional knowledge and traditional cultural expressions of Indigenous peoples. 

Over the next few weeks, the USPTO will host online consultation sessions on Jan. 16-17 for tribal leaders from federally recognized tribes, with additional sessions (Jan. 19, 23) for state- or non-recognized tribes, Native Hawaiians, and inter-tribal organizations. Written comments can also be submitted by Feb. 23, per a Federal Register Notice.  

The consultation will help ensure that Native Americans have a seat at the table as the federal government develops its official positions in advance of the World Intellectual Property Organization (WIPO) committee meetings in Switzerland later this year. There, representatives from hundreds of countries from around the world will gather to discuss and negotiate international policy focused on protecting the resources of Indigenous peoples. 

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Susan Anthony, USPTO tribal affairs liaison and senior trademark attorney, wants to make sure tribes and Native Hawaiians know about the tribal consultations and are in a position to make the most of the sessions and the comment period.    

“We (haven’t) ever done one before. This is our first-ever,” she told Tribal Business News. “This is very exciting to me, because this is something that I very much have wanted to do, but I also want to ensure that the tribes and Native Hawaiians have the tools they need (and) the resources they need in order to be able to provide meaningful tribal input.”

A 20-year veteran at the USPTO after working in private practice, Anthony spoke with Tribal Business News in advance of the first consultation session. The conversation has been edited for clarity and brevity.   

So what is the World Intellectual Property Organization? 

The WIPO, or World Intellectual Property Organization, is an organization that focuses on intellectual property. Their headquarters are based in Geneva, Switzerland, they do a considerable amount of work across a full range of intellectual property. But the particular work that we're discussing today is in one particular committee, called The Intergovernmental Committee (IGC) on intellectual property and genetic resources, traditional knowledge and folklore. 

Now, let me be quick to say that the word folklore is bothersome to many including myself. The term used today far more commonly is traditional cultural expressions.

Later this year, the U.S. will participate in the WIPO activities on protecting Indigenous IP. Tell us what you’ll be talking about and what’s going to happen. 

We have three documents on the table. One involves genetic resources. One involves traditional knowledge … and one involves traditional cultural expressions. And it's important to think in terms of these three documents, because each one of them is subject to this text-based negotiation — which means you're looking at the text, and you're discussing it and you're saying, “This has to be changed. This can't go in, this has to go in.”

So the WIPO committee is really about negotiating and creating international law — or legal instruments —  to protect genetic resources, traditional knowledge and traditional cultural expressions. Is that right?

I suppose, writ large. But international law may be a bit misleading because of the way that a treaty would work. If the parties agree to a treaty on any of these documents, it would be up to each country to determine whether they wish to accede to the treaty. And in determining whether to accede to a treaty, a country has to figure out what laws currently in place would need to be changed in order for the country to accede to the treaty. Or what laws would need to be passed in order to accede to the treaty. 

So the end result of this could be a treaty? Treaties have traditionally not been very kind to Indigenous people, especially in the U.S. 

The WIPO IGC could agree to a treaty. That's what the diplomatic conference about genetic resources and associated traditional knowledge is all about. But the USPTO, on behalf of the US government, is also very interested in looking at soft law opportunities.

What are soft laws?  Can you give me a specific example? 

I think there are examples of soft law that are limited only by one's creativity, if you will, but it could be (things such as) joint recommendations, best practices, toolkits, and the like.

In the back of my mind, I do have some ideas that I think would be possibilities for soft law. I don't want to say a resolution, because these are ongoing issues that will be under discussion long after I have walked on. But I see the possibilities for doing some things differently — better and differently — that don't necessarily involve the passage of less legislation or the passage of amended legislation. So I do hope that people will think not only in terms of “Well, there ought to be a law,” but that people will also think maybe there are some (other) things that we could do.

All of this work is about protecting genetic resources, traditional knowledge and traditional cultural expressions. I guess I should be asking: Who are we protecting them from? 

I just had a very relevant conversation with an old friend on this very subject not too long ago. We are protecting them as intellectual property and protecting them against intellectual property. 

Protecting against intellectual property? What do you mean?  

A tribal member or a Native Hawaiian has to walk in two worlds. And so while they are concerned about protecting their cultural heritage — and rightly so — they also need to understand what's involved in western IP and how they can protect their intellectual property.

Fair point. I know WIPO is the catalyst for this upcoming consultation, but I'm guessing what you discover during these sessions could also flow into other federal legislation and rulemaking designed to protect Native art and culture in the United States. 

I believe so. I know that a number of other agencies and a number of other organizations are watching the developments here very closely. It's hard to say what ultimately may come out of this.

I am hoping that this is just the start of something bigger. I'm a very hopeful person. And I think that … we will be having informal consultations and listening sessions going forward, probably on this subject matter itself because the WIPO IGC has considerably more work to be done. 

A formal tribal consultation, as you know, is a very formal process, and may in some ways be an impediment to more honest and fulsome discourse, I don't know. And that's why I want to remain flexible … The (agency’s) Tribal Consultation Policy does provide that a tribe can request a consultation. So if somebody says, “Hey, I need more time, I need to sit down and talk with the USPTO,” then they should do so. I want to emphasize … my line is open, my email is open, my telephone is open. I give people my cell phone number and say, truly, it's 24/7. 

This is important enough to me that I am happy to make myself available at any time to help people who say, “This is just a bit over my head, and I need a little bit of hand holding. I need to ask you some questions.”