TWN Info Service on Health Issues (Oct13/01)
Dear friends and colleagues,
We are pleased to share with you a significant development at the ongoing General Assemblies of the World Intellectual Property Organization, taking place in Geneva from 23 September to 2 October.
On 26 September the United States expressed its objections to enhancing WIPO's work on patent flexibilities, including on exceptions and limitations to patent rights. This is despite an agreed work program that resulted from intensive consultations at the 19th session of the WIPO Standing Committee on the Law of Patents in February 2013. Developing countries had earlier submitted proposals to deepen analysis on patent flexibilities, which they consider to be central to development concerns.
Below is a report from Third World Network.
WIPO: US seeks to limit work on patent flexibilities
Geneva, 2 Oct (Alexandra Bhattacharya) – The United States does not support a focus by the World Intellectual Property Organization (WIPO) on patent flexibilities, an issue that developing countries consider to be central to their development concerns.
This divergence emerged at the current session of the WIPO General Assemblies taking place in Geneva from 23 September to 2 October.
WIPO’s work on patent flexibilities, including on exceptions and limitations to patent rights, has long been encouraged by developing countries participating in WIPO’s Standing Committee on the Law of Patents (SCP). In recent years proposals have been submitted by the Development Agenda Group of several developing countries, the Africa Group and Brazil to deepen analysis on patent flexibilities, which they consider to be central to development concerns. A work program had been agreed on at the last session of the SCP in February 2013 after intense consultations on the following topics: (i) Exceptions and Limitations to Patent Rights; (ii) Quality of Patents, including Opposition Systems; (iii) Patents and Health; (iv) Confidentiality of Communications between Clients and their Patent Advisors; and (v) Transfer of Technology.
However, not all WIPO delegations were agreeable to enhancing of WIPO’s work on patent flexibilities. In a lengthy intervention at the Assemblies on 26 September on the agenda item on the SCP, the US expressed its intention to limit WIPO’s work on patent flexibilities.
Its sentiment was not shared by developing countries that intervened on the agenda item. Instead they called for more work to be undertaken on the topics of exceptions and limitations to patent rights, the relationship between patents and health, and the improvement of patent quality.
The US in its intervention said that it "did not support focusing on exceptions and limitations to patents rights without also having a strong component focused on substantive patent rights". It further welcomed a further discussion on the quality of patents particularly on work sharing programs amongst intellectual property (IP) offices, which result in “greater quality and efficiency”.
[The US policy on IP is well known, striving for maximalist IP protection in bilateral and regional trade agreements as well as bilateral investment agreements, way beyond the requirements of the World Trade Organization’s agreement on Trade-related Aspects of Intellectual Property Rights (TRIPS). It also asserts considerable unilateral pressure on developing countries for the same end.]
On the topic of patents and health, the US said it did not believe that flexibilities were the exclusive solution to the public health problems facing developing countries and least developed countries, adding that a combination of novel, voluntary licensing arrangements such as patent pools, advanced market commitments in global funding and innovative capacity building were a more effective solution. It also said that it did not support any normative work in this area and opposed the production of recommendations by Member States or the Secretariat. In stressing the importance of a strong IP regime, the US instead supported an information sharing session with regard to health related flexibilities.
[In 2011, the Development Agenda Group and Africa Group submitted a paper containing a detailed work program on the topic of patents and health. See SCP/16/7.]
The US also stressed that it opposed the development of a technical assistance module on TRIPS flexibilities, stating that the World Trade Organization had the appropriate mandate to undertake this work.
With regard to the work to be carried out by the Secretariat on the identified exceptions and limitations for the next session of the SCP, the US cautioned that it should not involve any evaluation or analysis by the Secretariat. On the issue of transfer of technology, it said that, “any work must address IPR incentives as well as any potential impediments” adding that it is not acceptable to carry out work on "alleged impediments".
Belgium speaking on behalf of Group B (composed of developed countries) also stressed on discussing work-sharing programs amongst patent offices and the use of external information for search and examination as a means of improving the quality of patents. It emphasized the issue of Confidentiality of Communications between Clients and their Patent Advisors.
Lithuania, on behalf of the European Union signaled the Group's commitment to all topics of the SCP work program but placed emphasis on the quality of patents and opposition systems as well as client-patent attorney privilege.
India in its intervention said that the quality of examination of patent applications needed to improve substantially so as not to create great social costs from granting patents to insignificant improvements which only lead to litigation and create barriers for technology dissemination.
On Group B including the US’s focus on work sharing as a means to improve quality of patents, India stressed that work sharing programs cannot be a panacea to address backlog and improve the quality of patents. Work sharing can adversely affect the capacity of offices in developing countries to assess applications and this should not be an area for norm setting in the future, India added.
India also called for a study on the various impediments in licensing agreements relating to the transfer of technology so that appropriate steps could be taken to address this. It also voiced support for the information sharing session on health related patent flexibilities during the next session of the SCP.
Brazil at the outset said that it was satisfied with the development of work in the SCP. It pointed to studies, including by WIPO, that shows in the last 50 years there has been a surge in patent filings in industrial property offices all over the world, adding that such a surge poses a challenge for industrial property offices such as Brazil’s National Industrial Property Institute that undertake substantive patent examinations, particularly with respect to human resources and technological infrastructure in order to ensure a high quality of patents and keeping the backlog at a tolerable level.
Brazil emphasized that patents of high quality were key to reaching the objectives of patent protection, that is, the contribution to technological innovation and transfer and dissemination of technology to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare and a balance of rights and obligations. In this context, the first step in the discussion could be the exchange of information regarding access to patent databases in line with the shared objective of continuously raising patent quality. Brazil added that the access to search information was helpful in enabling examiners to carry out search and examination with adequate quality as long as the flexibility in access and use of the databases is maintained. It pointed out that some countries face obstacles in accessing these databases and it would be useful to explore the reasons behind this.
Brazil also underscored the importance of exceptions and limitations for an adequate and balanced patent system. It added that flexible policy space was necessary in order to allow Member States to develop and adapt a set of exceptions and limitations adequate for their realities, emphasizing on the need to investigate which exceptions and limitations were more effective to address development concerns. It further highlighted that the use of exceptions and limitations in IP systems was a core value of the Development Agenda.
[During the 19th session of the SCP Brazil submitted a proposal on exceptions and limitations in which it suggested that the WIPO secretariat “prepare an analysis of Exceptions and Limitations which are most commonly used by Member States” and “a one-day seminar to be held at the next session of the SCP.” The seminar would include a presentation by the secretariat on the analysis, a presentation by the chief economist on the effectiveness of these flexibilities, and presentations from member states on their experiences using exceptions and limitations. Brazil is also a member of the Development Agenda Group.]
It also expressed support for the DAG and African Group proposal on Patents and Health. It stressed that providing access to essential medicines at affordable prices was a goal for all countries and a necessary step for the achievement of the UN Millennium Development Goals. It referred to the (WTO) Doha Declaration on TRIPS Agreement and Public Health, stressing the understanding that health technologies were different from other products and should not be treated as a commodity.
El Salvador and Guatemala also reiterated their interest in the discussion on exceptions and limitations and the improvement of the quality of patents.
General Assembly notes SCP decisions
The WIPO General Assembly was invited to note the contents of document WO/GA/43/16, which contains the decisions taken by the last SCP session (19th session held on 25-28 February 2013). It also describes the contribution of the SCP to the implementation of the Development Agenda Recommendations. (The Development Agenda was adopted by the Assembly in 2007 to ensure that development considerations form an integral part of the organisation's work.)
At the 19th session after intensive consultations, a work program was agreed for the following topics: (i) Exceptions and Limitations to Patent Rights; (ii) Quality of Patents, including Opposition Systems; (iii) Patents and Health; (iv) Confidentiality of Communications between Clients and their Patent Advisors; and (v) Transfer of Technology on the understanding that 20th SCP session would be confined to “fact-finding and not lead to harmonization at this stage”. Details of the work program are below.
-- On “exceptions and limitations to patent rights”, the SCP agreed on the following:
(i) The Secretariat will prepare a document, based on input received from Member States, on how the following five exceptions and limitations are implemented in Member States, without evaluating the effectiveness of those exceptions and limitations: private and/or non-commercial use; experimental use and/or scientific research; preparation of medicines; prior use; use of articles on foreign vessels, aircrafts and land vehicles. The document should also cover practical challenges encountered by Member States in implementing them.
(ii) A 1/2 day seminar as proposed in document SCP/19/6 will be organized during SCP/20 on the above five exceptions or limitations.
(iii) The Secretariat will prepare, for SCP/21, a document, based on input received from Member States, on how the remaining exceptions and limitations contained in document SCP/18/3 are implemented in Member States, without evaluating the effectiveness of those exceptions and limitations: acts for obtaining regulatory approval from authorities; exhaustion of patent rights; compulsory licensing and/or government use; exceptions and limitations relating to farmers’ and/or breeders’ use of patented inventions. A 1/2 day seminar as proposed in document SCP/19/6 will be organized during SCP/21 on the remaining exceptions and limitations as referred to above.
-- On “quality of patents, including opposition systems”, the SCP agreed that, based on information received from Member States, the Secretariat would prepare a compilation of work sharing programs among patent offices and use of external information for search and examination.
-- On “patents and health”, it was decided that a sharing session on countries’ use of health-related patent flexibilities would be organized during SCP/21. It was generally agreed that the Secretariat would prepare a summary document of that event during that same session of the SCP.
-- With regard to “confidentiality of communications between clients and their patent advisors”, the SCP agreed that the Secretariat would prepare a document compiling laws and practices on, and summarizing information on experiences relating to, the issue of confidentiality of communications between clients and their patent advisors received from Member States. In addition, the Secretariat would make a presentation on that topic at SCP/20.
-- Concerning “transfer of technology”, the Secretariat will revise document SCP/18/8 by adding further practical examples and experiences on patent-related incentives and impediments to transfer of technology on the basis of inputs received from members and observers of the SCP, taking into account the dimension of absorptive capacity in technology transfer.
It was also agreed that the information concerning certain aspects of national/regional patent laws would be updated, based on the comments received from Member States.
The 20th session of the SCP will be held in Geneva on 9-13 December 2013.