TWN Info Service on WTO and Trade Issues (Jun05/7)

25 June 2005

WIPO members split on future work on patent law treaty

A meeting of the World Intellectual Property Organisation's standing committee on patents (SCP) was held on 1-2 June 2005. At the meeting, WIPO member states were unable to agree on how the future work of the committee should proceed.

The SCP in recent years has been negotiating a possible new treaty, the substantive patent law treaty (SPLT). There is a division of views, mainly on North/South lines, on what such a treaty should contain. These major differences surfaced again during this meeting.

Below is the first of 3 reports on the WIPO's SCP meeting.

With best wishes
Martin Khor


WIPO members split on future work on patent law treaty

By Martin Khor (TWN), Geneva, 1 June 2005 

Member states at a meeting at the World Intellectual Property Organisation (WIPO) were unable to agree on how to proceed with the future work programme of its patents committee, which is negotiating an international treaty on patents.

The negotiations at the WIPO's Standing Committee on the Law of Patents (SCP) for a substantive patent law treaty (SPLT) have been bogged down in recent months by disagreement on how to proceed, particularly on the scope of (or issues to be covered by) the treaty and the procedures and schedules to be followed.

The disagreements surfaced again on 1 June morning when the SCP began a two-day meeting.

At the start of discussions on the "work programme for the SCP" (which is the main agenda item), two papers with opposing views were presented.

A paper by the WIPO Secretariat invited the meeting to "consider and adopt" the recommendations and work programme for the SCP contained in a statement arising from "informal consultations" held in Casablanca on 16 February, organized by the WIPO Director-General with some countries.

The Casablanca statement proposed that only four issues (prior art, grace period, novelty and inventive step) be taken up by the SCP (and by implication in the SPLT). These are issues advocated by developed countries.

The Casablanca statement also proposed that two other issues (sufficiency of disclosure and genetic resources), which the developing countries have been advocating for within the SCP (and in the SPLT) be taken up instead in the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC).

Unlike the SCP, the IGC is not a norm-setting or treaty-making body (at least at this stage), and thus has a lower standing in that sense.

The implication of the Casablanca statement's proposed work programme is that only the four issues, which are being advocated by the developed countries, will be on the SCP agenda and within the scope of the SPLT, while other issues (including the two mentioned) would not be dealt with, or be dealt with at the IGC, which is not a treaty-making body.

A second paper by 14 developing countries known as the "Group of the Friends of Development" is opposed to this approach of separating the topics. The Group comprises Argentina, Brazil, Bolivia, Cuba, Dominican Republic, Ecuador, Egypt, Iran, Kenya, Peru, Sierra Leone, South Africa, Tanzania and Venezuela.

Responding to the Casablanca statement, the Group's paper indirectly criticized the Director-General for arranging the Casablanca meeting in a way that went beyond the mandate given to him by the WIPO General Assembly, which was only to organize consultations to fix the date of the next SCP meeting.

"The consultations must be focused on establishing a date for convening the SCP," said the Group's paper. "They cannot involve, modify or affect decisions adopted by the General Assembly (of WIPO), more so on matters of substance as those related to the controversial SPLT negotiations, or establish a work programme."

In contrast to the Casablanca proposal for the SCP to deal only with four issues, the Group's paper (in para 5) reaffirmed that the SCP "should consider and endorse the continuation of the negotiations of the SPLT on the basis of the draft treaty as a whole, including all the amendments that had been tabled by Member States to ensure a balanced treaty on the substantive harmonization of patent law that will address the concerns of all parties to the negotiations.

"To that end, the SPLT should include, inter alia, provisions of the technology transfer, on anti-competitive practices, on the safeguarding of public interest flexibilities, as well as specific clauses on principles and objectives."

The para added that member states of the SCP have the prerogative to decide on the convenience and opportunity of transmitting to the General Assembly any proposals presented to the SCP on issues under the Committee's competence.

The Group put forward para 5 of its paper as its recommendation for the future work programme for the SCP, as an alternative to the Casablanca proposal.

At the start of the discussion, the WIPO Secretariat explained that the WIPO General Assembly (at its meeting last October) could not reach consensus on proposals relating to the SCP and asked the Director-General to undertake consultations on dates for the next meeting. The DG held consultations in Casablanca, which recommended on how the work programme might be handled in future. The DG had adopted the recommendations as his own and was now transmitting it to the SCP, added the Secretariat.

Argentina, introducing the Group's paper, said that most of the Group's members had not been invited to the Casablanca meeting, so they decided to undertake their own consultations in Geneva. They were concerned about the turn of discussions lately especially in relation to the SPLT.

Argentina stressed that patent law is a very sensitive issue with cross-cutting implications for public policy. More stringent intellectual property standards may have serious implications on health, the environment and nutrition. These implications were brought to public attention through the WTO Doha Declaration on TRIPS and Public Health, which stressed that patents should not be in the way of public health goals.

Argentina said the developing countries had called for a WIPO development agenda, under which all WIPO subsidiary bodies must take into account development principles, and that norm setting in WIPO must respect and not run counter to the policy space of developing countries.

Norm setting should also safeguard the flexibilities in existing treaties. Regarding patents, flexibilities for determining policies at the pre- and post-grant levels must be safeguarded.

Argentina said that since 2000 views in the discussions on the SPLT had been divided. Some countries said there should be a new treaty to harmonise patent standards upwards, which would add new obligations on top of TRIPS. This embodied the view that norm setting in WIPO should bring IP standards upwards, irrespective of the countries' levels of development. The implications of this for development are serious.

Argentina added that the composition of invitees to the Casablanca meeting was not balanced, many countries were not there, organizations that are not part of WIPO were included (though many members were not), and individuals were invited in their personal capacity.

It also recalled that at the SCP meetings on SPLT, the developing countries have put forward proposals to safeguard their policy space, and wanted a balanced approach where all views are considered. However, the Casablanca-proposed work programme reflected the same proposal put forward by two states (referring to the US and Japan) at the WIPO General Assembly (last October) that were rejected, and these had also been rejected at the SCP meeting in May 2004. Argentina said it was surprising that the same proposal was put up again for a third time.

Opposing the proposal, Argentina said that it would fragment the SCP issues along two tracks, with one track taking up the four issues (prior art, grace period, novelty and inventive step) while leaving behind the issues (that developing countries had put forward) such as public interest flexibilities, technology transfer, competition and disclosure, and genetic resources.

Argentina remarked that developing countries were not demandeurs in the SPLT negotiations but had showed flexibility in tabling proposals. The Casablanca proposal would on the other hand lead to the loss of policy space for national policies. This did not involve a procedural issue only, as the issues singled out in Casablanca involved core aspects of the patent regime relating to patentability.

It was clear, said Argentina, that the negotiations could not leave aside the issues fundamental to the developing countries' interests. The Casablanca proposal however would not allow countries to put forward the proposals they want and this is against the principles of multilateralism. The negotiations should take into account the concerns of all.

Therefore, said Argentina, the Group cannot accept the Casablanca document as the basis for discussing future work. Negotiations should continue on a draft treaty as a whole, and the SCP should address all issues on an equal footing. A new treaty that does not take into account potential impacts and national sovereignty, and that does not contain provisions for flexibilities for the public interest would run counter to the WIPO development agenda.

This is thus a practical test for WIPO's commitment to development and the Development Agenda. Argentina urged all members to show that WIPO can deal with intellectual property in the context of development.

Italy (representing Group B of developed countries) said in a brief statement that harmonization of patents would benefit all stakeholders including civil society and rights holders. It supported the Casablanca document which it said represents a balanced work plan.

Singapore (on behalf of ASEAN countries) said the four issues mentioned in the Casablanca statement are important and that it was equally important that progress on work on disclosure in the IGC is made. There should be close interface of the work in the SCP and IGC. An efficient international patent system is important but it must be sensitive to development needs and provide safeguards and flexibilities. It stressed the importance of multilateralism in shaping the SCP work programme.

Egypt said it had maintained a clear position since the SPLT negotiations started that the work should be conducted in a balanced and inclusive manner. Egypt and the African Group have not welcomed an exclusive unbalanced approach in the SPLT negotiations when such an approach was raised previously at the SCP and the General Assembly.

Egypt said the Casablanca statement had repeated the same approach by proposing a future work programme set up on a discriminatory basis, through focusing on developed countries' issues while issues tabled by developing countries are put on a different track. Thus, the Casablanca work programme failed to address the legitimate concerns of a large number of countries and cannot constitute the basis for discussion on future work.

Egypt added that the SPLT negotiations should not be an exception to balanced, fair and transparent multilateral negotiations under the UN system. If the proponents of these negotiations have a genuine desire to take it forward, they should be keen on taking on board the developing countries' concerns equally, including their issues such as sufficiency of disclosure, genetic resources, and technology transfer.

Egypt called for a balanced outcome of all IP norm setting activities which effectively integrates the development dimension and "aspirations of our societies and enables the IP system to be responsive to public policy concerns."

Luxemburg (on behalf of the EU) supported the Group B statement in support of the Casablanca work programme.

Brazil, associating itself with Argentina and the Group of Friends of Development, said patent law harmonization has serious implications in many areas of public policy and thus could not be approached as a technical exercise. "We are all concerned with the potential substantive implications of the new treaty, and we don't see how we can disassociate the substantial outcome from the set-up of the environment where negotiations take place."

Brazil stressed that the substance and procedure intersect and that transparency and inclusiveness in the process will determine the degree of inclusiveness of the final package. Thus, negotiations should be held in a transparent, open member-driven manner, with all countries welcomed to participate.

It was thus concerned about the Casablanca outcome, just as many other countries had clarified that they could not agree to the work plan in the Casablanca statement.

On substance, Brazil stressed that the patent law provisions suggested in Casablanca focused on four aspects but did not include safeguards for public interest and this will compromise the policy space and flexibilities that were in TRIPS. "Our policy space has already been considerably narrowed by the legacy of the Uruguay Round," said Brazil, urging that members find a balanced work plan agreeable to developing countries.

Switzerland said that harmonization is key and should be pursued at WIPO to increase the quality of patents and avoid work duplication among patent offices. Full harmonization of patent laws is a broad task and since no progress had been made so far, "we need a new working method." It supported the Casablanca document as pragmatic and balanced. It was pragmatic as it asked the SCP to focus on four issues while the IGC would look at two other issues, and this would help achieve results in a short time.

The discussions were expected to continue Wednesday afternoon.