TWN Info Service on WTO and Trade Issues (Jun05/8)
25 June 2005

Divisions continue at WIPO patents committee meeting

Below is the second report on the meeting of the WIPO Standing Committee on Patents, held on 1-2 June 2005.

With best wishes
Martin Khor


Divisions continue at WIPO patents committee meeting
By Sangeeta Shashikant, Third World Network, 2 June 2005

Divisions, mainly along North-South lines, continued to be shown on 1 June afternoon at the World Intellectual Property Organisation (WIPO), as members discussed how to proceed with work on a proposed new treaty involving the harmonization of patent laws.

The meeting of the WIPO Standing Committee on the Law of Patents (SCP) had started on Wednesday morning with the presentation of two opposing papers. The first paper, by the Secretariat, proposed the adoption of recommendations from a February "informal consultation" organized by WIPO's Director-General, Dr. Kamil Idris, in Casablanca, that called for the SCP to deal only with four issues in negotiations for a new substantive patent law treaty (SPLT).

The four issues, strongly advocated by developed countries, are prior art, grace period, novelty and inventive step. The Casablanca meeting and the Secretariat proposals before the SCP have sidelined other issues proposed by developing countries. Two of these - disclosure and genetic resources - are proposed to be dealt with by another committee, the Intergovernmental Committee (IGC) dealing with genetic resources and traditional knowledge. This IGC does not have treaty-making powers, unlike the SCP.

The second paper, presented by Argentina on behalf of the Group of Friends of Development (comprising 14 developing countries) rejected the Casablanca approach, which it criticised for fragmenting the issues. Instead, the second paper proposed that all the issues brought up in the SPLT negotiations be dealt with as a whole in order to achieve balance.

These issues would include the topics advocated by developing countries, such as public interest flexibilities, national policy space, technology transfer, pro-competition principles, as well as disclosure and genetic resources. The Group had also criticised the Casablanca process for not including most members. The Group's paper said the WIPO Director-General had gone beyond the mandate given to him, namely to consult only on the dates of the next SCP meeting.

In the discussions on Wednesday morning, strong differences of view emerged as members showed their preference for one or the other proposal, mainly along North-South lines.

In the afternoon discussion, these divisions continued to be voiced. One significant proposal was that a study be carried out on the impact of the SPLT draft on the development efforts of developing countries, before proceeding further with the SPLT negotiations. This was initially put forward by Pakistan and supported by several other developing countries.

South Africa said it aligned itself with the Friends of Development Group statement. It underscored that the DG had been mandated only to consult on fixing the date of the next SCP meeting and thus his consultation should not have been on substantive issues. South Africa said that it did not agree with the work programme proposed in Casablanca. Instead, the SPLT negotiations should include all proposed amendments to ensure balance.

The SPLT should focus on safeguarding public interest flexibilities and not run counter to what it is in TRIPS, South Africa added. During the SPLT negotiations, important proposals were made on patents - on general exceptions, genetic resources, disclosure and public health. The SPLT negotiations should be based on mutual respect for all priorities so that the outcome will enjoy legitimacy.

South Africa stressed that harmonized standards would close the policy space enjoyed by developing countries. If they have to raise IPR standards to the level of developed countries' standards, they will lose their flexibilities under TRIPS. South Africa could not afford to lose the opportunity to make use of these flexibilities.

It also stressed that the Casablanca statement contains proposals made during the General Assembly, which had been rejected. If adopted, it would fragment the negotiations onto different tracks and leave aside matters of interest to developing countries. Negotiations should proceed on the basis of a single undertaking and not in a fragmented manner, South Africa insisted.

Morocco said it had the honour to host the Casablanca meeting and ensured its constructive approach. It reaffirmed the importance of a multilateral framework and also reaffirmed interest in harmonizing, that would result in a less costly patent system, reduction of work load and improving quality of patents, thus promoting development. It also pointed to the importance of having a development aspect of Intellectual Property. Sudan supported the Morocco statement.

India associated itself with the Group of Friends of Development statement. It said patent law has cross cutting implications including on the environment and public health, thus it is important for developing countries to understand the full implications of the SPLT.

India said that the Director-General had been asked to undertake informal consultation on the dates for the next SCP meeting, and India had expected an inclusive and transparent process. The mandate to the DG did not include the substantive parts and timeframe. The participation at the informal meeting (at Casablanca) was limited and the vast majority of countries were not invited. The consultations should be inclusive, transparent and open ended, India added.

In so far as the outcome of Casablanca is concerned, the decoupling of issues and selecting some issues for fast tracking is not acceptable, it said.

Pakistan said the challenge is to agree on IP norms in response to a fast changing global environment while ensuring that these norms fully take into account the developmental needs of the membership. The slow progress on the draft SPLT led to a proposal by some for an "early harvest" approach by restricting the elements to be negotiated in a first phase, to four and possibly two additional issues.

Pakistan said this proposal has been accompanied by broad and unfortunate hints that if there is no quick movement on these issues, then some delegations will pursue these issues outside WIPO. This has been countered by the position that negotiations should continue on the whole range of issues that are on the table in order to ensure that the concerns of all Member States are addressed and that there is a balanced outcome.

Pakistan added that there is a growing feeling of unease with the possible developmental implications of the many complex provisions of the draft SPLT and hence an increasing reluctance to quicken the process by picking and choosing elements for an "early harvest".

There is further a sentiment that if some countries wish to proceed with this exercise elsewhere outside WIPO, then they are welcome to do so.

Pakistan proposed four measures to break the deadlock. First, is a need to bring back complete transparency and openness. There could not be progress on the basis of the pronouncements of restricted conclaves such as the Casablanca meeting. A few countries cannot be given the right to give directions to the entire membership on this matter, let alone one of such importance. Hence, the starting point of the SCP should be where it left off at the 10th session and its future work must not be compromised by ill-advised initiatives such as the Casablanca event.

Second is the need to reaffirm the basic objectives. These include not only the "efficiency" goals such as reducing the workload of patent offices and improving the quality of patents but also the critically important goals of enhancing "equity" and "balance". This would necessitate addressing issues such as proper disclosure requirements, curbs on anti-competitive practices and provisions that would facilitate the diffusion of technology and innovation.

Third are measures to clarify the complex issues. Pakistan suggested that the WIPO bureau on its own or with UNCTAD produce a comprehensive paper on the implications of the draft SPLT on public policy issues such as national capacities to innovate, access to technology, protection of national IP assets, and so on. The terms of reference should ensure that the varying implications for Member States at differing levels of development are fully addressed. This exercise would allay apprehensions and identify areas in the draft SPLT where caution may be advisable or where additional provisions may be proposed in order to meet the larger objectives of the exercise.

Fourth, on the basis of discussion on the above paper, a more informed decision may be taken on the specific negotiating approach to be pursued. Pakistan viewed the comprehensive approach of negotiating on all current elements of the draft SPLT as the preferable approach. The more limited early-harvest approach could only be considered if the limited package contains a balanced set of elements which address the concerns of all groups of countries and are not arbitrarily selected.

Pakistan concluded that its proposal should not be seen as further slowing the process. Its approach would enhance clarity on the many complex and increasingly contentious issues and facilitate consensus building in an area where WIPO needs to "make haste but slowly".

The US, supporting Group B's earlier statement, said the importance of meaningful patent law harmonization highlighted the urgent need for a sensible workplan. The proposal to limit the SCP's scope of work provided the best opportunity for meaningful results. Agreement on the four issues would promote higher patent quality and reduce duplication. Harmonization will benefit Small and Medium Enterprises (SMEs), and in particular harmonized prior art would improve patent quality, the US claimed.

It believed that continuing with the previous model (as suggested in the Group of Friends of Development proposal) of discussing the entire draft treaty was unmanageable and unworkable and as such the US supported the Casablanca and Secretariat proposal.

Chile reiterated its position that the best and only way to proceed on the SPLT negotiations was to include all the important aspects of patents. It disagreed with the Secretariat proposal to take up four issues, as the interest of all members should be taken into account.

The Philippines associated itself with Argentina, Morocco and India and agreed with the need for a balanced approach. It proposed that the impact of the SPLT obligations must be fully analysed and considered. An accelerated procedure would miss the important aspect of implications on social and economic development.

Ecuador said that patent law, if not correctly agreed on, would affect health, education, biological and genetic resources, access to knowledge and increase the gap with countries unable to invest in technology. It mentioned the effects on health, as well as agriculture and education, which could affect the survival of a country. This view does not disregard IP rights, but "we would be in a difficult position if there was an increase in obligations but a decrease in flexibilities."

Ecuador was concerned that it was not invited for the consultations and it was surprised that the consultations included people and organizations which can in no way represent the views of member states. Such procedures should be rectified, Ecuador said, and supported the Group of Friends of Development proposal.

Iran also associated itself with the Group of Friends of Development statement. It said that procedurally the consultations contradicted the mandate given to it. It proposed an inclusive and transparent process that involved the interests of all member states.

Algeria said the Swiss proposal seemed fairly constructive. It supported an instrument to harmonize patent law. "We support the principle of multilateral forum that is transparent and fair." It was rather surprised by the Casablanca process which did not seem to make progress and thus it supported the Group of Friends of Development statement.

The UK said it agreed with Argentina that "we need to get the global IP system right". They have not made progress, and the reason for this was that too many different issues were being attacked. Casablanca had suggested 6 issues to be discussed, two at the IGC and 4 at the SCP. The UK believed the issues which are equally important should be dealt with in parallel. Separating them will help to focus attention.

Australia said the proposed new work programme included two more issues (sufficiency of disclosure, genetic resources) that met the key needs of civil society. It stressed the fundamental role to create international patent law. It agreed with the Casablanca document but said changes may have to be made. Japan also supported the Casablanca statement.

Argentina, responding to the Chair's 'positive' comment on the earlier Swiss proposal (to work on a reduced package of priority issues), said the great majority of countries that spoke had expressed themselves as in favour of the Group of Friends of Development proposal. On the question of a possible package of negotiations, this would involve a mathematical question, and it did not think this method would resolve the concerns of developing counties. In fact, "we don't see any way out of this if we go round in circles," it said. There are other proposals on the table, it added.

Colombia said it hoped the consultative process in the future shall be open and inclusive. It supported the need to include standards of anti-competitive measures and principles and objectives.

Bolivia said the WIPO rules of procedure should be adhered to. The results should include views of all member states and not just of some of them. It could not accept the Secretariat proposal, as Bolivia has doubts about the basis and the procedures. It was concerned about references being made to processes being taken in the SCP and the IGC as the mandate of IGC may not be renewed.

Canada, supporting the Group B statement, said discussions should concentrate on the outcome and not so much the process. It urged the SCP to achieve tangible results and to avoid further deadlock. It supported the Secretariat paper to advance the work.

Peru, associating itself with the Argentina statement, said the SCP could not adopt the Casablanca proposal as it called for two issues to be discussed at the IGC, but the IGC's mandate would end at its next meeting and it is unclear what its future would be. It is clear that the issue of genetic resources is connected to patents and so it should remain in the SCP. For Peru, all the issues are important and one delegation could not tell others that only some issues it liked has priority.

India, addressing the issue raised by others on impact assessment, said it had also previously spoken about WIPO making such an impact assessment. Such an impact assessment rightly fits when the discussion is about the Development Agenda. However, an impact assessment should not be discussed in a way to make the Casablanca package palatable. India thus wanted to clarify that the impact assessment is not an issue to make the Casablanca statement more acceptable.

Pakistan responded that its proposal for impact assessment was in terms of preparing a paper on the implications of the draft SPLT especially on public policy issues, and the terms of reference of the paper should be carefully elaborated. The utility of this exercise would be that it would be like taking "time out" to have a more complete picture with regards to how the SPLT would impact the countries, and "it will help us to make a decision whether the issues can be fragmented".

India said it was a basic demand that "we should make an impact assessment of IP before proceeding down the path of harmonization of laws".

Switzerland, clarifying its earlier statement, said that since November 2000 the SCP has held six sessions to discuss the scope and content of the SPLT and this had led to useful results. Recent discussions in SCP suggest that the current model for discussion would not lead to progress. One shortcoming is the sheer volume and complexity of issues. Moreover, several provisions in the draft treaty have been controversial and of high political sensitivity especially for developing countries and these divisive issues have been the focus of much debate and hampered progress.

It said an expansive SPLT including all issues currently in the draft SPLT may not be achievable in the near future. To avoid overload, "we should go for a reduced package". It does not mean dropping some issues. Thus, it was proposing a "feasible package" approach, with the socalled reduced package containing 4 priority issues to be dealt with by the SCP and two other issues should be dealt as a priority in the IGC.

Thus, both packages are reduced packages and this reduction should have no negative impact. The goal would be that the SCP and the IGC make recommendations to the General Assembly when they finish their discussions, and nobody would lose anything. The decision would have to be made at the General Assembly, whether they would like to go for a diplomatic conference or decide that there should not be a diplomatic conference.

The US, addressing the question of impact assessment, said it had misgivings of such an approach. It was troubled that an impact assessment would mean convening a body which would be a subset of this body.

Statements were also made by many NGOs, from both business groups (including those representing IP associations and the biotechnology industry) and consumer and development groups (including Medicins sans Frontieres, Consumer Project on Technology and Civil Society Coalition.)

Summing up the first day's discussion, the Chairman (from Russia) said he would distribute a draft Chair's Summary the next day for discussion.