TWN Info on WTO and Trade Issues (Jun05/9)

25 June 2005

No agreement on future work of WIPO Patents Committee

Below is our third and final report on the meeting of WIPO's standing committee on patents (2-3 June 2005).

Intense negotiations took place on a 3-page Chair's Summary of the meeting.

At the conclusion of the meeting, there was no substantive agreement on how the committee's work should proceed.

With best wishes
Martin Khor


No agreement on future work of WIPO Patents Committee

By Sangeeta Shashikant (Third World Network), 4 June 2005

The Standing Committee on the Law of Patents (SCP) at the World Intellectual Property Organization (WIPO) ended its meeting on 3 June 2005 without any agreement among Member States on how the future work programme of the committee should proceed.

The WIPO Secretariat had proposed the adoption of recommendations from a February "informal consultation" organized by WIPO's Director-General, Dr. Kamil Idris, in Casablanca. This consultation meeting had called for the SCP to deal only with four issues in negotiations for a new substantive patent law treaty (SPLT).

The developed countries strongly supported the Casablanca statement to limit discussions in the SCP to issues of prior art, grace period, novelty and inventive step.

Issues proposed by developing countries particularly on disclosure and genetic resources had been sidelined by the Casablanca statement, which had proposed that they be dealt with by the Intergovernmental Committee (IGC) dealing with genetic resources and traditional knowledge.

This division along North-South lines persisted throughout the weeklong meeting.

On 2 June, intense negotiations took place on the 3-page summary prepared by the Chair, before all the delegations agreed to it during an extended session on the morning of 3 June.

It had been agreed by delegations that since there was no agreement on how to proceed with the future work of the SCP, the summary should be factual, reflecting the different positions adopted during the meeting.

Numerous developing country delegations were not agreeable to the structure of the first draft summary of the Chair, as it appeared that the views of countries mostly from the industrialized world that supported the Casablanca statement were presented in detail while the views of developing countries that opposed the Casablanca statement were stated in a limited manner which seemed to indicate that their position did not receive much support.

Argentina in particular pointed out that their concerns relate to the 'equilibrium' between the paragraphs which reflect the views of developed countries and the paragraphs which reflect the views of developing countries.

The negotiations over the Chair's summary focused on the precise wording and phraseology that should be used to reflect in a factual and balanced manner the discussions that took place.

The text of the Summary of the Chair that was finally agreed upon explicitly states that discussions on the future work program for the SCP were held based on the Casablanca statement (document SCP/11/3) and the statement made by Argentina on behalf of the Group of Friends of Development (comprising 14 developing countries) rejecting the Casablanca approach, which it criticized for fragmenting the issues (document SCP/11/4).

The summary also states that the "Delegation of Argentina, speaking on behalf of the 'Friends of Development' introduced document SCP/11/4. The delegation called for a balanced and inclusive approach to discussion on the Substantive Patent Law Treaty (SPLT). In this regard, it stressed the importance that issues of interest to all parties to the discussion should be dealt with on an equal footing. All delegations should be allowed to make proposals on any matters of interest to them. The delegation recalled, in particular, that a balanced and inclusive SPLT should include, inter alia, clauses on public interest flexibilities, transfer of technology, curbing of anti-competitive practices and bio-diversity (disclosure of origin). Many delegations expressed reservations with respect to the procedure and outcome of the informal consultations held in Casablanca. Several developing country delegations, including the delegations of Chile, Colombia and India, opposed the approach of the Casablanca consultations and supported the views set out in document SCP/11/4."

The text then refers to the position of Group B countries expressed by the Delegation of Italy that "it firmly believed that harmonization would benefit all stakeholders, including civil society, right holders and intellectual property offices."

On the recommendations in the Casablanca statement, the Delegation stated in the Summary that it "thought that it represented an effective way of structuring and progressing the work of this Committee and of the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC).

"Group B believed that that proposal represented a balanced work plan which addressed the interests of all Member States. It further stated that Group B looked forward to advancing this work program both in this Committee and in the other relevant bodies of this Organization."

The summary also reflects the position of the Delegations of Luxembourg speaking on behalf of the European Community and its Member States, Morocco, the Republic of Korea and Sudan which 'supported the views expressed by the Delegation of Italy'.

The views of the delegations of Sudan and Singapore (on behalf of the Association of South East Asian Nations, ASEAN) countries are also noted in the Summary.

The paragraphs read as follows: "The Delegation of Sudan emphasized that the building of consensus should be observed. The Delegation of Singapore, speaking on behalf of the ASEAN states that the close interface between the SCP and the IGC in addressing both the definition of prior art, grace period, novelty and inventive step, and the sufficiency of disclosure and genetic resources in a timely and accelerated manner remain a key to the efforts of the SCP, and that it supported the creation of a balanced and equitable international patent system that struck a balance between the interests of users and right holders and those of consumers and society at large saying that the building of consensus should be observed."

The Delegation of China put on record in the summary "that the issue relating to the disclosure of the origin of genetic resources in patent applications should be addressed in the SCP."

Following these general statements and noting the wide divergences in opinion on the future work program of the SCP, "several proposals were made with a view to bridge the existing divergences."

"The Swiss delegation suggested an approach under which six issues (prior art, grace period, novelty, inventive step, sufficiency of disclosure and genetic resources) would be considered in parallel in the SCP (prior art, grace period, novelty and inventive step) and in the IGC (sufficiency of disclosure and genetic resources) and would, if and when agreement was reached on them, be submitted together to a Diplomatic conference.

"Several delegations underlined the usefulness of that proposal while several other delegations opposed it.

"The Delegation of Brazil stressed that, in its view, the comprehensive proposal from the 'Friends of Development' took on board the positions of all countries, while being open to discussing a work plan that would seek to organize all issues of the draft SPLT as a whole into a manageable and effective program.

"The US stated that, in its view, the previous entire treaty document with additional proposals was unmanageable, inefficient and unworkable and did not provide a viable manner in which to proceed."

This part of the Summary was agreed upon after more than an hour of debate as to which proposals should be seen as attempting to bridge existing differences.

The significant divergence in the proposals to bridge differences provides a clear indication that the Committee faces a deadlock on the approach that should be taken in negotiating the SPLT.

Pakistan supported by many developing countries including India proposed a way out of the deadlock, and this is stated in the Summary. The proposal is "that before embarking on any negotiations in accordance with any of the previous paragraphs a comprehensive study be carried out jointly with UNCTAD to examine the various implications of the draft SPLT for countries at different levels of development with the view to taking an informed decision on the negotiating approach to be pursued."

The US however expressed concern over this proposal and added a caveat following the proposal that "Some delegations supported this proposal while some other delegations opposed it."

The Summary of the Chair, which was finally agreed to by all parties, further "recognized the importance of the work of the SCP and emphasized that the work on patent law harmonization should be progressed taking into account the interest of all parties."

Originally, Brazil had proposed the use of the phrase "progressed in a balanced manner", stating that such an approach had been mentioned by numerous delegations present, in their statements.

However, following objections from the US, Argentina proposed to replace it with "progressed taking into account the interest of all parties."

The US delegation continued with its objections even to the Argentina proposal but finally gave way when there was overwhelming agreement with the intervention by India that "no delegation can argue against" what was being proposed by Argentina.

The Summary while mentioning the participation of non-governmental organizations in the discussions, does not explicitly state the position taken by each organization, as the summary notes that "Their views are fully reflected in the report of the session" that will contain all the interventions that were made during the meeting.

The Summary also states, "The Representatives of the Eurasian Patent Office (EAPO) and the European Patent Office (EPO) (both intergovernmental organizations) supported the recommendations of the informal consultations held in Casablanca on February 16, 2005."

There was a contentious debate on this, before a decision was reached on how to reflect the views of the NGOs and intergovernmental organizations in the summary.

The first draft summary that was prepared by the Chair named specific NGOs and intergovernmental organizations and their positions, in supporting or opposing the recommendations of the informal consultations held in Casablanca.

However, after noting that it was not the practice during WIPO meetings to name in the Chair's summary, NGOs and their respective positions as they do not have decision-making powers (although their views are persuasive), it was decided that the names and their positions on the future work of the SCP be removed from the Summary.

It was agreed that their views and interventions be reflected in the report of the session. Only the positions of intergovernmental bodies would be reflected in the Summary.

At a very late stage of discussions on the Chair's summary, the delegation of Venezuela insisted that its views were not reflected in the Summary. Another paragraph was added which stated that the Venezuelan delegation wished to state expressly that there was no consensus on the progress on the SPLT.