TWN Info Service on WTO and Trade Issues (Oct 05/5)

8 October 2005

Report 4 on WIPO General Assembly

The Debate on Development Agenda and the Substantive Patent Law Treaty at the Assembly

At the WIPO General Assembly, divisions among Members on mainly a North/South basis were evident in the debate on two controversial
issues - the future of the Development Agenda initiative and future work plan for the Draft Substantive Patent Law Treaty (SPLT)

The debate on these issues took place on 29 September.  Below is a report on the discussions on this day.

With best wishes
Martin Khor


The Debate on Development Agenda and the Substantive Patent Law Treaty at the WIPO Assembly

By Sangeeta Shashikant (TWN), 30 September 2005

At the WIPO General Assembly, divisions among Members on mainly a North/South basis were evident in the debate that took place on 29 September on two controversial issues -- the future of the Development Agenda initiative and future work plan for the Draft Substantive Patent Law Treaty (SPLT)

These two issues add on to another unresolved controversial issue on whether a diplomatic conference on the protection of broadcasting organizations should be launched in 2006.

Informal consultations were held, until late evening by the Chairman, Ambassador Enrique Manalo of the Philippines to try and bridge the differences between Member states over the Development Agenda and the SPLT. It is understood that he also informally presented texts on both issues as a basis for discussion.

On the WIPO Development Agenda issues, it was proposed by the Chairman that "The Member States agree to continue discussions on a WIPO Development Agenda, and in this regard, agree to hold 3 additional sessions of Inter-sessional Intergovernmental Meetings (IIMs) to consider all proposals related to an agenda for development, including those proposing an appropriate permanent WIPO body to address issues pertaining to a development agenda and to report and make recommendations thereon to the General Assembly in 2006".

During the informal discussions on this matter, a few developed-country delegations were strongly opposed to any attempt to renew the IIM process.

With regard to the SPLT, the Chairman proposed that an informal forum for a duration of 5 days will be held in the first quarter of 2006 on all issues covered by the Draft SPLT and a session of the WIPO Patents Committee (SCP) will be held in the second quarter of 2006 for a duration of 5 days, with two days being devoted to a discussion of the four issues of prior art, grace period, novelty and inventive step and 3 days for discussion on other topics which will be identified by Member states. The proposal also states that the SCP will recommend to the WIPO GA in September 2006 a work plan for the following year.

Preliminary views were heard on this proposed text. On both matters, delegates were expected to resume informal consultations Friday evening.

The Assembly also decided Thursday to adopt the recommendation of the last session of the WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) and to extend the mandate of the IGC to the next budgetary biennium to continue its work on traditional knowledge, traditional cultural expressions/folklore and genetic resources. Its mandate includes focus on the consideration of the international dimension of issues raised, without prejudice to work pursued in other fora, and no outcome of the work is excluded, including the possibility of developing an international instrument or instruments.

The renewal of the IGC mandate was widely supported by Members.

WIPO members also agreed (although with some reservations on certain paragraphs) to transmit the Draft Examination of Issues Regarding the Inter-relation of Access to Genetic Resources and Disclosure Requirements in Intellectual Property Rights Applications to the Conference of Parties of the Convention on Biological Diversity. This transmission follows last General Assembly's decision which agreed to respond positively to an invitation from the Conference of Parties (COP) of the Convention on Biological Diversity (CBD) for WIPO to undertake further work on the relationship between intellectual property disclosure requirements and genetic resources and associated traditional knowledge.

The Draft examination incorporates some of the caveats suggested by Member states and accredited observers during the preparation of the Draft. It includes that the Draft examination should "be seen as technical input only", "one contribution to the work of the CBD on these issues, which may be complemented by the work of other international organizations" and it should not be seen as prejudging or pre-empting the work of the CBD on the issues under its mandate nor has it been prepared to advocate any particular approach nor to expound a definitive interpretation of any treaty. It also states that it should not prejudice national positions on the development of legally binding international law.

The WIPO Development Agenda was first launched at the last General Assembly by a group of 14 developing countries (known as the "Group of Friends of Development") to mainstream the development dimension in all of WIPO's activities. Discussions over this Agenda has taken place over 3 IIMs.

The debate is now divided mainly along North-South lines. At the last IIM held in July, no substantive agreement could be reached on recommendations to transmit to the WIPO GA on how to proceed with the initiative, as several developed countries wanted to shift discussions on the Development Agenda to the Permanent Committee on Cooperation for Development Related to Intellectual Property (PCIPD), which traditionally deals with technical assistance matters.

All other delegations were in favour of renewing the IIM process that had been set up and tasked by the 2004 GA to examine the proposals submitted by Member States on the Development Agenda. It is argued by those in favour of renewing the IIM process that the work that it was tasked with has yet to be completed as there has only been a preliminary examination of some of the proposals submitted, while some have not been discussed at all.

During the debate on this matter at the GA, similar points were raised by the various delegations.

Argentina speaking on behalf of the Group of Friends of Development (FOD) said that the last GA agreed on the need for WIPO to enhance its contribution to the international development goals and recognized that as a UN agency, WIPO must be guided in its policies and practices by UN development-related commitments and resolutions. Member states had agreed to address urgently the proposal to establish a Development Agenda in WIPO by providing for IIMs - to find solutions to the concerns and problems faced by developing countries and LDCs and to ensure that the IP system effectively operates in a manner supportive of their national development goals.

The proposal, according to Argentina, seeks to balance IP systems that work in benefit of all, which means not only in favour of wealthy IP exporting nations but also to the benefit of developing countries and LDCs. Incorporating the development dimension into the IP system and WIPO's activities will strengthen the credibility of the IP system and encourage its wider acceptance as a tool for the promotion of innovation, creativity and development. Argentina added that the broad support and favorable reactions and expressions of support received from the different sectors from all around the world, contribute to confirm the spirit of convergence that inspired the proposal of the Group of FOD.

At the IIMs, there was significant engagement of all Members on the debate, many proposals were submitted, and other delegations announced their intention in presenting additional proposals to enrich the debate. It also said that due to the position of a few delegations, the third IIM could not agree on substantive matters and was incapable of agreeing to the continuation of the IIM process. The IIM has to continue with an in-depth consideration of proposals tabled and other additional proposals that may be submitted and they have to be discussed on an equal footing. Argentina said that future meetings should not be limited to an exchange of views but they should advance forward the Development Agenda with concrete recommendations for action and decisions that the GA should adopt.

The process started should be continuous, although not indefinite in time, with the intention to incorporate and implement progressively, step-by-step, concrete measures in all WIPO's activities. The DA should not be a rhetoric exercise nor restrained to a permanent subsidiary body. It also stressed that the DA is not limited to technical or cooperation matters. It addresses a range of cross-cutting elements and thus the PCIPD is an inadequate body to address the proposals raised in the DA process.

Argentina on behalf of the Group of FOD called for the renewal of the IIM process providing for at least 3 meetings during 2006 and that would prepare a report with recommendations to the next GA.

Mexico on behalf of GRULAC countries supported the renewal of the IIM process. It proposed a process with a pre-established mandate and possible future extensions.

Iran on behalf of the Asian Group said that in the presentation of different proposals with different approaches and the introduction of diverse conceptual and operational solutions, there was positive and broad support from members. It supported the renewal of the IIM process and expressed its view that to use time more efficiently and achieve a tangible outcome, the discussion should follow a concrete framework with operational steps in different WIPO activities. In this context, focusing on concrete and concerned subjects such as norm setting, pre-informed consultations, impact assessment, evaluation process and so on will save time and give rise to tangible results.

Morocco on behalf of the African Group said that the development dimension is the main priority for the African countries. It also said that renewing the mandate would make it possible to ensure fair and equitable treatment for all proposals, as the African Group proposal had not been discussed. It supported the renewal of the IIM process.

Brazil associated itself with the statement by Argentina on behalf of the FOD Group and said that IP is an appropriate developmental tool and many developed countries use it in a parsimonious and measured way, under a thoroughly flexible framework, which has today been taken away from developing countries, depriving these countries of the same successful path undertaken. There is also growing concern that IP regimes have become more and more disassociated from their original purposes leading to the consolidation of economic spaces and legal litigation, generating problems and side effects that were not anticipated nor intended when they were originally set up.

In proposing the DA, it has always been the intent to ensure that these issues are considered in an encompassing way in WIPO's deliberations and not to diminish the importance of WIPO, the role it can play in this area nor to cancel obligations undertaken. Brazil said that the proposal responds to concerns heard from developed and developing countries and from civil society groups, and academics including Nobel laureates regarding the current and future evolution of the global IP system. It is clear that it is not a North-South issue.

Brazil also called for the renewal of the IIM process, reiterating that the DA is a broad and horizontal proposal, which is meant to address WIPO's work in all its dimensions and therefore it cannot be referred to a single subsidiary body such as the PCIPD.

Antigua and Barbuda on behalf of the Caribbean states Belize, Grenada, Commonwealth of Dominica, Jamaica, and Trinidad and Tobago said that the DA will contribute to strengthen WIPO and add to its already significant contribution. It called for renewal of the IIM process as it has not completed its mandate. It would be premature to end the IIM given the plethora of issues to be addressed.

Ambassador Rigoberto Gauto Vielman of Paraguay who chaired the IIM process said that he sensed a genuine interest and commitment among delegations to proceed on the issues, even though much time was spent on procedural issues, and believed that the mechanism chosen by last year's Assembly was appropriate. It is most logical and simple to ask for a number of similar meetings to continue. He encouraged delegations that had reservations about the renewal of the IIM to show flexibility.

India supported the renewal of the IIM mechanism. It said that the remaining tasks are to identify the aspects of each proposal that Members want to act on, and to craft recommendations for the GA. It also said that it was impera tive to renew the process as otherwise wrong signals might be sent to the world that WIPO is more interested in promoting IP than promoting public policy goals.

The other countries that spoke in favour of the renewal of the IIM process are the delegations of Malaysia, China, Kenya, Benin (on behalf of LDCs), Afghanistan, Peru, Sudan, Uruguay, Chile, Pakistan, South Africa, Egypt, Colombia, Thailand and Algeria.

The Swiss Delegation on behalf of Group B (comprising developed countries) said that they were willing to continue discussions but believed that it can be best done within the existing framework of PCIPD. It said that consensus on this matter should not be jeopardized by the process, as there is commitment to make progress on the substantive issues.

The UK on behalf of the European Community (EC), Bulgaria and Romania said that the priority should be moving forward on the substance and that consensus should not jeopardize the substance. It supported the Group B position that opposes the renewal of the IIM process and favours the PCIPD as a forum for discussion.

The US said that it supported a frank exchange of views but the IIM process did not provide a venue for in-depth consideration. Thus it does not support the renewal of the process. It said that a permanent forum was needed to examine the proposals since the IIM last year has reached the end of its mandate. It proposed the reinvigoration of the PCIPD, to give better treatment to all proposals, saying that it is provided for in the budget, it has a dedicated secretariat staff and its sessions last a full week, giving more time for robust discussion. It offered to give the PCIPD a specific mandate, and if members want, then to even change its name, saying that focused discussion "will allow us to reach concrete and effective results". It also reiterated that WIPO should not become a core development body.

Japan was also opposed to the renewal of the IIM process.

Bahrain said that there was a need to find a formula to deal with the proposals tabled. Jordan supported the statement by Bahrain.

After all the statements were made, the Chair indicated that there was consensus on the need to discuss proposals that have been submitted. The issue is, where to proceed. He summarized the discussions, saying that a wide majority believed that the IIM process should be extended to complete its work. He noted that there was an alternative proposal with respect to the place of discussions. He proposed to continue discussions in an informal setting.

With respect to the Agenda item pertaining to the future work programme of the SCP, it is also generally a North-South dispute. Member states were divided over this work programme during the 11th session of the SCP (1-2 June 2005).

The developed countries would like to have an international agreement on the scope and definition of prior art, grace period, novelty and inventive step, and have these globally harmonized in national patent laws. Many developing countries have strong reservations on such a harmonization exercise, as it may have adverse developmental effects. Instead, they propose that the SPLT deal with reforming patent laws to take more account of public interest flexibilities, the disclosure of origin of genetic resources, transfer of technology and the curbing of anti-competitive practices.

The WIPO Director-General Dr Kamil Idris held an informal consultation in Casablanca (involving a limited number of countries) that came up with recommendations similar to proposals that have been advocated by the developed countries, particularly the US and Japan (and rejected numerous times by developing countries), that is, the SPLT negotiations focus on the four issues of interest to them (namely prior art, grace period, novelty and inventive step), while the other issues of interest to developing countries such as disclosure of origin of genetic resources either be discussed in the Intergovernmental Committee on Genetic Resources, Traditional Knowledge and Folklore (IGC) or discussed later.

During the June SCP meeting, many developing countries criticized the Casablanca outcomes as not being transparent or participatory on procedure and the substance of its proposals. The debate on how the SCP is to proceed with its work is now before the GA.

Switzerland speaking on behalf of Group B urged the GA to set the work plan back on track by approving the limited work plan.

The UK on behalf of the EC, Bulgaria and Romania said it supported the Group B position. The Czech Republic on behalf of Central European & Baltic States supported the EC position.

The US also supported the Group B statement and said that there was a need for a sensible plan to move forward on the SPLT and that a single undertaking is not an appropriate framework to move things forward as it would be unworkable and inefficient.

Argentina on behalf of the Group of FOD stated that there was no consensus to limit the work plan to 4 issues (novelty, inventive step, grace period & prior art) and as noted in the Casablanca statement. The work plan should cover a broader range of development issues of concern to developing countries. The narrow focus on 4 areas are unacceptable as it merely reflects the interests of developed countries. Patent law is important as it has significant cross-cutting impact on various issues such as public health, environment, and nutrition. The WTO Doha Declaration has acknowledged that international norms should not stand in the way of pursuit of public health and policy concerns and encouraged the use of TRIPS flexibilities.

Argentina referred to the call for a Development Agenda and said that in light of this call all norm-setting bodies have to take into account the development dimension and to ensure that norm-setting exercises do not run counter to policies of developing countries. Both pre-grant and post-grant flexibilities must be safeguarded, said Argentina. The proposal to narrow discussion to 4 issues is not consistent with the development dimension as it will lead to loss of flexibilities. These provisions provided for in the Casablanca statement are proposals by the US and Japan and involve core aspects of the patent regime. Under the TRIPS agreement there is flexibility to establish the substantive aspects of patents, but following the Casablanca approach, the developing countries cannot make proposals of interest to them.

Argentina also expressed concern over the manner in which the consultations occurred and said that the Casablanca statement is not a balanced one as not all member states had been invited, participants expressed views in their personal capacity and some disassociated themselves from the outcome of the meeting. This should not happen again. A new SPLT should not contradict the DA. It indicated its agreement on behalf of the FOD Group to work if all relevant matters and concerns of member states are considered on an equal footing and a balanced approach is adopted.

Venezuela, Iran, South Africa, Brazil and Egypt endorsed the statement made by Argentina on behalf of the Group of Friends of Development. India and Chile were also not in favour of the limited package.

Brazil endorsed the statement by Argentina and said that this agenda item was both a matter of substance and procedure. Brazil said that it had disassociated itself from the Casablanca process. It also said that harmonization may be a euphemism for standardization that is not appropriate. It added that harmonization was in opposition, to a certain extent, to its belief that patent laws should be in line with the national interests of each country. However, despite that, Brazil said that it had supported going forward. But it said that it did not believe that it is appropriate to proceed on a small number of issues, as this might contribute to the misunderstanding over this form of "harmonization."

The Chairman after hearing the different views on the subject matter indicated that it was difficult to provide a summary on the direction of the future work programme and the matter can only be clarified in a more informal setting. Informal consultations on this matter were expected to continue.

(* With inputs from Thiru Balasubramaniam and Ren Buc Holz.)