TWN Info Service on WTO and Trade Issues (June08/24)
30 June 2008
Third World Network

WIPO: Patents committee begins work with usual North-South differences
Published in SUNS #6503 dated 25 June 2008

Geneva, 24 Jun (Sangeeta Shashikant) -- WIPO's Standing Committee on Patents (SCP) began its week-long session on Monday, with many developing countries calling for an in-depth discussion on the "Report on the International Patent System" prepared by WIPO.

Several developing countries were of the view that the Report could be better balanced, could consider additional issues (compulsory licensing exceptions and limitations to patent laws, patents and standards, anti-competitive measures, opposition) and be further revised following comments from members and other stakeholders.

Discussions at the SCP have been at a stalemate for the past few years. Developed countries are pressing for concluding negotiations on a draft substantive patent law treaty (SPLT) based on a limited number of issues of interest to them.

Developing countries on the other hand want the scope of negotiations on the SPLT to be wider, to also include issues of concern to them.

Discussion on a Secretariat report on the patent system was seen by the WIPO General Assembly as a way to build a better atmosphere at the SCP so that it can agree on developing a new work program.

Some developing countries noted that any work programme developed must address issues that concern developing and developed countries.

Group B (composed of industrialized countries) however seemed keen to develop a work programme on the basis of a selected number of issues without engaging on a discussion on all issues in the Report. Their main aim is to initiate processes to further the harmonisation of patent laws. Several of its members put forward improving the efficiency of the patent system (including its search and examination capacity) and reducing the burden of patent offices as reasons for harmonisation.

At past SPLT negotiations, Group B had proposed that the SPLT focus on 4 issues (prior art, grace period, novelty and inventive step). However this approach was rejected by developing countries.

Developing countries have wanted the SPLT negotiations to also include policy space for flexibilities; exclusions from patentability; exceptions to patent rights; anti-competitive practices; disclosure of origin, prior informed consent and benefit sharing in relation to genetic resources and traditional knowledge; effective mechanisms to challenge the validity of patent; sufficiency of disclosure; transfer of technology and alternative models to promote innovation.

Group B also insisted that the work-programme of the SCP should not duplicate work in other WIPO committees in particular work in the Committee on Development and IP (CDIP) and in the Intergovernmental Committee on Genetic Resources, Traditional knowledge and Folklore (IGC).

Several developing countries have voiced reluctance to move towards the further harmonisation of national patent laws, with some indicating that it was premature to select issues and begin negotiations on harmonisation. Some questioned the very need and benefit of such harmonisation for developing countries.

The developed countries' suggestion to limit the mandate of the SCP was also not accepted by developing countries such as Brazil.

At Monday's SCP meeting, Brazil said it was important to realise that the SCP was meeting after years without agreement on efforts for substantive patent law harmonisation based on a reduced list of items.

Brazil supported proceeding on the basis of the report in a gradual mode and without haste. It said the issues are many, complex and dense as indicated in the report and it favoured an open and inclusive approach that does not attempt upfront to produce any commitments for treaties.

It said guidelines were needed to enable easy discussions without an attempt to reach agreement or make any hard conclusions. It proposed a "substance driven discussion" - with a view to "progressive development to a new consensus to a work programme for the SCP". This would lead to a discussion on whether there was a need to move forward on harmonizing certain features of the patent law system.

It further said that a case for "change" had to be made and substantiated and this was a "new starting point", adding that it would not support being selective of some issues and narrowing the focus of discussion.

Brazil wanted an open discussion on the report, with comments from all segments, i. e. academics, NGOs, private enterprises and all other stakeholders, adding that this would enhance the validity of the SCP.

Brazil also observed that the Annex to the Report contained a matrix on national provisions for 7 issues (Prior Art; Novelty; Inventive step [obviousness]; Grace Period; Sufficiency of Disclosure; Exclusions of Patentable Subject Matter; Exceptions and Limitations of the Rights). Four of these are issues proposed by Group B.

Brazil questioned why and how these issues were considered essential ones to be examined in such a way. It hoped the intention was not to provide a new listing of issues in the same vein as the ill-fated talks of the previous SPLT meetings.

Brazil said important issues such as anti-competitive practices, transfer of technology and patent standards are not included in the list and said that these issues should also be integrated into the matrix of national provisions.

Algeria on behalf of the Africa Group also recalled that members were coming from a position of a deadlock. It wanted to see SCP working from a balanced agenda as it was difficult to discuss some issues without touching other on other issues. The report needed in-depth examination.

India said that while it recognized the quest for harmonisation, it also supported the "harmonisation of the aspirations of developing countries". It did not necessarily agree with all the indicative conclusions in the report, but welcomed discussion, endorsing Brazil's proposed method of work on the Report.

Pakistan said that the Report reflected some concerns of the countries objectively while on other issues more work is needed. The Secretariat could come up with another document that covers all the issues in totality, after the members discussed the report. El Salvador said it would have liked to see more commentary on the use of compulsory licenses.

Nigeria said that while there is a mix of issues in the Report, in effect it stressed harmonization of patent laws but harmonization is against the interests of developing countries. Issues of importance to developing countries include issues of development and flexibility, exclusions from patent law, transfer of technology, alternative models of innovation.

US on behalf of Group B expressed hope for a detailed work plan for the SCP, adding its support for the harmonization of patent laws as this would bring benefits such as increase in the number of applications, reducing backlogs, improving predictability for applications and so on. The adoption of the 45 Recommendations of the Development Agenda augurs will for the SCP.

Slovenia on behalf of the European Communities stressed the need to define a clear work program, adding that since the last SCP there were important developments and achievements.

References to cross-negotiations between different WIPO committees by developed countries prompted Brazil to respond that if the SCP is to achieve a "consensus outcome" then there would have to be "an inner balance within the patent discussion itself." Otherwise this will not lead to a balanced outcome of North-South perspectives and private and public interests. It is fundamental to achieve this balance in the work plan.

China remarked that disclosure of origin should be a part of discussion on substantive patent law. This led the US to respond that duplication of efforts should be avoided; adding that the IGC is already discussing the issues of Genetic Resources and Traditional Knowledge while the CDIP is overseeing implementation of the 45 Recommendations including technology transfer and open collaborative research and that while waiting for the Committee to make recommendations, the SCP should not "short circuit" the process.

India responding to the US statement countered that disclosure of origin has attracted a critical mass in the WTO and when discussing "prior art" (an issue proposed by Group B) the issue may concern matters that exist in the jurisdiction of another committee.

It also referred to the recommendations of the Development Agenda on norm-setting which speaks about promoting flexibility and economic development of developing countries and not constraining policy space for developing countries; and added that SCP discussions had to be compatible with DA recommendations.

It also said that preconceived ideas should be avoided as harmonisation is not the only way to produce outcomes. Other means can be used, like creating user friendly systems that promote the objectives without (necessarily having an) instrument.

The Chair, Maximiliano Santa Cruz from Chile concluded the first day by saying that whatever work program that is agreed must be balanced, take into account the interests of users, holders, developed countries and developing countries.

The Chair told members to keep an open mind and to not exclude topics from the discussion including the 45 Recommendations of the Development agenda, adding that the Report could have additional topics added to it. +