TWN Info Service on Intellectual Property Issues (Apr09/01)
7 April 2009
Third World Network

Below is a news report on the recently concluded WIPO meeting on patents. The report was first published in SUNS and is reproduced here with permission.

Regards
Sangeeta Shashikant
Third World Network

WIPO: Patent Committee agrees on future work, process for July conference
Published in SUNS #6671 dated 31 March 2009

Geneva, 29 Mar (Riaz K. Tayob*) -- The Standing Committee on Patents (SCP) of the World Intellectual Property Organization (WIPO) concluded its week-long thirteenth session on 27 March at which it agreed on its future work as well as the process for setting the agenda of the July 2009 conference.

The Committee also held discussions on four new reports relating to patent issues and attorney-client privilege.

The thirteenth session of the SCP agreed that further work would be undertaken on the Preliminary Studies on Selected Issues reports, which would remain open for further comments and discussion.

According to the Chairman's Summary, the SCP also agreed that the July 2009 Conference will include the issues of health, environment, climate change and food security.

The Chairman's Summary is prepared under the Chair's own responsibility, and an official record of the meeting will be submitted to members electronically for comment. The Chair of the SCP is Mr Maximiliano Santa Cruz of Chile.

The Patent Committee, at its five-day meeting, considered four reports: (1) Dissemination of Patent Information; (2) Exceptions to Patentable Subject Matter and Limitations on Patent Rights; (3) Patents and Standards; and (4) Attorney-Client Privilege.

The SCP concluded discussions on the report on the International Patent System, carried over from its previous meeting. However, the report remains open for further comment by Member States and will be discussed at the next SCP meeting.

The topics for the reports were selected at the previous SCP meeting (from 23-27 June 2008) based on a non-exhaustive list of eighteen topics that Members wished to be on its agenda. Two additional topics were added to the list during the current session.

Many delegations were of the view that the reports constituted a good basis for discussions, and requested further elaboration and clarification on various issues contained in the documents.

The Patent Committee supported the holding of a conference in July 2009, as was suggested at the twelfth session of the SCP (from 23-27 June 2008).

The Chair of the SCP and the Secretariat will jointly conduct open-ended consultations with all Member States on the programme, and will include the issues of health, environment, climate change and food security.

The SCP Chair said during the closing session that the Secretariat will send a tentative agenda to the missions next week.

Many submissions and amendments were made on the section in the Chair's Summary on the Future Work of the SCP.

The Patent Committee reaffirmed its list of issues identified at the 12th SCP, and added the issue of "patents and the environment", with particular attention to climate change and alternative sources of energy. An item on patent quality management systems was also added.

The SCP agreed that the four reports would remain open for further discussion and comments at the next session.

A number of studies will be prepared, taking into account interventions from members. For the first study, the Secretariat will commission external experts for a study on exclusions, exception and limitations from a public policy, socioeconomic and developmental perspective, bearing in mind levels of development. It will focus on but not be limited to issues raised by members.

For the second study, the Secretariat will prepare a concept paper on technical solution to improve greater access to, and dissemination of, patent information.

During the discussions, some members referred to the Global Portal (information system) patent search and examination. Developing countries proposed the expansion of WIPO's Patent Scope database. The study should take into account comments from the floor.

For the third study, the Secretariat will expand the preliminary study on client-attorney privilege to reflect the current state of play in the area. India said that this study must take into account the perspectives of various stakeholders and also allow the use of external experts, if necessary.

The Secretariat will also establish preliminary studies on two additional topics -- "Transfer of Technology" and "Opposition Systems."

Some members raised issues regarding the lack of citation for information in the reports and asked for greater and clearer attribution. Other members said that the studies need to specifically look at the impact on development, and in this context referred to the WIPO's Development Agenda.

During the discussions on Standards and Patents (SCP/13/2), some developing countries made interventions supporting the development of draft guidelines including in relation to the payment of reasonable royalties and competition.

Brazil called for more precision and said that the report deals with the concept of standards in an extensive manner, including norms and technical regulations. This may undermine discussions in the committee, Brazil said.

It also did not differentiate between standards for promoting interoperability and connectivity and standards related to public policy, like health and the environment, said Brazil, adding that public policy must not be undermined by stringent practices regarding standards.

During the discussions on Exclusions from Patentable Subject Matter and Exceptions and Limitations to the Rights (SCP/13/3), several developing countries said that the document did not comprehensively look at all the issues.

Sri Lanka, for the Asia Group, wanted studies on what was/could be outside the patent system and how this was impacted upon through bilateral and regional trade agreements (in the context of the use of exceptions and limitations). It also requested further study into the way in which developed countries used the patent system to aid their development during their earlier stages of development.

Bolivia said that it is opposed to patents on life, which its constitution prohibits on ethical and moral grounds.

Some other countries questioned why the EU directive relating to patents on plant, animal and human life was so heavily relied upon. Others said that it failed to look at the issue from the perspective of the impact on farmers' rights.

Tunisia said that the study was based on a postulate that the intellectual property (IP) system is to promote innovation and that society gets improved benefits from the system. But the benefits may not be available to all. It said that public policy objectives need to play a major role in crafting limitations and exceptions in the patent system.

Pakistan said that Article 30 of the TRIPS Agreement needs to be interpreted broadly to the benefit of developing countries, and the study should do that.

Brazil said that the study "depicts a rather negative portrayal" of the subject. Among its criticisms of it are that the report states that considerations of ethical, health and environmental nature should be regulated by laws other than patent law. Brazil could not agree with the notion that exceptions and limitations may lead to reducing incentives for investors to invest in innovative activities.

Referring to WIPO's Development Agenda, Brazil said that WIPO should take into account the flexibilities available in international IP agreements (in recommendation No. 17) and that it should address in its working documents norm-setting activities issues such as possible flexibilities, exceptions and limitations for Member States (recommendation No. 22).

During the discussions on Client-Attorney Privilege (SCP/13/4), developing countries variously expressed interest in issues related to the impact of this on patent quality, competition and disclosure. During the discussions on Dissemination of Patent Information (SCP/13/5), some developing countries sought expansion of the Patent Scope system to include public and private information, and that it be freely available.

The next session of the SCP is tentatively set for 9 to 13 November.

(* with inputs from Sanya Reid Smith.) +