|
||
|
TWN
Info Service on Intellectual Property Issues (Jan14/07) Dear Colleagues, The
20th Session of the WIPO Standing Committee on Patents (SCP) began
on Monday. Regards WIPO: Different priorities emerge as Patents Committee begins discussion Alexandra Bhattacharya (Geneva): Developing countries attending the 20th Session of the WIPO Standing Committee on Patents (SCP) called for its work to include development orientation andhighlighted the importance of policy space in patent law to address development needs. They also prioritized in SCP the work on exceptions and limitations,patents and health and transfer of technology. On the other hand, Group B (composed of developed countries) called for a focus on the issue of quality of patents, which includes the use of work sharing programs to improve the efficiencies of the patent system and confidentiality of communications between clients and their patent advisors. The 20th session of SCP is meeting in Geneva from 27th to 31stJanuary, 2014. Historically significant differences tend to emerge from SCP discussions largely along north-south lines. Developed countries have long attempted to pursue a work-program in SCP that leads to harmonization of patent law or procedure. These attempts have not been successful as developing countries insist on policy space in their patent law. Developing countries have also pushed for a work-program in SCP that addresses basic development concerns such as access to medicines, use of flexibilities including E&L and transfer of technology. The 19th session of the SCP could not arrive at an agreement on any of the substantive agenda items and it was agreed “that work for the next session would be confined to fact-finding and not lead to harmonization at this stage”. Thus, the 20th session of SCP is expected to share factual information about the current law and practice among WIPO member States regarding issues on the agenda of the SCP without considering normative outcomes that may lead to harmonization. The 20th session of SCP will deliberate on the following important issues: exclusions from patentable subject matter, exceptions and limitations to patent rights, patents and public health, and transfer of technology. These issues are critical for developing countries to ensure a balance between the protection of intellectual property rights and protection of human rights and developmentneeds. This session will also discuss quality of patents and client attorney privilege, agenda items pushed by developed countries. Further, it is expected that the Global Challenges Division of WIPO will inform Member States on the patent-related aspects of its activities, as per the decision of the 2013 WIPO Assemblies. As the SCP session opened, Mokhtar Warida, an Egyptian delegate for WIPO based in Geneva was elected as Chair of the SCP. Japan, on behalf of Group B, said that although it accepted the chairmanship, it wished to state “for the record” that the SCP was a technical committee and should be chaired by capital experts adding that the current situation should not “be regarded as a precedent”. Egypt also requested for the agenda item “Contribution of SCP to the WIPO Development Agenda Recommendations” to be added to the agenda. Japan, on behalf of Group B, reluctantly accepted this item “with the understanding that this agenda item is not a standing or permanent agenda item.” The WIPO Deputy Director General, Innovation and Technology Sector, James Pooley in his opening remarks referred to the SCP as one of the few multilateral fora where all stakeholders could engage on “questions which were global in nature and be engaged in shaping individual solutions”. He also welcomed the initiatives that allowed sharing of experiences amongst member states which would “enable delegates to be acquainted with different systems and which could be used in the national and internationallevel”. He also noted that the convergence of national laws of key aspects of patent law have also been under discussion and in this context, member states have been discussing best practices. South Africa on behalf of the Africa Group said Development Agenda implementation requires the SCP to give due account to development considerations, including " recognizing the need for policy space for developing countries to design and implement national patent law in a manner conducive to their national development ". It further said "International harmonization of patent laws without giving due account to differences in levels of social, economic andtechnological developement would not be in the benefit of all the Member States". It added that ซ patents have a direct and significant impact oninnovation, economic growth and social development, and that is why it is more necessary than ever to strengthen the fundamental balance between the private interests of right holders and public interests, especially in the patent system ป, adding that SCP activities should facilitate the dissemination and transfer of technology and ensure that the patent system contributes to the promotion of progress and innovation. On the issue of E&L, South Africa stressed that African countries have recognized the need to adapt their national legislation on patents based ontheir respective economic and social situations and the importance of E&L for countries wishing to develop their own system intellectual property. Africa Group is keen to see the SCP contributing to a better understanding and better application of exceptions and limitations, on the basis of the proposal by Brazil, South Africa further said. It also expressed hopes that the seminar on E&L to patent right will contribute to an understanding of how E&L serve specific development objectives and the challenges faced by the countries in implementing E&L. On quality of patents, Africa Group reiterated its concern about the lack of a precise definition of the concept of "quality of patent", adding that quality of patents is largely based on the criteria of patentability which depends essentially on the development objectives of each country. South Africa added that quality cannot be improved by simply adopting the practice of other Patent Offices, and that the harmonization of patent law may undermine flexibilities existing in various national patent laws. " It will be important for national offices to retain discretion in determining the patentability criteria", South Africa further said. [Currently, there are separate proposals by Canada, UK, Denmark, US and Spain on this topic. These proposals mainly seek to promote work sharing between patent offices to promote patent quality. The concern of developing countries is that the aim is not to address issues of patent quality but rather to promote harmonization of patent office procedures.] On patents and health, Africa Group stressed that WIPO must strengthen its commitment and involvement in this area. South Africa recalled that the Africa Group and the DAG jointly submitted a proposal (SCP/16/7 and SCP/16/7 Corr.) which covers a work program which aims to assist Member States, particularly developing countries and least developed countries, to adopt and adjust their patent systems in order to take full advantage of the flexibilities in the international patent system to promote their policies on public health. South Africa also referred to US’ counter-proposal (SCP/17/11) on patents and health as ซ interesting ป, adding that its elements were not related to patents and thus fell outside the mandate of SCP. It expressed hope that the US proposal will not distract the discussion from the objective of enabling developing countries and least developed countries to take advantage of the flexibilities in the international patent system for their public health needs. With regard to technology transfer South Africa emphasized that documents of the Secretariat on WIPO’s activities in the context of technology transfer need to enable the SCP to undertake concrete actions in this area, adding that this issue must be discussed substantially by the Committee as it concerned the relationship between patents and innovation. [WIPO Secretariat has presented a study onpractical examples and experiences on patents and technology transfer (SCP/20/10), however, the revised study is inconclusive particularly as it does not explore cases where patent holders restrain transfer of technology.] Benin, on behalf of the LDC Group expressed hope that SCP’s work on exceptions and limitations and would improve understanding of how E&L can be implemented for a better impact on economic and social development. It also added that the disparity in development levels is behind the difference of views on quality of patents. It also welcomed the briefing session on patents and health with the objective of making progress towards a clearly defined program to enable countries to make use of the flexibilities for their public health priorities. India said that the development of patent system and the use of patentrights should operate in a balanced manner that meets the objective of providing protection for the moral and material interests of inventors, and at the same time meets the objective of promoting the enjoyment of human rights of the other members of the society as well. Ultimately a patent is a social product and has a social function, India added. On the issue of patents and health, India said that there was an urgent need not only to study the flexibilities under TRIPS and effective implementation or utilization of compulsory licensing provisions under patent law in order to provide the life saving drugs on affordable price but also to study the impact of grant of compulsory licenses and the consequential impact on prices of patented drugs. It also emphasized that ever-greening policies for patenting incremental innovations without substantial improvement would have adverse impact on delivery of healthcare services. It also expressed strong support for the Joint Proposal by Africa Group and the Development Agenda Group (SCP/16/7). With regard to the quality of patent, India said that patent offices cannot maintain the quality of patents without maintaining standards for examination and search. It added that quality of examination of patent applications needs to improve substantially so that we do not create huge social cost of granting patents to insignificant improvement which only lead to litigation and create barriers to technology dissemination. The sharing of the work of other offices is not the remedy for improving the quality of patents and thus cannot be considered to be a solution for addressing backlog and as an answer for improvement in quality of patent, India said adding its strong belief that work sharing will adversely affect capacity of the IP offices in developing countries to assess applications. It also stressed that this should not become an area for norm setting in future and steps should be taken to build capacity among IP Offices of the developing countries to enable them to carry out their quasi-judicial functions in thebest manner possible. India also reaffirmed its support to the work program proposed by Brazil (SCP/19/6) on exceptions and limitations and stressed on the need to study in greater detail the various impediments in licensing agreements relating to transfer of technology so that appropriate steps can be taken to address this. It also noted that its request for practices adopted by companies across Member States concerning voluntary licensing of patents has been noted by the Secretariat [SCP/20/10], adding that it appreciated a meaningful outcome of the same. Group B (composed of developed countries) said that the SCP should discuss issues of substantive law, in particular quality of patents including opposition systems and the confidentiality of communications between clients and their patent advisors. Czech Republic, on behalf of Central European and Baltic States (CEBS) also expressed interest on the issue of quality of patents, and cautioned against any duplication of work in WIPO or with other organizations like WTO, WHO. Greece, on behalf of the EU, stated that it attached great importance to “advancing work on the quality of patents along the lines proposed by delegations from Canada, the UK, Denmark, the US, and Spain.” Adding that it was committed to continuing work on issues of opposition systems and confidentiality of communication between clients and their patent advisors, which are of benefit to users of the patent system. On patents and health, the EU stated that future initiative of the Committee in this area should be carefully considered in light of the great incentive the patent system can provide to innovation in order to address the evolving global disease burden, and other health challenges. Similarly, it was of the opinion that possible further activities of this Committee in relation to the transfer of technology should be balanced, and objective, and considered in light of the great many examples of the benefits of the patent system to technology transfer, and the relatively fewer examples of the patent system as an impediment. Third World Network, an observer to the SCP said that deliberations within SCP should inform member States on how to better equiptheir national patent law to achieve their development needs by balancing the public and private rights. Towards this end, TWN called upon Member States not to treat patents as an end in itself and to treat patent subservient to the development objectives. TWN also congratulated the efforts in Brazil and South Africa to reform their patent regime to orient towards their development needs and expressed its grave concern on the attempts of pharmaceutical industry to prevent the patent reforms in South Africa and also the efforts of pharmaceutical industry to exert political pressure on India to prevent the use of TRIPS flexibilities. Exceptions and Limitations The SCP also commenced discussion on the topic of exceptions and limitations. The discussion consists of three segments. On Monday a substantive discussion took place on Secretariat’s documents on the use of the following exceptions and limitations: (i)Private and/or Non Commercial Use (SCP/20/3); (ii)Experimental Use and/or Scientific Research (SCP/20/4); (iii)Extemporaneous Preparation of Medicines (SCP/20/5); (iv) Prior Use (SCP/20/6) and (v) Use of Articles on Foreign Vessels, Aircrafts and Land Vehicles (SCP/20/7). Algeria, on behalf of the African Group commented on Secretariat’s documents, stating that it paid insufficient attention to the implementation challenges of the exceptions and limitations in member states. It added that in cases where the Secretariat mentioned that there was no implementation challenges it was due to non-implementation of the particular exception and limitation. It noted that developing countries andLDCs had significant implementation challenges with respect to exceptions and limitations due to lack of human resources, awareness and general mastering of the subject. The second and and third segments will entail a seminar on the (i) effectiveness of exceptions and limitations when addressing developing concerns and how national capacities affect the use of exceptions and limitations (which will include a presentation by the WIPO Chief Economist) and (ii) case studies on implementation of exceptions and limitations (presentations by Member States). The seminar will be held on Friday, the last day of the SCP session.
|
||
