WIPO members split on future work on patent law treaty

By Martin Khor (TWN), Geneva, 1 June 2005

Member states at a meeting at the World Intellectual Property Organisation (WIPO) were unable to agree on how to proceed with the future work programme of its patents committee, which is negotiating an international treaty on patents.

The negotiations at the WIPO's Standing Committee on the Law of Patents (SCP) fora substantive patent law treaty (SPLT) have been bogged down in recent months bydisagreement on how to proceed, particularly on the scope of (or issues to be coveredby) the treaty and the procedures and schedules to be followed.

The disagreements surfaced again on 1 June morning when the SCP began atwo-day meeting.

At the start of discussions on the 'work programme for the SCP' (which is the mainagenda item), two papers with opposing views were presented.

A paper by the WIPO Secretariat invited the meeting to 'consider and adopt' therecommendations and work programme for the SCP contained in a statement arisingfrom 'informal consultations' held in Casablanca on 16 February, organized by theWIPO Director-General with some countries.

The Casablanca statement proposed that only four issues (prior art, grace period,novelty and inventive step) be taken up by the SCP (and by implication in the SPLT).These are issues advocated by developed countries.

The Casablanca statement also proposed that two other issues (sufficiency ofdisclosure and genetic resources), which the developing countries have beenadvocating for within the SCP (and in the SPLT) be taken up instead in theIntergovernmental Committee on Intellectual Property and Genetic Resources,Traditional Knowledge and Folklore (IGC).

Unlike the SCP, the IGC is not a norm-setting or treaty-making body (at least at thisstage), and thus has a lower standing in that sense.

The implication of the Casablanca statement's proposed work programme is that onlythe four issues, which are being advocated by the developed countries, will be on theSCP agenda and within the scope of the SPLT, while other issues (including the twomentioned) would not be dealt with, or be dealt with at the IGC, which is not atreaty-making body.

A second paper by 14 developing countries known as the 'Group of the Friends ofDevelopment' is opposed to this approach of separating the topics. The Groupcomprises Argentina, Brazil, Bolivia, Cuba, Dominican Republic, Ecuador, Egypt,Iran, Kenya, Peru, Sierra Leone, South Africa, Tanzania and Venezuela.

Responding to the Casablanca statement, the Group's paper indirectly criticized theDirector-General for arranging the Casablanca meeting in a way that went beyond themandate given to him by the WIPO General Assembly, which was only to organizeconsultations to fix the date of the next SCP meeting.

'The consultations must be focused on establishing a date for convening the SCP,'said the Group's paper. 'They cannot involve, modify or affect decisions adopted bythe General Assembly (of WIPO), more so on matters of substance as those relatedto the controversial SPLT negotiations, or establish a work programme.'

In contrast to the Casablanca proposal for the SCP to deal only with four issues, theGroup's paper (in para 5) reaffirmed that the SCP 'should consider and endorse thecontinuation of the negotiations of the SPLT on the basis of the draft treaty as awhole, including all the amendments that had been tabled by Member States to ensurea balanced treaty on the substantive harmonization of patent law that will address theconcerns of all parties to the negotiations.

'To that end, the SPLT should include, inter alia, provisions of the technologytransfer, on anti-competitive practices, on the safeguarding of public interestflexibilities, as well as specific clauses on principles and objectives.'

The para added that member states of the SCP have the prerogative to decide on theconvenience and opportunity of transmitting to the General Assembly any proposalspresented to the SCP on issues under the Committee's competence.

The Group put forward para 5 of its paper as its recommendation for the future workprogramme for the SCP, as an alternative to the Casablanca proposal.

At the start of the discussion, the WIPO Secretariat explained that the WIPO GeneralAssembly (at its meeting last October) could not reach consensus on proposalsrelating to the SCP and asked the Director-General to undertake consultations ondates for the next meeting. The DG held consultations in Casablanca, whichrecommended on how the work programme might be handled in future. The DG hadadopted the recommendations as his own and was now transmitting it to the SCP,added the Secretariat.

Argentina, introducing the Group's paper, said that most of the Group's members hadnot been invited to the Casablanca meeting, so they decided to undertake their ownconsultations in Geneva. They were concerned about the turn of discussions latelyespecially in relation to the SPLT.

Argentina stressed that patent law is a very sensitive issue with cross-cuttingimplications for public policy. More stringent intellectual property standards mayhave serious implications on health, the environment and nutrition. Theseimplications were brought to public attention through the WTO Doha Declaration onTRIPS and Public Health, which stressed that patents should not be in the way ofpublic health goals.

Argentina said the developing countries had called for a WIPO development agenda,under which all WIPO subsidiary bodies must take into account developmentprinciples, and that norm setting in WIPO must respect and not run counter to thepolicy space of developing countries.

Norm setting should also safeguard the flexibilities in existing treaties. Regardingpatents, flexibilities for determining policies at the pre- and post-grant levels must besafeguarded.

Argentina said that since 2000 views in the discussions on the SPLT had beendivided. Some countries said there should be a new treaty to harmonise patentstandards upwards, which would add new obligations on top of TRIPS. Thisembodied the view that norm setting in WIPO should bring IP standards upwards,irrespective of the countries' levels of development. The implications of this fordevelopment are serious.

Argentina added that the composition of invitees to the Casablanca meeting was notbalanced, many countries were not there, organizations that are not part of WIPOwere included (though many members were not), and individuals were invited in theirpersonal capacity.

It also recalled that at the SCP meetings on SPLT, the developing countries have putforward proposals to safeguard their policy space, and wanted a balanced approachwhere all views are considered. However, the Casablanca-proposed work programmereflected the same proposal put forward by two states (referring to the US and Japan)at the WIPO General Assembly (last October) that were rejected, and these had alsobeen rejected at the SCP meeting in May 2004. Argentina said it was surprising thatthe same proposal was put up again for a third time.

Opposing the proposal, Argentina said that it would fragment the SCP issues alongtwo tracks, with one track taking up the four issues (prior art, grace period, noveltyand inventive step) while leaving behind the issues (that developing countries had putforward) such as public interest flexibilities, technology transfer, competition anddisclosure, and genetic resources.

Argentina remarked that developing countries were not demandeurs in the SPLTnegotiations but had showed flexibility in tabling proposals. The Casablanca proposalwould on the other hand lead to the loss of policy space for national policies. This didnot involve a procedural issue only, as the issues singled out in Casablanca involvedcore aspects of the patent regime relating to patentability.

It was clear, said Argentina, that the negotiations could not leave aside the issuesfundamental to the developing countries' interests. The Casablanca proposal howeverwould not allow countries to put forward the proposals they want and this is againstthe principles of multilateralism. The negotiations should take into account theconcerns of all.

Therefore, said Argentina, the Group cannot accept the Casablanca document as thebasis for discussing future work. Negotiations should continue on a draft treaty as awhole, and the SCP should address all issues on an equal footing. A new treaty thatdoes not take into account potential impacts and national sovereignty, and that doesnot contain provisions for flexibilities for the public interest would run counter to theWIPO development agenda.

This is thus a practical test for WIPO's commitment to development and theDevelopment Agenda. Argentina urged all members to show that WIPO can dealwith intellectual property in the context of development.

Italy (representing Group B of developed countries) said in a brief statement thatharmonization of patents would benefit all stakeholders including civil society andrights holders. It supported the Casablanca document which it said represents abalanced work plan.

Singapore (on behalf of ASEAN countries) said the four issues mentioned in theCasablanca statement are important and that it was equally important that progress onwork on disclosure in the IGC is made. There should be close interface of the workin the SCP and IGC. An efficient international patent system is important but it mustbe sensitive to development needs and provide safeguards and flexibilities. It stressedthe importance of multilateralism in shaping the SCP work programme.

Egypt said it had maintained a clear position since the SPLT negotiations started thatthe work should be conducted in a balanced and inclusive manner. Egypt and theAfrican Group have not welcomed an exclusive unbalanced approach in the SPLTnegotiations when such an approach was raised previously at the SCP and the GeneralAssembly.

Egypt said the Casablanca statement had repeated the same approach by proposinga future work programme set up on a discriminatory basis, through focusing ondeveloped countries' issues while issues tabled by developing countries are put on adifferent track. Thus, the Casablanca work programme failed to address the legitimateconcerns of a large number of countries and cannot constitute the basis for discussionon future work.

Egypt added that the SPLT negotiations should not be an exception to balanced, fairand transparent multilateral negotiations under the UN system. If the proponents ofthese negotiations have a genuine desire to take it forward, they should be keen ontaking on board the developing countries' concerns equally, including their issuessuch as sufficiency of disclosure, genetic resources, and technology transfer.

Egypt called for a balanced outcome of all IP norm setting activities which effectivelyintegrates the development dimension and 'aspirations of our societies and enablesthe IP system to be responsive to public policy concerns.'

Luxemburg (on behalf of the EU) supported the Group B statement in support of theCasablanca work programme.

Brazil, associating itself with Argentina and the Group of Friends of Development,said patent law harmonization has serious implications in many areas of public policyand thus could not be approached as a technical exercise. 'We are all concerned withthe potential substantive implications of the new treaty, and we don't see how we candisassociate the substantial outcome from the set-up of the environment wherenegotiations take place.'

Brazil stressed that the substance and procedure intersect and that transparency andinclusiveness in the process will determine the degree of inclusiveness of the finalpackage. Thus, negotiations should be held in a transparent, open member-drivenmanner, with all countries welcomed to participate.

It was thus concerned about the Casablanca outcome, just as many other countries hadclarified that they could not agree to the work plan in the Casablanca statement.

On substance, Brazil stressed that the patent law provisions suggested in Casablancafocused on four aspects but did not include safeguards for public interest and this willcompromise the policy space and flexibilities that were in TRIPS. 'Our policy spacehas already been considerably narrowed by the legacy of the Uruguay Round,' saidBrazil, urging that members find a balanced work plan agreeable to developingcountries.

Switzerland said that harmonization is key and should be pursued at WIPO toincrease the quality of patents and avoid work duplication among patent offices. Fullharmonization of patent laws is a broad task and since no progress had been made sofar, 'we need a new working method.' It supported the Casablanca document aspragmatic and balanced. It was pragmatic as it asked the SCP to focus on four issueswhile the IGC would look at two other issues, and this would help achieve results ina short time.

The discussions were expected to continue Wednesday afternoon.