Divisions continue at WIPO patents committee meeting

By Sangeeta Shashikant, Third World Network, 2 June 2005

Divisions, mainly along North-South lines, continued to be shown on 1 June afternoonat the World Intellectual Property Organisation (WIPO), as members discussed how to proceed with work on a proposed new treaty involving the harmonization of patent laws.

The meeting of the WIPO Standing Committee on the Law of Patents (SCP) hadstarted on Wednesday morning with the presentation of two opposing papers. Thefirst paper, by the Secretariat, proposed the adoption of recommendations from aFebruary 'informal consultation' organized by WIPO's Director-General, Dr. KamilIdris, in Casablanca, that called for the SCP to deal only with four issues innegotiations for a new substantive patent law treaty (SPLT).

The four issues, strongly advocated by developed countries, are prior art, grace period,novelty and inventive step. The Casablanca meeting and the Secretariat proposalsbefore the SCP have sidelined other issues proposed by developing countries. Twoof these - disclosure and genetic resources - are proposed to be dealt with by anothercommittee, the Intergovernmental Committee (IGC) dealing with genetic resourcesand traditional knowledge. This IGC does not have treaty-making powers, unlike theSCP.

The second paper, presented by Argentina on behalf of the Group of Friends ofDevelopment (comprising 14 developing countries) rejected the Casablanca approach,which it criticised for fragmenting the issues. Instead, the second paper proposed thatall the issues brought up in the SPLT negotiations be dealt with as a whole in orderto achieve balance.

These issues would include the topics advocated by developing countries, such aspublic interest flexibilities, national policy space, technology transfer,pro-competition principles, as well as disclosure and genetic resources. The Grouphad also criticised the Casablanca process for not including most members. TheGroup's paper said the WIPO Director-General had gone beyond the mandate givento him, namely to consult only on the dates of the next SCP meeting.

In the discussions on Wednesday morning, strong differences of view emerged asmembers showed their preference for one or the other proposal, mainly alongNorth-South lines.

In the afternoon discussion, these divisions continued to be voiced. One significantproposal was that a study be carried out on the impact of the SPLT draft on thedevelopment efforts of developing countries, before proceeding further with the SPLTnegotiations. This was initially put forward by Pakistan and supported by severalother developing countries.

South Africa said it aligned itself with the Friends of Development Group statement. It underscored that the DG had been mandated only to consult on fixing the date ofthe next SCP meeting and thus his consultation should not have been on substantiveissues. South Africa said that it did not agree with the work programme proposed inCasablanca. Instead, the SPLT negotiations should include all proposed amendmentsto ensure balance.

The SPLT should focus on safeguarding public interest flexibilities and not runcounter to what it is in TRIPS, South Africa added. During the SPLT negotiations,important proposals were made on patents - on general exceptions, genetic resources,disclosure and public health. The SPLT negotiations should be based on mutualrespect for all priorities so that the outcome will enjoy legitimacy.

South Africa stressed that harmonized standards would close the policy spaceenjoyed by developing countries. If they have to raise IPR standards to the level of developed countries' standards, they will lose their flexibilities under TRIPS. SouthAfrica could not afford to lose the opportunity to make use of these flexibilities.

It also stressed that the Casablanca statement contains proposals made during theGeneral Assembly, which had been rejected. If adopted, it would fragment thenegotiations onto different tracks and leave aside matters of interest to developingcountries. Negotiations should proceed on the basis of a single undertaking and notin a fragmented manner, South Africa insisted.

Morocco said it had the honour to host the Casablanca meeting and ensured itsconstructive approach. It reaffirmed the importance of a multilateral framework andalso reaffirmed interest in harmonizing, that would result in a less costly patentsystem, reduction of work load and improving quality of patents, thus promotingdevelopment. It also pointed to the importance of having a development aspect ofIntellectual Property. Sudan supported the Morocco statement.

India associated itself with the Group of Friends of Development statement. It saidpatent law has cross cutting implications including on the environment and publichealth, thus it is important for developing countries to understand the full implicationsof the SPLT.

India said that the Director-General had been asked to undertake informalconsultation on the dates for the next SCP meeting, and India had expected aninclusive and transparent process. The mandate to the DG did not include thesubstantive parts and timeframe. The participation at the informal meeting (atCasablanca) was limited and the vast majority of countries were not invited. Theconsultations should be inclusive, transparent and open ended, India added.

In so far as the outcome of Casablanca is concerned, the decoupling of issues andselecting some issues for fast tracking is not acceptable, it said.

Pakistan said the challenge is to agree on IP norms in response to a fast changingglobal environment while ensuring that these norms fully take into account thedevelopmental needs of the membership. The slow progress on the draft SPLT ledto a proposal by some for an 'early harvest' approach by restricting the elements tobe negotiated in a first phase, to four and possibly two additional issues.

Pakistan said this proposal has been accompanied by broad and unfortunate hints thatif there is no quick movement on these issues, then some delegations will pursuethese issues outside WIPO. This has been countered by the position that negotiationsshould continue on the whole range of issues that are on the table in order to ensurethat the concerns of all Member States are addressed and that there is a balancedoutcome.

Pakistan added that there is a growing feeling of unease with the possibledevelopmental implications of the many complex provisions of the draft SPLT andhence an increasing reluctance to quicken the process by picking and choosingelements for an 'early harvest'.

There is further a sentiment that if some countries wish to proceed with this exerciseelsewhere outside WIPO, then they are welcome to do so.

Pakistan proposed four measures to break the deadlock. First, is a need to bring backcomplete transparency and openness. There could not be progress on the basis of thepronouncements of restricted conclaves such as the Casablanca meeting. A fewcountries cannot be given the right to give directions to the entire membership on thismatter, let alone one of such importance. Hence, the starting point of the SCP shouldbe where it left off at the 10th session and its future work must not be compromisedby ill-advised initiatives such as the Casablanca event.

Second is the need to reaffirm the basic objectives. These include not only the'efficiency' goals such as reducing the workload of patent offices and improving thequality of patents but also the critically important goals of enhancing 'equity' and'balance'. This would necessitate addressing issues such as proper disclosurerequirements, curbs on anti-competitive practices and provisions that would facilitatethe diffusion of technology and innovation.

Third are measures to clarify the complex issues. Pakistan suggested that the WIPObureau on its own or with UNCTAD produce a comprehensive paper on theimplications of the draft SPLT on public policy issues such as national capacities toinnovate, access to technology, protection of national IP assets, and so on. The termsof reference should ensure that the varying implications for Member States atdiffering levels of development are fully addressed. This exercise would allayapprehensions and identify areas in the draft SPLT where caution may be advisableor where additional provisions may be proposed in order to meet the larger objectivesof the exercise.

Fourth, on the basis of discussion on the above paper, a more informed decision maybe taken on the specific negotiating approach to be pursued. Pakistan viewed thecomprehensive approach of negotiating on all current elements of the draft SPLT asthe preferable approach. The more limited early-harvest approach could only beconsidered if the limited package contains a balanced set of elements which addressthe concerns of all groups of countries and are not arbitrarily selected.

Pakistan concluded that its proposal should not be seen as further slowing the process.Its approach would enhance clarity on the many complex and increasingly contentiousissues and facilitate consensus building in an area where WIPO needs to 'make hastebut slowly'.

The US, supporting Group B's earlier statement, said the importance of meaningfulpatent law harmonization highlighted the urgent need for a sensible workplan. Theproposal to limit the SCP's scope of work provided the best opportunity formeaningful results. Agreement on the four issues would promote higher patent qualityand reduce duplication. Harmonization will benefit Small and Medium Enterprises(SMEs), and in particular harmonized prior art would improve patent quality, the USclaimed.

It believed that continuing with the previous model (as suggested in the Group ofFriends of Development proposal) of discussing the entire draft treaty wasunmanageable and unworkable and as such the US supported the Casablanca andSecretariat proposal.

Chile reiterated its position that the best and only way to proceed on the SPLTnegotiations was to include all the important aspects of patents. It disagreed with theSecretariat proposal to take up four issues, as the interest of all members should betaken into account.

The Philippines associated itself with Argentina, Morocco and India and agreed withthe need for a balanced approach. It proposed that the impact of the SPLT obligationsmust be fully analysed and considered. An accelerated procedure would miss theimportant aspect of implications on social and economic development.

Ecuador said that patent law, if not correctly agreed on, would affect health,education, biological and genetic resources, access to knowledge and increase the gapwith countries unable to invest in technology. It mentioned the effects on health, aswell as agriculture and education, which could affect the survival of a country. Thisview does not disregard IP rights, but 'we would be in a difficult position if there wasan increase in obligations but a decrease in flexibilities.'

Ecuador was concerned that it was not invited for the consultations and it wassurprised that the consultations included people and organizations which can in noway represent the views of member states. Such procedures should be rectified,Ecuador said, and supported the Group of Friends of Development proposal.

Iran also associated itself with the Group of Friends of Development statement. It saidthat procedurally the consultations contradicted the mandate given to it. It proposedan inclusive and transparent process that involved the interests of all member states.

Algeria said the Swiss proposal seemed fairly constructive. It supported aninstrument to harmonize patent law. 'We support the principle of multilateral forumthat is transparent and fair.' It was rather surprised by the Casablanca process whichdid not seem to make progress and thus it supported the Group of Friends ofDevelopment statement.

The UK said it agreed with Argentina that 'we need to get the global IP system right'. They have not made progress, and the reason for this was that too manydifferent issues were being attacked. Casablanca had suggested 6 issues to bediscussed, two at the IGC and 4 at the SCP. The UK believed the issues which areequally important should be dealt with in parallel. Separating them will help to focusattention.

Australia said the proposed new work programme included two more issues(sufficiency of disclosure, genetic resources) that met the key needs of civil society.It stressed the fundamental role to create international patent law. It agreed with theCasablanca document but said changes may have to be made. Japan also supportedthe Casablanca statement.

Argentina, responding to the Chair's 'positive' comment on the earlier Swiss proposal(to work on a reduced package of priority issues), said the great majority of countriesthat spoke had expressed themselves as in favour of the Group of Friends ofDevelopment proposal. On the question of a possible package of negotiations, thiswould involve a mathematical question, and it did not think this method wouldresolve the concerns of developing counties. In fact, 'we don't see any way out of thisif we go round in circles,' it said. There are other proposals on the table, it added.

Colombia said it hoped the consultative process in the future shall be open andinclusive. It supported the need to include standards of anti-competitive measuresand principles and objectives.

Bolivia said the WIPO rules of procedure should be adhered to. The results should include views of all member states and not just of some of them. It could not acceptthe Secretariat proposal, as Bolivia has doubts about the basis and the procedures. Itwas concerned about references being made to processes being taken in the SCP andthe IGC as the mandate of IGC may not be renewed.

Canada, supporting the Group B statement, said discussions should concentrate on theoutcome and not so much the process. It urged the SCP to achieve tangible results andto avoid further deadlock. It supported the Secretariat paper to advance the work.

Peru, associating itself with the Argentina statement, said the SCP could not adopt theCasablanca proposal as it called for two issues to be discussed at the IGC, but theIGC's mandate would end at its next meeting and it is unclear what its future wouldbe. It is clear that the issue of genetic resources is connected to patents and so itshould remain in the SCP. For Peru, all the issues are important and one delegationcould not tell others that only some issues it liked has priority.

India, addressing the issue raised by others on impact assessment, said it had alsopreviously spoken about WIPO making such an impact assessment. Such an impactassessment rightly fits when the discussion is about the Development Agenda.However, an impact assessment should not be discussed in a way to make theCasablanca package palatable. India thus wanted to clarify that the impact assessmentis not an issue to make the Casablanca statement more acceptable.

Pakistan responded that its proposal for impact assessment was in terms of preparinga paper on the implications of the draft SPLT especially on public policy issues, andthe terms of reference of the paper should be carefully elaborated. The utility of thisexercise would be that it would be like taking 'time out' to have a more completepicture with regards to how the SPLT would impact the countries, and 'it will helpus to make a decision whether the issues can be fragmented'.

India said it was a basic demand that 'we should make an impact assessment of IPbefore proceeding down the path of harmonization of laws'.

Switzerland, clarifying its earlier statement, said that since November 2000 the SCPhas held six sessions to discuss the scope and content of the SPLT and this had ledto useful results. Recent discussions in SCP suggest that the current model fordiscussion would not lead to progress. One shortcoming is the sheer volume andcomplexity of issues. Moreover, several provisions in the draft treaty have beencontroversial and of high political sensitivity especially for developing countries andthese divisive issues have been the focus of much debate and hampered progress.

It said an expansive SPLT including all issues currently in the draft SPLT may not beachievable in the near future. To avoid overload, 'we should go for a reducedpackage'. It does not mean dropping some issues. Thus, it was proposing a 'feasiblepackage' approach, with the socalled reduced package containing 4 priority issues tobe dealt with by the SCP and two other issues should be dealt as a priority in the IGC.

Thus, both packages are reduced packages and this reduction should have no negativeimpact. The goal would be that the SCP and the IGC make recommendations to theGeneral Assembly when they finish their discussions, and nobody would loseanything. The decision would have to be made at the General Assembly, whether theywould like to go for a diplomatic conference or decide that there should not be adiplomatic conference.

The US, addressing the question of impact assessment, said it had misgivings of suchan approach. It was troubled that an impact assessment would mean convening abody which would be a subset of this body.

Statements were also made by many NGOs, from both business groups (includingthose representing IP associations and the biotechnology industry) and consumer anddevelopment groups (including Medicins sans Frontieres, Consumer Project onTechnology and Civil Society Coalition.)

Summing up the first day's discussion, the Chairman (from Russia) said he woulddistribute a draft Chair's Summary the next day for discussion.