[A2k] WIPO: UK submission

[Teresa Hackett (eIFL)]

Sent on behalf of Barbara Stratton, UK CILIP/IFLA.
Written by the UK Patent Office and tabled for the IIM meeting next week.

Teresa
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IP AND DEVELOPMENT

Observations from the United Kingdom

Introduction

In 2001 the UK Government established an independent Commission on
Intellectual Property Rights (IPR Commission) to consider how
Intellectual Property Rights and Development Policy could be integrated.
That Commission comprised members from developing as well as developed
countries. The report produced by that Commission was widely recognised
as a valuable contribution to the debate on the many complex issues
surrounding this topic and has been influential in shaping UK Government
policy in this area.

Although the main driver for setting up that Commission was the issue of
intellectual property and health, the brief provided to the Commission
was much wider. This enabled it to address broader issues relating to IP
and development some of which have been raised in the WIPO development
agenda paper put forward by Argentina and Brazil. This paper touches on
some of these wider issues.

The UK believes that IPRs can play a vital role in the course of the
development process for developing countries today, just as they did,
and continue to do, in the UK, other developed countries and the most
successful developing economies. A prerequisite for sustainable
development in any country is the development of an indigenous
scientific and technological capacity. As the IPR Commission recognised,
an IP system is capable of being an important element in developing that
capacity, notably in those countries which have already developed a
scientific and technological infrastructure. But as the IPR Commission
Report makes clear, an IP system cannot of itself ensure a country
attains its developmental goals. This we believe is true irrespective of
how the IP system is constituted. The degree to which development goals
are met depends on many different factors, particularly the economic,
social and environmental policies it chooses to pursue, for example,
openness to trade and effective governance.

This has been further brought out in the recently issued report of the
Commission for Africa which was established by the UK Government to take
a fresh look at Africa=92s past and present and the international
community=92s role in its development path. That Commission comprised
distinguished people from a number of countries, mainly African and was
chaired by the Prime Minister of the UK acting in an independent
capacity. This Commission also highlighted the imperative of
strengthening science and technology capacity in Africa in order to
enable countries there to find their own solutions to their own problems
and critically to unlock the potential of innovation and technology to
accelerate economic growth and enter the global economy.

The UK has for some time recognised that there is a need to build the
capacity of developing countries in science and technology and that
international cooperation between developed and developing countries is
a means to this end. The UK=92s Department for International Development
(DFID) is amongst the largest spenders on research and development of
bilateral aid donors. In addition it contributes its share to European
Union programmes for research cooperation with developing countries.
Much of DFID's research expenditure involves scientific and
technological cooperation between developed and developing country
research institutions. As the Report of the Commission for Africa
acknowledges it is also important for research institutions to set up
public-private partnerships or what they refer to as =93innovation hubs=94
to foster innovation, entrepreneurship and technology diffusion. The UK
believes that an appropriate IP system has a part to play in encouraging
such activities. Indeed the UK Government continues to promote such
partnerships with British public research bodies.

What constitutes an appropriate IP system has already been and will
continue to be the subject of much debate. One of the overriding
messages that emerged from the IPR Commission Report was that IP regimes
can and should be tailored to take into account individual country's
circumstances within the framework of international agreements such as
TRIPs. The IPR Commission Report also raised the important issue of how
technical assistance from developed countries and international
organisations such as the WIPO can be provided so as to ensure that
developing countries fully understand how to create an effective
intellectual property system appropriate to their needs. The UK
Government has already signalled its commitment to this goal, in its own
technical assistance programmes, in participating in the reflection on
how to better provide technical assistance on IPR and in influencing
those of international organisations.


Role of WIPO

The IPR Commission Report specifically called on WIPO to act to
integrate development objectives into its approach to the promotion of
IP protection in developing countries. In particular the report felt
that WIPO should give explicit recognition to both the benefits and
costs of IP protection and the corresponding need to adjust domestic
regimes in developing countries to ensure that the costs do not outweigh
the benefits. The report added that it is for WIPO to determine what
substantive steps are necessary to achieve this aim but it should as a
minimum ensure that its advisory committees include representatives from
a wide range of constituencies and, in addition, seek closer cooperation
with other relevant international organisations.

In its response the UK Government indicated its full support for these
recommendations. It also recognised the importance of integrating IP
policies with the formulation and implementation of Poverty Reduction
Strategy Papers which are compiled by a wider range of developing
countries more generally as the basis for focussing development
assistance on country priorities. It is within the overarching framework
of these more general poverty reduction or development plans that WIPO
needs to act. The UK will continue to work to ensure this happens. As
the IPR Commission noted, if WIPO is unable to do this within its
existing mandate then that mandate should be changed. A specific
proposal to do this is included in the Argentina/Brazil paper. We are
however not as yet persuaded that WIPO=92s existing mandate is such that
it is prevented from effectively integrating development objectives into
its activities. We will of course consider carefully any suggestion to
the contrary.

Technical Cooperation

WIPO is widely recognised as a major provider of technical assistance.
Its program for cooperation with developing countries has for example
been allocated resources in excess of SFr55 Million for the 2004-05
biennium. Despite the relatively large sums being devoted to technical
cooperation activities, concerns have been raised about the nature and
transparency of this cooperation. The IPR Commission Report expressed
concern about whether IP was being promoted in a balanced manner,
recognising that it carries costs as well as benefits for all countries.
Also highlighted was the importance of engaging with the full range of
stakeholders involved in IP, including both the producers and users of
technologies and products so as to ensure that each country is assisted
to find the right balance for itself. This was considered especially
important in respect of the legislative advice that WIPO provided to
countries seeking to meet their international obligations. The UK
believes that WIPO has taken steps to improve transparency particularly
in the context of its legislative advice. This is to be welcomed.

Technical cooperation must be tailored to countries=92 needs and should be
seen in a broad sense including enhancing capacity to facilitate the
development of balanced IP-related policies. This implies integrating
technical assistance in a broader context. In this respect it seems
clear that WIPO is engaging with a wider range of stakeholders when
drawing up nationally focused action plans. Whether the extent of this
engagement is sufficiently broad is less clear. It is also unclear
whether these action plans for specific countries or regions have taken
account of broader development or poverty reduction strategies
applicable to those countries. We would invite the WIPO Secretariat to
provide information on this as a basis for a further discussion,
possibly within the PCIPD. Indeed we believe WIPO Member States should
consider strengthening and refocusing the PCIPD to create a rejuvenated
active and specific committee for defining WIPO programmes on
development and acting as a seed bed for development discussions.

Complementing policy coherence, donor coordination and TA effectiveness
is also key. WIPO is not alone in providing IP technical assistance to
developing countries. As indicated above the UK Government, principally
through its Department for International Development is also an active
provider of IP related technical assistance albeit on a more modest
scale. Numerous other public and private organisations and countries
also contribute significantly in this area. With such a range of donors
and potential recipients there is clearly the possibility of wasteful
overlapping, duplicating, and piecemeal efforts. The recently submitted
proposal by the US to improve coordination between donors and potential
recipients is therefore to be welcomed. Such a proposal would also
provide a valuable contribution to a more general stock take of current
activities in this area.

As well as improved coordination it is also necessary to effectively
monitor the impact of any technical assistance on development in the
recipient country. Such assessments could serve to identify best
practices which could then be utilised to shape future programs.
Methodologies for such impact assessments should also conform to best
practice as practiced by both IP and non IP technical assistance
providers. We are aware that the PCIPD has in the past been invited to
consider evaluation reports produced with the aid of external auditors
on technical cooperation activities undertaken by WIPO. However it is
unclear to us whether these reports have been sufficiently focused on
the actual impact on development in the participating countries, whether
the PCIPD or any other body has adequately scrutinised the findings of
these reports and whether robust mechanisms are in place to ensure that
lessons learnt are incorporated into future activities. A rejuvenated
PCIPD with input from both IP and development specialists from Member
States would seem well capable of enhancing the evaluation process.

Patent Law Harmonisation

The UK believes that further harmonisation of patent laws has the
potential to bring benefits to stakeholders in both developed and
developing countries. This is true even if harmonisation is restricted
to a reduced package of issues. Common laws on novelty, inventive step,
prior art and grace periods should serve to reduce the cost of acquiring
patent rights in multiple jurisdictions. This should be especially so if
harmonisation leads to a reduction in duplication of search and
examination in the jurisdictions in which protection is sought. Whilst
the majority of patent applicants continue to originate from developed
countries, there is also a growing number of filings from applicants
from developing countries. For example according to recent WIPO figures,
whilst the overall growth of PCT filings in 2004 compared with 2003 was
estimated at just over 4%, the growth in PCT filings from 23 selected
developing countries apparently grew by more than 23% over the
corresponding period. The number of PCT applications from applicants
from these 23 developing countries when expressed as a percentage of the
total PCT applications although small also grew between 2003 and 2004.

As well as having the potential to reduce the cost of applications,
harmonisation also has the potential to reduce the time taken to process
applications, including the time taken to refuse applications. Any
reduction in the period of uncertainty whilst an application is pending
benefits not just applicants but also third parties in all countries. It
is however important to ensure that any reduction in the cost and time
to obtain patents does not lead to a reduction in quality. The
development of a quality framework for applications processed within the
framework of the PCT, work that was led by the UK, should go some way to
ensuring that only patents with a high degree of validity are granted
under the PCT. This too will benefit legitimate competition.

In terms of the measures that might be harmonised, harmonisation of
prior art to potentially include any disclosure including through use
anywhere in the world should, as noted in the IPR Commission Report,
help to reduce the number of patents granted for traditional knowledge
that is already in the public domain although not through written
disclosure. It should also make it easier to challenge any granted
patents claiming such knowledge.

The UK does however recognise that for some countries, particularly
least developed countries where there is little or no domestic demand
for patents, further harmonisation is unlikely to bring any direct
benefit to offset the costs of further amending their patent laws. For
such countries it may be appropriate to explicitly provide in any
harmonisation proposal an extended transition period or even a clear opt
out. The Commission on Africa commented, albeit in a slightly different
context in relation to Free Trade Agreements, that African countries
should have the flexibility to implement reform at an appropriate pace
and in line with their own development strategies. This we believe is
equally relevant and applicable to the poorer developing countries
within WIPO. We would nevertheless encourage such countries to continue
to engage in and help shape the debate.

As with any negotiations it will ultimately be up to each party to weigh
up in consultation with all the relevant stakeholders the costs and
benefits of any proposals. Central to that consideration in many
countries will be the question of whether any proposal is likely to
increase or reduce uncertainty in the patent system. The UK continues to
believe that an agreement acceptable to all member states of WIPO is
possible.

Technology Transfer

The IPR Commission Report rightly notes that the determinants of
effective technology transfer are many and various. For example the
ability of countries to absorb knowledge from elsewhere and then make
use and adapt it for their own purposes is of crucial importance. This
is a characteristic that depends on the development of local capacity
through education, through R&D, and the development of appropriate
institutions without which even technology transfer on the most
advantageous terms is unlikely to succeed. The IPR Commission Report
felt that the broad nature of the issue meant that the focus of any
discussions should be more on the WTO in general rather than TRIPs. This
is now being done through the Working Group on Trade and Transfer of
Technology which was established at the Doha Ministerial Conference.

It therefore seems questionable whether given these ongoing discussions
in the WTO, and the broad range of issues raised by the subject, it is
necessary at this stage to create a new standing committee on IP and
technology transfer within WIPO. Specific IP related issues already
known to be, or which emerge as, relevant to the subject could however
be taken up within existing WIPO bodies and programs. For example
Article 40 of TRIPs recognises that some licencing practices or
conditions pertaining to intellectual property rights which restrain
competition may impede the transfer and dissemination of technology. The
assistance and advice already provided by WIPO to countries wishing to
adopt measures to prevent or control such practices could be reviewed in
for example a rejuvenated PCIPD and if necessary enhanced.

Conclusion

In this paper which is presented in the spirit of cooperation we have
sought to make some observations on a number of issues surrounding this
debate. The paper makes specific proposals particularly in respect of
how WIPO=92s technical cooperation program is managed. We recognise
however that the debate is much broader than technical cooperation. We
have touched briefly on a number of other areas and look forward to
engaging more fully as the debate, which we hope will be inclusive and
informed, matures.

2002 The Report of the Commission on Intellectual Property Rights and
the UK Government Response
http://www.iprcommission.org/graphic/documents/final_report.htm
See the 2003 UK Government Response to the Report:
http://www.iprcommission.org/graphic/uk_government_response.htm
2005. The Report of the Commission for Africa
http://www.commissionforafrica.org/english/report/introduction.html
See for example Document PCIPD/2/8 discussed at the 2nd Session of the
PCIPD in 2001
WIPO PCT Statistical Indicators Report January 2005
http://www.wipo.int/ipstats/en/statistics/patents/pdf/pct_monthly_report.pd=
f

END