[A2k] WIPO Assembly: More contentious issues emerge at WIPO GA, but no solutions

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Sangeeta

 SUNS #5885 Monday 3 October 2005

south-north development monitor SUNS [Email Edition]



Development: More contentious issues emerge at WIPO GA, but no solutions

Geneva, 30 Sep (Sangeeta Shashikant*) -- Further differences among Members

became evident as debate over two controversial issues - the future of the

Development Agenda initiative and future work plan for the Draft Substantive

Patent Law Treaty (SPLT) - took place Thursday at the WIPO General Assembly

(GA).



These two issues add on to another unresolved controversial issue on whether

a diplomatic conference on the protection of broadcasting organizations

should be launched in 2006.



Informal consultations were held, until late evening by the Chairman,

Ambassador Enrique Manalo of the Philippines to try and bridge the

differences between Member states over the Development Agenda and the SPLT.

It is understood that he also informally presented texts on both issues as a

basis for discussion.



On the WIPO Development Agenda issues, it was proposed by the Chairman that

"The Member States agree to continue discussions on a WIPO Development

Agenda, and in this regard, agree to hold 3 additional sessions of

Inter-sessional Intergovernmental Meetings (IIMs) to consider all proposals

related to an agenda for development, including those proposing an

appropriate permanent WIPO body to address issues pertaining to a

development agenda and to report and make recommendations thereon to the

General Assembly in 2006".



During the informal discussions on this matter, a few developed-country

delegations were strongly opposed to any attempt to renew the IIM process.



With regard to the SPLT, the Chairman proposed that an informal forum for a

duration of 5 days will be held in the first quarter of 2006 on all issues

covered by the Draft SPLT and a session of the WIPO Patents Committee (SCP)

will be held in the second quarter of 2006 for a duration of 5 days, with

two days being devoted to a discussion of the four issues of prior art,

grace period, novelty and inventive step and 3 days for discussion on other

topics which will be identified by Member states. The proposal also states

that the SCP will recommend to the WIPO GA in September 2006 a work plan for

the following year.



Preliminary views were heard on this proposed text. On both matters,

delegates were expected to resume informal consultations Friday evening.



The Assembly also decided Thursday to adopt the recommendation of the last

session of the WIPO Intergovernmental Committee on Intellectual Property and

Genetic Resources, Traditional Knowledge and Folklore (IGC) and to extend

the mandate of the IGC to the next budgetary biennium to continue its work

on traditional knowledge, traditional cultural expressions/folklore and

genetic resources. Its mandate includes focus on the consideration of the

international dimension of issues raised, without prejudice to work pursued

in other fora, and no outcome of the work is excluded, including the

possibility of developing an international instrument or instruments.



The renewal of the IGC mandate was widely supported by Members.



WIPO members also agreed (although with some reservations on certain

paragraphs) to transmit the Draft Examination of Issues Regarding the

Inter-relation of Access to Genetic Resources and Disclosure Requirements in

Intellectual Property Rights Applications to the Conference of Parties of

the Convention on Biological Diversity. This transmission follows last

General Assembly's decision which agreed to respond positively to an

invitation from the Conference of Parties (COP) of the Convention on

Biological Diversity (CBD) for WIPO to undertake further work on the

relationship between intellectual property disclosure requirements and

genetic resources and associated traditional knowledge.



The Draft examination incorporates some of the caveats suggested by Member

states and accredited observers during the preparation of the Draft. It

includes that the Draft examination should "be seen as technical input

only", "one contribution to the work of the CBD on these issues, which may

be complemented by the work of other international organizations" and it

should not be seen as prejudging or pre-empting the work of the CBD on the

issues under its mandate nor has it been prepared to advocate any particular

approach nor to expound a definitive interpretation of any treaty. It also

states that it should not prejudice national positions on the development of

legally binding international law.



The WIPO Development Agenda was first launched at the last General Assembly

by a group of 14 developing countries (known as the "Group of Friends of

Development") to mainstream the development dimension in all of WIPO's

activities. Discussions over this Agenda has taken place over 3 IIMs.



The debate is now divided mainly along North-South lines. At the last IIM

held in July, no substantive agreement could be reached on recommendations

to transmit to the WIPO GA on how to proceed with the initiative, as several

developed countries wanted to shift discussions on the Development Agenda to

the Permanent Committee on Cooperation for Development Related to

Intellectual Property (PCIPD), which traditionally deals with technical

assistance matters.



All other delegations were in favour of renewing the IIM process that had

been set up and tasked by the 2004 GA to examine the proposals submitted by

Member States on the Development Agenda. It is argued by those in favour of

renewing the IIM process that the work that it was tasked with has yet to be

completed as there has only been a preliminary examination of some of the

proposals submitted, while some have not been discussed at all.



During the debate on this matter at the GA, similar points were raised by

the various delegations.



Argentina speaking on behalf of the Group of Friends of Development (FOD)

said that the last GA agreed on the need for WIPO to enhance its

contribution to the international development goals and recognized that as a

UN agency, WIPO must be guided in its policies and practices by UN

development-related commitments and resolutions. Member states had agreed to

address urgently the proposal to establish a Development Agenda in WIPO by

providing for IIMs - to find solutions to the concerns and problems faced by

developing countries and LDCs and to ensure that the IP system effectively

operates in a manner supportive of their national development goals.



The proposal, according to Argentina, seeks to balance IP systems that work

in benefit of all, which means not only in favour of wealthy IP exporting

nations but also to the benefit of developing countries and LDCs.

Incorporating the development dimension into the IP system and WIPO's

activities will strengthen the credibility of the IP system and encourage

its wider acceptance as a tool for the promotion of innovation, creativity

and development. Argentina added that the broad support and favorable

reactions and expressions of support received from the different sectors

from all around the world, contribute to confirm the spirit of convergence

that inspired the proposal of the Group of FOD.



At the IIMs, there was significant engagement of all Members on the debate,

many proposals were submitted, and other delegations announced their

intention in presenting additional proposals to enrich the debate. It also

said that due to the position of a few delegations, the third IIM could not

agree on substantive matters and was incapable of agreeing to the

continuation of the IIM process. The IIM has to continue with an in-depth

consideration of proposals tabled and other additional proposals that may be

submitted and they have to be discussed on an equal footing. Argentina said

that future meetings should not be limited to an exchange of views but they

should advance forward the Development Agenda with concrete recommendations

for action and decisions that the GA should adopt.



The process started should be continuous, although not indefinite in time,

with the intention to incorporate and implement progressively, step-by-step,

concrete measures in all WIPO's activities. The DA should not be a rhetoric

exercise nor restrained to a permanent subsidiary body. It also stressed

that the DA is not limited to technical or cooperation matters. It addresses

a range of cross-cutting elements and thus the PCIPD is an inadequate body

to address the proposals raised in the DA process.



Argentina on behalf of the Group of FOD called for the renewal of the IIM

process providing for at least 3 meetings during 2006 and that would prepare

a report with recommendations to the next GA.



Mexico on behalf of GRULAC countries supported the renewal of the IIM

process. It proposed a process with a pre-established mandate and possible

future extensions.



Iran on behalf of the Asian Group said that in the presentation of different

proposals with different approaches and the introduction of diverse

conceptual and operational solutions, there was positive and broad support

from members. It supported the renewal of the IIM process and expressed its

view that to use time more efficiently and achieve a tangible outcome, the

discussion should follow a concrete framework with operational steps in

different WIPO activities. In this context, focusing on concrete and

concerned subjects such as norm setting, pre-informed consultations, impact

assessment, evaluation process and so on will save time and give rise to

tangible results.



Morocco on behalf of the African Group said that the development dimension

is the main priority for the African countries. It also said that renewing

the mandate would make it possible to ensure fair and equitable treatment

for all proposals, as the African Group proposal had not been discussed. It

supported the renewal of the IIM process.



Brazil associated itself with the statement by Argentina on behalf of the

FOD Group and said that IP is an appropriate developmental tool and many

developed countries use it in a parsimonious and measured way, under a

thoroughly flexible framework, which has today been taken away from

developing countries, depriving these countries of the same successful path

undertaken. There is also growing concern that IP regimes have become more

and more disassociated from their original purposes leading to the

consolidation of economic spaces and legal litigation, generating problems

and side effects that were not anticipated nor intended when they were

originally set up.



In proposing the DA, it has always been the intent to ensure that these

issues are considered in an encompassing way in WIPO's deliberations and not

to diminish the importance of WIPO, the role it can play in this area nor to

cancel obligations undertaken. Brazil said that the proposal responds to

concerns heard from developed and developing countries and from civil

society groups, and academics including Nobel laureates regarding the

current and future evolution of the global IP system. It is clear that it is

not a North-South issue.



Brazil also called for the renewal of the IIM process, reiterating that the

DA is a broad and horizontal proposal, which is meant to address WIPO's work

in all its dimensions and therefore it cannot be referred to a single

subsidiary body such as the PCIPD.



Antigua and Barbuda on behalf of the Caribbean states Belize, Grenada,

Commonwealth of Dominica, Jamaica, and Trinidad and Tobago said that the DA

will contribute to strengthen WIPO and add to its already significant

contribution. It called for renewal of the IIM process as it has not

completed its mandate. It would be premature to end the IIM given the

plethora of issues to be addressed.



Ambassador Rigoberto Gauto Vielman of Paraguay who chaired the IIM process

said that he sensed a genuine interest and commitment among delegations to

proceed on the issues, even though much time was spent on procedural issues,

and believed that the mechanism chosen by last year's Assembly was

appropriate. It is most logical and simple to ask for a number of similar

meetings to continue. He encouraged delegations that had reservations about

the renewal of the IIM to show flexibility.



India supported the renewal of the IIM mechanism. It said that the remaining

tasks are to identify the aspects of each proposal that Members want to act

on, and to craft recommendations for the GA. It also said that it was impera

tive to renew the process as otherwise wrong signals might be sent to the

world that WIPO is more interested in promoting IP than promoting public

policy goals.



The other countries that spoke in favour of the renewal of the IIM process

are the delegations of Malaysia, China, Kenya, Benin (on behalf of LDCs),

Afghanistan, Peru, Sudan, Uruguay, Chile, Pakistan, South Africa, Egypt,

Colombia, Thailand and Algeria.



The Swiss Delegation on behalf of Group B (comprising developed countries)

said that they were willing to continue discussions but believed that it can

be best done within the existing framework of PCIPD. It said that consensus

on this matter should not be jeopardized by the process, as there is

commitment to make progress on the substantive issues.



The UK on behalf of the European Community (EC), Bulgaria and Romania said

that the priority should be moving forward on the substance and that

consensus should not jeopardize the substance. It supported the Group B

position that opposes the renewal of the IIM process and favours the PCIPD

as a forum for discussion.



The US said that it supported a frank exchange of views but the IIM process

did not provide a venue for in-depth consideration. Thus it does not support

the renewal of the process. It said that a permanent forum was needed to

examine the proposals since the IIM last year has reached the end of its

mandate. It proposed the reinvigoration of the PCIPD, to give better

treatment to all proposals, saying that it is provided for in the budget, it

has a dedicated secretariat staff and its sessions last a full week, giving

more time for robust discussion. It offered to give the PCIPD a specific

mandate, and if members want, then to even change its name, saying that

focused discussion "will allow us to reach concrete and effective results".

It also reiterated that WIPO should not become a core development body.



Japan was also opposed to the renewal of the IIM process.



Bahrain said that there was a need to find a formula to deal with the

proposals tabled. Jordan supported the statement by Bahrain.



After all the statements were made, the Chair indicated that there was

consensus on the need to discuss proposals that have been submitted. The

issue is, where to proceed. He summarized the discussions, saying that a

wide majority believed that the IIM process should be extended to complete

its work. He noted that there was an alternative proposal with respect to

the place of discussions. He proposed to continue discussions in an informal

setting.



With respect to the Agenda item pertaining to the future work programme of

the SCP, it is also generally a North-South dispute. Member states were

divided over this work programme during the 11th session of the SCP (1-2

June 2005).



The developed countries would like to have an international agreement on the

scope and definition of prior art, grace period, novelty and inventive step,

and have these globally harmonized in national patent laws. Many developing

countries have strong reservations on such a harmonization exercise, as it

may have adverse developmental effects. Instead, they propose that the SPLT

deal with reforming patent laws to take more account of public interest

flexibilities, the disclosure of origin of genetic resources, transfer of

technology and the curbing of anti-competitive practices.



The WIPO Director-General Dr Kamil Idris held an informal consultation in

Casablanca (involving a limited number of countries) that came up with

recommendations similar to proposals that have been advocated by the

developed countries, particularly the US and Japan (and rejected numerous

times by developing countries), that is, the SPLT negotiations focus on the

four issues of interest to them (namely prior art, grace period, novelty and

inventive step), while the other issues of interest to developing countries

such as disclosure of origin of genetic resources either be discussed in the

Intergovernmental Committee on Genetic Resources, Traditional Knowledge and

Folklore (IGC) or discussed later.



During the June SCP meeting, many developing countries criticized the

Casablanca outcomes as not being transparent or participatory on procedure

and the substance of its proposals. The debate on how the SCP is to proceed

with its work is now before the GA.



Switzerland speaking on behalf of Group B urged the GA to set the work plan

back on track by approving the limited work plan.



The UK on behalf of the EC, Bulgaria and Romania said it supported the Group

B position. The Czech Republic on behalf of Central European & Baltic States

supported the EC position.



The US also supported the Group B statement and said that there was a need

for a sensible plan to move forward on the SPLT and that a single

undertaking is not an appropriate framework to move things forward as it

would be unworkable and inefficient.



Argentina on behalf of the Group of FOD stated that there was no consensus

to limit the work plan to 4 issues (novelty, inventive step, grace period &

prior art) and as noted in the Casablanca statement. The work plan should

cover a broader range of development issues of concern to developing

countries. The narrow focus on 4 areas are unacceptable as it merely

reflects the interests of developed countries. Patent law is important as it

has significant cross-cutting impact on various issues such as public

health, environment, and nutrition. The WTO Doha Declaration has

acknowledged that international norms should not stand in the way of pursuit

of public health and policy concerns and encouraged the use of TRIPS

flexibilities.



Argentina referred to the call for a Development Agenda and said that in

light of this call all norm-setting bodies have to take into account the

development dimension and to ensure that norm-setting exercises do not run

counter to policies of developing countries. Both pre-grant and post-grant

flexibilities must be safeguarded, said Argentina. The proposal to narrow

discussion to 4 issues is not consistent with the development dimension as

it will lead to loss of flexibilities. These provisions provided for in the

Casablanca statement are proposals by the US and Japan and involve core

aspects of the patent regime. Under the TRIPS agreement there is flexibility

to establish the substantive aspects of patents, but following the

Casablanca approach, the developing countries cannot make proposals of

interest to them.



Argentina also expressed concern over the manner in which the consultations

occurred and said that the Casablanca statement is not a balanced one as not

all member states had been invited, participants expressed views in their

personal capacity and some disassociated themselves from the outcome of the

meeting. This should not happen again. A new SPLT should not contradict the

DA. It indicated its agreement on behalf of the FOD Group to work if all

relevant matters and concerns of member states are considered on an equal

footing and a balanced approach is adopted.



Venezuela, Iran, South Africa, Brazil and Egypt endorsed the statement made

by Argentina on behalf of the Group of Friends of Development. India and

Chile were also not in favour of the limited package.



Brazil endorsed the statement by Argentina and said that this agenda item

was both a matter of substance and procedure. Brazil said that it had

disassociated itself from the Casablanca process. It also said that

harmonization may be a euphemism for standardization that is not

appropriate. It added that harmonization was in opposition, to a certain

extent, to its belief that patent laws should be in line with the national

interests of each country. However, despite that, Brazil said that it had

supported going forward. But it said that it did not believe that it is

appropriate to proceed on a small number of issues, as this might contribute

to the misunderstanding over this form of "harmonization."



The Chairman after hearing the different views on the subject matter

indicated that it was difficult to provide a summary on the direction of the

future work programme and the matter can only be clarified in a more

informal setting. Informal consultations on this matter were expected to

continue.



(* With inputs from Thiru Balasubramaniam and Ren Buc Holz.) +



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