[A2k] WIPO: 'Friends of Development' list issues for work program on patents

[Sangeeta]

SUNS #6007 Thursday 13 April 2006

WIPO: 'Friends of Development' list issues for work program on patents

Geneva, 12 Apr (Sangeeta Shashikant) -- The group of Friends of Development
(comprising  14 developing countries) has presented, on the second day of a
three-day informal session (10-12 April) of the WIPO Standing Committee on
the
Law of Patents (SCP), a list containing nine issues for the work program of
the
next ordinary session of the SCP.

The Friends of Development group (FOD) identified the nine issues contained
in
the list as being issues of concern to developing countries.

The nine issues listed are: Development and policy space for flexibilities;
exclusion from patentability; exceptions to patent rights; anti-competitive
practices; disclosure of origin, prior informed consent and benefit-sharing;
effective mechanisms to challenge the validity of patents; sufficiency of
disclosure; transfer of technology; and alternative models to promote
innovation.

While several developing countries supported this list, some developed
countries
objected to the idea that the work programme of the ordinary SCP meeting
should
address all of these topics.

The informal SCP session is being held to design a work programme for the
regular SCP following a recently held Open Forum on the Draft Substantive
Patent
Law Treaty (SPLT), as mandated by the 2005 WIPO General Assembly decision
(see SUNS #6006 dated 12 April 2006).

The US and Japan also presented on paper their unaltered and long-held
position
that the SCP work programme should prioritise the issues of  definition of
prior
art, grace period, novelty and inventive step in discussing the draft SPLT.
This
position has been rejected on several occasions by developing countries. At
this
meeting as well, that proposal has not garnered support from developing
countries.

As countries hung on to their positions, the Chairman of the informal
session,
Usman Sarki of Nigeria, made repeated appeals for countries to ameliorate
their
positions but his appeal was met on several occasions with silence from the
floor.

Towards the end of the meeting, several suggestions were made by countries
such
as China, India and Singapore to bridge the different positions.

At the start of the second day of the informal SCP session,  Francis Gurry,
the
WIPO Deputy Director-General in charge of patents, provided some
clarification
as to what could be encompassed in a work programme of the ordinary SCP
session. He said that the work programme should be understood in the
broadest
possible sense, and that it could include two sorts of activities -
normative
activities and non-normative activities.

As far as normative activities are concerned, he said that it could be in
the form of
a treaty or soft law and within that there may be recommendations or
resolutions.

In the non-normative sphere, he said that diversity could be included - for
example, it could include conferences, information meetings, studies, papers
or
guides, whether prepared by the International Bureau or under the auspices
of the
International Bureau by external consultants. There could also be projects
such as
the traditional knowledge digital libraries, databases or a wide range of
activities
relating to technical assistance. He concluded by saying that all is
possible.

The Chairman recalled some suggestions that were made on the first day of
the
informal SCP session (on Monday). He referred to the Indian proposal that
was
backed by the UK, i.e. that joint meetings be held of the Intergovernmental
Committee on Intellectual Property and Genetic Resources, Traditional
Knowledge and Folklore (IGC) and the SCP, if issues are to be divided
between
the two fora. The other proposal was that the work programme be designed on
the
basis of the papers presented at the Open Forum.

Argentina, on behalf of the FOD, said that the first suggestion was not a
proposal
that would resolve all concerns. It added that all issues of interest should
be
tackled in the SCP, either as normative or non-normative activities.

It went on to read the list of issues (which was later presented on paper)
for the
work programme of the SCP, taking into account the discussion of the Open
Forum. The list contains nine issues: development and policy space for
flexibilities; exclusion from patentability; exceptions to patent rights;
anti-competitive practices; disclosure of origin, prior informed consent and
benefit-sharing; effective mechanisms to challenge the validity of patents;
sufficiency of disclosure; transfer of technology; and alternative models to
promote innovation.

South Africa, Kenya, Egypt and Venezuela spoke in support of the list.

Egypt said that the Open Forum is an important pillar, as it paves the way
towards
creating an inclusive and transparent process for the SCP. Thus, the
discussions in
the Open Forum could not be ignored, Egypt said, stressing that it needed to
be
translated into concrete elements. This is what the FOD group had done,
Egypt
added.

Although the US had said that it was open to other proposals, both the US
and
Japan reiterated their position of having a limited package of four issues
be
discussed at the SCP.

India once again clarified that its proposal was with regards to
"modalities" and
not the content.

The United Kingdom recalled that the EC and Group B (consisting of developed
countries) supported the four items proposed by the US and Japan. It
referred to
the suggestion made by India, saying that the idea was that the IGC and SCP
meetings would be held back-to-back and that an overlapping session could be
held to look at what is normative and non-normative as well as decide on
what
needs to be discussed in the SCP and the IGC.

This proposal suggests that the UK is diverting the discussion back to the
six items
that were presented at the last SCP session held in June 2005 and on which
there
was no consensus. The 6 items consist of the 4 items proposed by Japan and
the
US (to be discussed in the SCP) and another 2 items on sufficiency of
disclosure
and genetic resources to be discussed in the IGC.

Brazil reiterated that the programme of the Open Forum was the outcome of
negotiations among members. It also recalled the position of the FOD group
from
last year that if the SCP decides to continue with the proposed SPLT, it
should
consider the entire text together.

Brazil added that the list presented contains developing-country issues in a
harmonization process. It also said that all patent issues should be dealt
with in the
SCP even though it may have an element of another fora, because the other
fora do
not have the mandate to deal with harmonization of patent standards.

Brazil also provided context for the list that was presented, stating that
the issues
in the list are elements of a patent system that provide policy space,
adding that the
existing patent system provides for a set of flexibilities and margin for
countries to
work within their national context and that the existing policy space should
not be
eroded. It further said that for a balanced outcome, other issues have to be
included. Just adding on the disclosure of origin requirements are not
enough to
provide comfort to engage in a serious debate of harmonisation, Brazil
added. It
said that it would not prejudge the outcome of the SCP, i.e. that some
issues were
normative while others were not.

Singapore suggested that the discussion in the SCP could be divided into two
parts. The first part could discuss issues that have matured, while the
second part
could discuss a lesser-matured set of issues. As an example, it said that
the
US/Japan set of four issues could be discussed in the first part (which it
claimed
are more matured in discussion), and the other issues proposed could be
dealt with
in the second part.

China made the suggestion that the four issues presented by the US and Japan
be
discussed as well as four other issues of concern to developing countries.
The
other four issues it proposed are exclusions from patentability; disclosure
of origin,
prior informed consent and benefit-sharing; effective mechanisms to
challenge the
validity of patents; and sufficiency of disclosure.

Prior to making this suggestion, on another occasion, China presented its
own
view on harmonization of patent standards. Looking at all issues together is
very
ambitious, China said. It proposed concentrating on pre-grant patent issues.
Earlier, it also proposed dividing discussions into pre-grant and post-grant
patent
issues.

Pakistan said that one area was about technical details, which pertains to
the
efficiency of the system while the other area was about development concerns
relating to the impact on society. As both are genuine concerns, there is a
need to
clarify the issues. It added that while the Open Forum was useful, it was
essentially
based on monologue - there were presentations but not enough time for
discussions and elaboration. Thus, the common denominator on the way forward
could be for the SCP to have a work plan that does more work in clarifying
each of
these issues.

India presented a suggestion that besides the four issues raised by the US
and
Japan, there were some specific issues from the list of the FOD that could
be part
of the discussions. It identified issues such as exclusions from
patentability,
exceptions to patent rights, disclosure of origin, prior informed consent
and
benefit-sharing, effective mechanisms to challenge the validity of patents,
and
sufficiency of disclosure as items that were sufficiently specific to be
discussed
together with the limited package of 4 issues. The other issues, such as
transfer of
technology, alternative models to promote innovation, and anti-competitive
practices could be discussed under the heading of "development and policy
space
for flexibilities" separately, it said.

Brazil outlined some principles on which discussions must continue in the
SCP.
One is that all items should be treated on an equal footing. The items
should be
considered with an equal mind and with intellectual curiosity, it added. It
also
indicated that members should not prejudge the outcome of the discussions
that
will be held in the SCP. It added that it is difficult to say which issues
have
matured and which have not, pointing out that there were still divergences
on the
items in the limited package.

The final day of the informal SCP session (Wednesday) is expected to
consider
some of the suggestions on how to move forward on the work programme of the
ordinary SCP session.
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