[A2k] WIPO: Members fail to agree on work program on patents

[Sangeeta]

This is a multi-part message in MIME format.
--
--
[ Picked text/plain from multipart/alternative ]


SUNS #6008 Tuesday 18 April 2006



WIPO: Members fail to agree on work program on patents



Geneva, 13 Apr (Sangeeta Shashikant) -- Member states of the World
Intellectual

Property Organization (WIPO) on Wednesday failed to agree on a work program

for the ordinary session of the Standing Committee on the Law of Patents
(SCP),

and thus decided to refer the matter back to the WIPO General Assembly,
which

will meet in September.



Discussions on the work program of the ordinary session of the SCP collapsed
as

Members were unable to bridge their differences on what should form the
content

of the work program.



Differences emerged at the three-day informal SCP session (10-12 April)
primarily

over whether to treat the 13 issues before the informal session on an equal
footing

at the regular session of the SCP.



The failure to agree to a work program for the regular SCP led to the
decision by

Members that it was not worthwhile to continue to hold the regular meeting
of the

SCP, which was expected to be held in July, to begin work on the agreed work

program.



The 13 issues before the informal SCP session include the 9 issues presented
by

the group of Friends of Development (FOD, comprising 14 developing
countries)

and the 4 issues proposed by the US and Japan.



The 9 issues proposed by the FOD are: development and policy space for

flexibilities; exclusions 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.



The 4 issues proposed by the US and Japan are: definition of prior art;
grace

period; novelty; and inventive step.



The FOD said that they were prepared to proceed so long as all the items

(including the items presented by the US and Japan) are discussed on an
equal

basis at the ordinary session of the SCP. Stressing on the mandate given by
the

General Assembly decision, they also said that the outcome of the SCP
discussions

should not be prejudged.



Group B (comprising the developed countries) took the position that
discussing all

the nine issues on the list presented by the FOD, as well as the four items
proposed

by the US and Japan, on an equal footing at the ordinary SCP session was not
an

option. They were of the view that there must be some differentiation
between the

four items proposed by the US and Japan, and the other issues raised by the
FOD.



The US and Japan had also made it clear that the four items would be
considered

in the context of the proposed Substantive Patent Law Treaty (SPLT).



The proposed SPLT is about harmonizing patent standards and is expected to

establish new binding international standards in critical areas of patent
law such as

on issues relating to prior art, novelty, and inventiveness which have so
far been

left to the discretion of national legislation. It is a treaty, if
successfully negotiated,

will prescribe substantive standards that would determine whether an
invention is

patentable or not and the scope of patentability.



The main fear against this proposed treaty is that it will adopt standards
that are

being applied in the developed countries, but which may not necessarily suit
the

needs of developing and least developed countries and erode the existing

flexibilities that these countries have under the WTO's TRIPS Agreement, and
as a

consequence, the policy space needed for development.



Thus, the developing countries in WIPO and in particular, the FOD, have been

pushing hard to ensure that the concerns of the developing countries are not
set

aside in the harmonization process.



Attempts by developed countries to limit the discussion in relation to the
SPLT to

only the limited package of 4 issues of the US and Japan or to cluster the
issues in

a manner that would fast track discussion on the 4 issues while leaving
aside

issues of concern to developing countries, were apparent during the
three-day

informal SCP meeting.



Even on a matter of great interest to developing countries, i.e. the
disclosure of

origin requirement in patent applications to prevent misappropriation of
genetic

resources that is being debated in the WTO TRIPS Council as well as
considered

in the Convention on Biological Diversity processes, was not acceptable as a
topic

for discussion in the SCP.



Privately, several developing-country delegates expressed disappointment
that the

meeting could not reach an agreement and indicated that even in small group

discussions, the developed countries were not willing to take into account
the

concerns of developing countries.



An African delegate said that he fears that there would be repercussions on
the

work of the upcoming Intergovernmental Committee on Traditional Knowledge,

Genetic Resources and Folklore.



Another delegate from the FOD Group, acknowledged the possibility of a
backlash

on the WIPO Development Agenda, which is to be discussed in June. The WIPO

Development Agenda was launched by the FOD Group to mainstream

development in all of WIPO's activities.



The failure of this meeting makes the General Assembly (GA) in September a

crucial event for both the developed and developing countries. Besides the
work

program of the SCP, the renewal and recommendations of the "Provisional

Committee" that is considering the WIPO Development Agenda could also be on

the GA agenda, depending on the outcome of the June meeting.



Thus, the fate of the WIPO Development Agenda and how far it progresses
could

very much depend on whether an agreement is reached on the work program of
the

SCP, at the General Assembly.



On the morning of the last day of the informal SCP meeting (Wednesday),
which

was chaired by Ron Marchant, from the UK Patent Office, countries reiterated

their positions.



Argentina said that the FOD held the view that the mandate from the 2005
General

Assembly is to determine the SCP agenda on the basis of the issues that had
been

put forward, including the 4 items put forward by the US and Japan without

prejudice to the treatment of the items and outcome of the discussions.



Austria, on behalf of the European Community, said that the 4 issues
proposed by

the US and Japan were fundamental. It also said that they were ready to
include

issues related to exclusions from patentability, exceptions to patent
rights, and

sufficiency of disclosure, as these items should contribute to the
development of a

balanced patent system. On the issue of disclosure of origin, it said that
it was

ready to discuss it in the IGC, while issues relating to prior informed
consent and

benefit sharing are already being discussed elsewhere and thus duplication
is not

necessary.



The US raised concerns over the Argentina proposal that all the 9 issues
proposed

by the FOD were important and should be treated on an equal basis. It also
said

that its proposal is about working towards an SPLT and in this regard, was

prioritizing the work.



While the US insisted that a limited number of issues must be considered, it
was

clear from its statement that it was not really interested in expanding its
proposed

list beyond the four issues suggested by it and Japan. It indicated that it
was

flexible if it is clear that work would progress towards an SPLT on the
basis of the

four main issues proposed and a limited set of other issues on a multi-track

approach. The US added that having a disclosure of origin requirement within
the

patent system would be counterproductive.



Argentina emphasized the need to stick to the mandate and that all issues
must be

discussed and then a decision can be made on what is appropriate and what is
not

appropriate in relation to the SPLT. "We are straying away from the
mandate,"

Argentina said.



At this juncture, the Chairman interjected and said that the mandate is on
the

SPLT.



Brazil clarified that delegations could not simply refer to the title of the
decision of

the GA. While in the initial parts of the GA decision, reference is made to
the

SPLT, in the latter paragraphs it is clear in saying that a three-day
informal session

of the SCP will be held to agree on a work program for the SCP, Brazil
added.



Brazil said that it was ready to work on a work plan for the SCP, adding
that the

work program of the SCP is not a table of contents for the SPLT.



It agreed that the criteria for deciding should not be based on pre- or
post-grant

consideration. Brazil said that developing country concerns cannot be
classified as

pre- or post-grant. They are items of fundamental importance, it said. It
further

added that delegations did not have the mandate to take decisions for other
WIPO

bodies.



Pakistan, Kenya and Egypt took positions similar to that of the FOD.



One final attempt at conciliation was made by Thailand on behalf of the
Asian

group. It suggested that the first two days of the ordinary session of the
SCP could

discuss the limited package while in the remaining time the other issues
could be

discussed.



However, Switzerland on behalf of Group B said that a clearer distinction of
issues

was needed before there could be an agreement on the work program.



The EC reiterated its position and said that perhaps a fresh start may occur
at the

GA or one or two years later. It added that the differences were too wide to
be

bridged.



The meeting ended with the Chairman stating that it was perhaps premature to

move ahead with an SCP program, and the need to be clear as to whether it
was

better to suspend the process at the SCP for a while as it was not yet
mature.

+





--
[ image001.gif of type image/gif deleted ]
--