[A2k] SUNS: Patents committee begins work with usual North-South differences

[Sangeeta]

> This message is in MIME format. Since your mail reader does not understand
this format, some or all of this message may not be legible.
--
[ Picked text/plain from multipart/alternative ]

WIPO: Patents committee begins work with usual North-South differences
Published in SUNS #6503 dated 25 June 2008

Geneva, 24 Jun (Sangeeta Shashikant) -- WIPO's Standing Committee on Patents
(SCP) began its week-long session on Monday, with many developing countries
calling for an in-depth discussion on the "Report on the International
Patent System" prepared by WIPO.

Several developing countries were of the view that the Report could be
better balanced, could consider additional issues (compulsory licensing
exceptions and limitations to patent laws, patents and standards,
anti-competitive measures, opposition) and be further revised following
comments from members and other stakeholders.

Discussions at the SCP have been at a stalemate for the past few years.
Developed countries are pressing for concluding negotiations on a draft
substantive patent law treaty (SPLT) based on a limited number of issues of
interest to them.

Developing countries on the other hand want the scope of negotiations on the
SPLT to be wider, to also include issues of concern to them.

Discussion on a Secretariat report on the patent system was seen by the WIPO
General Assembly as a way to build a better atmosphere at the SCP so that it
can agree on developing a new work program.

Some developing countries noted that any work programme developed must
address issues that concern developing and developed countries.

Group B (composed of industrialized countries) however seemed keen to
develop a work programme on the basis of a selected number of issues without
engaging on a discussion on all issues in the Report. Their main aim is to
initiate processes to further the harmonisation of patent laws. Several of
its members put forward improving the efficiency of the patent system
(including its search and examination capacity) and reducing the burden of
patent offices as reasons for harmonisation.

At past SPLT negotiations, Group B had proposed that the SPLT focus on 4
issues (prior art, grace period, novelty and inventive step). However this
approach was rejected by developing countries.

Developing countries have wanted the SPLT negotiations to also include
policy space for flexibilities; exclusions from patentability; exceptions to
patent rights; anti-competitive practices; disclosure of origin, prior
informed consent and benefit sharing in relation to genetic resources and
traditional knowledge; effective mechanisms to challenge the validity of
patent; sufficiency of disclosure; transfer of technology and alternative
models to promote innovation.

Group B also insisted that the work-programme of the SCP should not
duplicate work in other WIPO committees in particular work in the Committee
on Development and IP (CDIP) and in the Intergovernmental Committee on
Genetic Resources, Traditional knowledge and Folklore (IGC).

Several developing countries have voiced reluctance to move towards the
further harmonisation of national patent laws, with some indicating that it
was premature to select issues and begin negotiations on harmonisation. Some
questioned the very need and benefit of such harmonisation for developing
countries.

The developed countries' suggestion to limit the mandate of the SCP was also
not accepted by developing countries such as Brazil.

At Monday's SCP meeting, Brazil said it was important to realise that the
SCP was meeting after years without agreement on efforts for substantive
patent law harmonisation based on a reduced list of items.

Brazil supported proceeding on the basis of the report in a gradual mode and
without haste. It said the issues are many, complex and dense as indicated
in the report and it favoured an open and inclusive approach that does not
attempt upfront to produce any commitments for treaties.

It said guidelines were needed to enable easy discussions without an attempt
to reach agreement or make any hard conclusions. It proposed a "substance
driven discussion" - with a view to "progressive development to a new
consensus to a work programme for the SCP". This would lead to a discussion
on whether there was a need to move forward on harmonizing certain features
of the patent law system.

It further said that a case for "change" had to be made and substantiated
and this was a "new starting point", adding that it would not support being
selective of some issues and narrowing the focus of discussion.

Brazil wanted an open discussion on the report, with comments from all
segments, i. e. academics, NGOs, private enterprises and all other
stakeholders, adding that this would enhance the validity of the SCP.

Brazil also observed that the Annex to the Report contained a matrix on
national provisions for 7 issues (Prior Art; Novelty; Inventive step
[obviousness]; Grace Period; Sufficiency of Disclosure; Exclusions of
Patentable Subject Matter; Exceptions and Limitations of the Rights). Four
of these are issues proposed by Group B.

Brazil questioned why and how these issues were considered essential ones to
be examined in such a way. It hoped the intention was not to provide a new
listing of issues in the same vein as the ill-fated talks of the previous
SPLT meetings.

Brazil said important issues such as anti-competitive practices, transfer of
technology and patent standards are not included in the list and said that
these issues should also be integrated into the matrix of national
provisions.

Algeria on behalf of the Africa Group also recalled that members were coming
from a position of a deadlock. It wanted to see SCP working from a balanced
agenda as it was difficult to discuss some issues without touching other on
other issues. The report needed in-depth examination.

India said that while it recognized the quest for harmonisation, it also
supported the "harmonisation of the aspirations of developing countries". It
did not necessarily agree with all the indicative conclusions in the report,
but welcomed discussion, endorsing Brazil's proposed method of work on the
Report.

Pakistan said that the Report reflected some concerns of the countries
objectively while on other issues more work is needed. The Secretariat could
come up with another document that covers all the issues in totality, after
the members discussed the report. El Salvador said it would have liked to
see more commentary on the use of compulsory licenses.

Nigeria said that while there is a mix of issues in the Report, in effect it
stressed harmonization of patent laws but harmonization is against the
interests of developing countries. Issues of importance to developing
countries include issues of development and flexibility, exclusions from
patent law, transfer of technology, alternative models of innovation.

US on behalf of Group B expressed hope for a detailed work plan for the SCP,
adding its support for the harmonization of patent laws as this would bring
benefits such as increase in the number of applications, reducing backlogs,
improving predictability for applications and so on. The adoption of the 45
Recommendations of the Development Agenda augurs will for the SCP.

Slovenia on behalf of the European Communities stressed the need to define a
clear work program, adding that since the last SCP there were important
developments and achievements.

References to cross-negotiations between different WIPO committees by
developed countries prompted Brazil to respond that if the SCP is to achieve
a "consensus outcome" then there would have to be "an inner balance within
the patent discussion itself." Otherwise this will not lead to a balanced
outcome of North-South perspectives and private and public interests. It is
fundamental to achieve this balance in the work plan.

China remarked that disclosure of origin should be a part of discussion on
substantive patent law. This led the US to respond that duplication of
efforts should be avoided; adding that the IGC is already discussing the
issues of Genetic Resources and Traditional Knowledge while the CDIP is
overseeing implementation of the 45 Recommendations including technology
transfer and open collaborative research and that while waiting for the
Committee to make recommendations, the SCP should not "short circuit" the
process.

India responding to the US statement countered that disclosure of origin has
attracted a critical mass in the WTO and when discussing "prior art" (an
issue proposed by Group B) the issue may concern matters that exist in the
jurisdiction of another committee.

It also referred to the recommendations of the Development Agenda on
norm-setting which speaks about promoting flexibility and economic
development of developing countries and not constraining policy space for
developing countries; and added that SCP discussions had to be compatible
with DA recommendations.

It also said that preconceived ideas should be avoided as harmonisation is
not the only way to produce outcomes. Other means can be used, like creating
user friendly systems that promote the objectives without (necessarily
having an) instrument.

The Chair, Maximiliano Santa Cruz from Chile concluded the first day by
saying that whatever work program that is agreed must be balanced, take into
account the interests of users, holders, developed countries and developing
countries.

The Chair told members to keep an open mind and to not exclude topics from
the discussion including the 45 Recommendations of the Development agenda,
adding that the Report could have additional topics added to it. +



--