[Ecommerce] IP-Watch: Washington Patent Meeting Stirs Concerns

[Manon Ress]

I had posted on this list an announcement about a USPTO meeting on
patent harmonization but the announcement disappeared from the USPTO
website and people asked me if the meeting was still on.  See:
http://lists.essential.org/pipermail/ecommerce/2005q1/001543.html
Here's a story in IP-Watch about the meeting.
Manon

http://www.ip-watch.org/weblog/index.php?cat=3D1&res=3D1024_ff&print=3D0

27/1/2005
Washington Patent Meeting Stirs Concerns

by William New @ 8:48 pm

A meeting next week of the world=92s top patent-producing nations to try
to bring their patent regimes closer together is raising concerns among
developing countries and others who perceive it as a threat to efforts
to address development issues at a multilateral level.

The closed meeting, on which public details are scarce, is expected to
include only the United States, the European Union, Japan, Canada and
Australia. The U.S. Patent and Trademark Office (USPTO) is hosting the
meeting.

=93This exploratory meeting will be an important step in getting
substantive patent law harmonisation back on track,=94 USPTO
undersecretary and director Jon Dudas said in a statement earlier this
month. =93Harmonisation promises to bring substantial benefits such as
consistent patent examination standards throughout the world, reduced
patent office workloads and higher patent quality. The sooner we can
agree on a basic framework, the sooner we can begin providing these
benefits to all patents stakeholders =96 patent applicants, patent offices
and the public alike.=94

Several developed nation and private-sector sources said the meeting is
being convened to give the patent offices of key developed nations a
chance to continue working to harmonise their patent laws. The offices
have been working for years to streamline procedures for companies and
other users of patent laws.

=93We were invited by the USPTO to see what avenues could be pursued,=94
said a Canadian official. Canada=92s delegation will be led by David
Tobin, Canada=92s commissioner of patents, registrar of trademarks and
chief executive officer of the Canadian Intellectual Property Office.
=93Patent harmonisation is an issue of importance to Canada. These are
frank discussions on how we can get these discussions going. It=92s really
a dialogue. There are no preconceived ideas.=94

But sources from some developing countries and consumer groups have
raised concerns that the meeting is being held in part to threaten the
Geneva-based U.N. World Intellectual Property Organization (WIPO) and
certain large developing countries that have pushed for a development
agenda within WIPO. The fear is that the larger economies, and the
United States particular, are trying to show they can take the
negotiations outside of WIPO if that organization cannot keep the talks
on track by keeping developing countries in check. That would leave
developing countries out of any agreement reached by the larger economies.

=93My opinion is that the U.S. is convening this meeting to show that it
is willing to move its agenda of patent harmonisation outside of WIPO if
developing countries continue to oppose it at WIPO, thus putting
pressure on developing countries to be more flexible at WIPO itself,=94
said one developing nation official. =93More importantly, the U.S. wants
to corner the WIPO secretariat and to make the secretariat put more
pressure on developing countries to go along the US agenda at WIPO in
order to save multilateralism.=94

However, some say such an approach could backfire on the developed
countries, as key developing countries are not keen to participate in
patent harmonisation efforts to begin with, while it is in the interest
of developed countries to get as many countries on board as possible.

=93It may be a case of =91be careful what you wish for,=92=94 said James Lo=
ve,
director of the Consumer Project on Technology (CP Tech). =93If the U.S.
was really to take its marbles home [choosing to negotiate outside
WIPO], it=92s not clear that it would be able to use WIPO anymore. And the
U.S. has used WIPO effectively.=94

Patent laws currently are the subject of negotiations at WIPO, which
traditionally has shown sensitivity toward the major
intellectual-property producing members, namely the United States,
European Union and Japan. WIPO has come under increased pressure to
consider development goals of poorer countries in negotiations. It is
unclear whether any WIPO officials will attend the meeting in
Washington, scheduled for Feb. 3 and 4. But the organization does not
oppose the meeting, arguing that it is within the rights of any member
country to hold meetings.

=93Any member state is free to organize a meeting on any subject of their
choosing, whether it is the subject of a WIPO negotiation or not,=94 a
WIPO spokeswoman said this week. =93That=92s standard.=94

Some questions had been raised over whether the European Union would
embrace the Washington meeting. But European Union officials plan to
make a sizeable turnout for the meeting, an EU official said this week.
Delegates from the European Commission, Luxembourg in its role as
current EU president, and the secretariat of the European Council (the
government representatives) will attend. =93The massive participation of
EU institutions shows that we are very interested and that our approach
will be constructive,=94 the official said.

Under discussion at WIPO is a proposal for a =93substantive patent law
treaty=94 (SPLT) aimed at harmonising substantive aspects of national
patent laws. One non-participant source said the slow-moving treaty
talks are expected to be on the meeting agenda, along with the WIPO
Patent Cooperation Treaty and possible alternatives for the
international filing of patent applications.

Last fall, WIPO=92s annual General Assembly agreed in principle to
consider development objectives proposed by Argentina, Brazil and
others. Under this Development Agenda, meetings on the subject are
planned this year, beginning in April.

According to a WIPO spokeswoman, member states agreed at the October
assemblies that the dates of the next session of the Standing Committee
on Patents (the forum which is discussing the draft SPLT) =93should be
determined by the director general following informal consultations that
he may undertake.=94

The director general is holding informal consultations on the future
work programme of the committee in February in Morocco, the spokeswoman
said. =93As the draft SPLT is being discussed in the [patent committee, it
may be expected that the consultations will address that issue,=94 she
said. =93Naturally, being informal consultations, it is not a meeting and
it is not an informal session of the [committee].=94

Suspicion runs deep on both sides of the patent harmonisation issue. One
Washington-based intellectual property lawyer accused Brazil and others
of an =93effort to weaken WIPO=94 as well as the Geneva-based World Trade
Organization by using IP issues to push a broader agenda.

The argument for such an accusation is that despite the fact that Brazil
has good intellectual property laws and is nearly in compliance with key
WIPO treaties, the government recognizes that better intellectual
property rights protection is important to the United States and so can
be a bargaining chip in negotiations, he said.

But CP Tech=92s Love countered that developing countries are just trying
to make WIPO more like a U.N. body where developing countries=92 concerns
get equal weight. =93WIPO is the U.N. agency to do these things,=94 he said=
.
=93What people are trying to do right now is make WIPO a U.N. agency.=94 He
called the Washington meeting =93really an attack on WIPO,=94 adding, =93Th=
is
is really like unilateralism.=94

Troy Groetken, president of the (U.S.) Association of Patent Law Firms
and an attorney with McAndrews, Held and Malloy in Chicago, said the
meeting is not intended to threaten others but rather stems from major
patent producers =93saying we need to move forward even though we agreed
to disagree with developing countries.=94

The purpose of the meeting is to continue coordination on patent laws in
order to increase predictability and ease procedures for patent
applicants, =93so that patenting done on a global scale is done more
efficiently,=94 Groetken said. Examples of differences to be worked
through by the offices include searches of each others=92 records, fees,
and similar application requirements.

Developing countries have placed too much emphasis on intellectual
property issues as a way to address broader development goals, he said,
adding, =93It cannot be a resolution for so many other economic issues for
developing countries.=94 What developed countries want, he said, is for
developing countries to develop their own systems and to interact with
developed countries on the issue =93at every opportunity.=94 But, he added,
they should not lament when developed countries are able to make
progress on their own.

Groetken suggested that some developing countries may oppose the meeting
because they are resisting adherence to intellectual property laws that
could diminish their lucrative gray markets. He also said some countries
may recognize the value of adopting intellectual property laws but have
been displeased to learn of new costs associated with it, such as using
developed country patent offices for patent searches and the like.

Ultimately, the concerns about the issue may be diminished by another
feature of the patent harmonisation issue, some say. That is, there is
little likelihood that the top patent-garnering nations will be able to
reach agreement among themselves. After all, they have been trying for
years and continue to be far apart. To proceed very far without new big
players China, India, Brazil and others seems unlikely.

--
Manon Anne Ress
manon.ress@cptech.org,
www.cptech.org

Consumer Project on Technology in Washington, DC PO Box 19367,
Washington, DC 20036, USA Tel.:  +1.202.387.8030, fax: +1.202.234.5176

Consumer Project on Technology in Geneva, 1 Route des  Morillons, CP
2100, 1211 Geneva 2, Switzerland. Tel: +41 22 791 6727

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N5 1RX, UK. Tel:+44(0)207 226 6663 ex 252. Mob:+44(0)790 386 4642. Fax:
+44(0)207 354 0607