[Ip-health] KEI General Statement at WIPO SCP 14

[Thiru Balasubramaniam]

http://keionline.org/node/770

KEI Statement at WIPO SCP 14
By James Love
Created 25 Jan 2010 - 10:42am

Dear Chairman,

Congratulations to the Chair and the Vice Chairs for their elections.

KEI is an NGO that focuses on new thinking about innovation, and also
the protection of consumers.

Our comments will focus on the proposal by Brazil to address the SCP
work program on patent limitations and exceptions, as set out in SCP/
14/7.

KEI supports all of the elements of work set out in paragraphs 25 to
27 of SCP/14/7, which we see as logical and useful steps to begin an
empirically based discussion of patent limitations and exceptions,
focused on practical concerns.

To this end, and considering also the several reports already prepared
by the Secretariat, KEI would like to discuss four issues:

First, with respect to access to medicines, Brazil has called
attention to the lack of policy coherence in a world where at one
moment countries endorse the use of compulsory licensing to promote
access to medicines for all, and in separate fora criticize developing
countries for actually considering or issuing such compulsory
licenses. If the compulsory licensing of medicines is truly supported,
it should not be subject to bilateral and unilateral trade pressures.
What role if any can WIPO play in addressing this lack of policy
coherence? Perhaps the countries most committed to bilateral and
unilateral trade pressures could be asked to elaborate the rationale
and criteria they use to punish countries that simply try to carry out
the mandate of paragraph 4 of the Doha Declaration of TRIPS and Public
Health, and to explain why they believe such pressures are in fact
consistent with the Doha Declaration on TRIPS and Public Health and
the WHO Global Strategy on Public Health, Innovation and Intellectual
Property, as set out in WHA61.21 [1]. We agree also with Venezuela
that the SCP should consider issues such as the treatment of goods in
transit, for cases where products with different patent landscapes
move in international trade.

Second, KEI suggests in developing information on state practices, the
SCP focus on way that some countries, such as the United States,
implement limitations and exceptions to remedies associated with the
exclusive rights of patent, with a focus on the flexibilities found in
Articles 44.1 and 44.2 of the TRIPS, including cases where non-
voluntary authorizations to use patents replace injunctions to enforce
exclusive rights. (See for example, the U.S. Supreme Court decision
eBay v MercExchange [2], or 28 USC 1498 [3])

Third, negotiators for 38 countries are meeting, in secret sessions in
Mexico this week to consider a new trade agreement on the enforcement
of intellectual property rights. We do not know if this secret
agreement will address the enforcement of patents. If so, the SCP
should ask the countries involved to make the negotiating text of the
ACTA public, so its ramification for the patent system can be
discussed at the next meeting of the SCP. KEI also strongly objects to
the lack of transparency of the ACTA negotiations, and the degree to
which consumer interests and voices and many developing countries and
have been marginalized in the ACTA negotiation.

Four, with respect to patents on standards, KEI endorses the proposals
for WIPO to consider a protocol on disclosures of assertions of patent
rights as they related to proposed standards. These include
suggestions that a failure to constructively disclose assertions of
patent rights in a standard should eliminate remedies to enforce the
patent, against relevant implementations of that standard. Such a
protocol, perhaps within the PCT or a standalone instrument, would
make it easier to develop standards, including the open standards that
are increasingly important for innovation.

Source URL: http://keionline.org/node/770

Links:
[1] http://apps.who.int/gb/ebwha/pdf_files/A61/A61_R21-en.pdf
[2] http://en.wikipedia.org/wiki/EBay_Inc._v._MercExchange,_L.L.C.
[3] http://www.law.cornell.edu/uscode/28/usc_sec_28_00001498----000-.html

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Thiru Balasubramaniam
Geneva Representative
Knowledge Ecology International (KEI)
thiru@keionline.org


Tel: +41 22 791 6727
Mobile: +41 76 508 0997