News and Analysis • Volume 12 • Number 24 • 2nd July 2008
After 3-Year Hiatus, WIPO Patents Standing Committee Launches New Programme of Work
The WIPO Standing Committee on the Law of Patents (SCP), under the chair of Maximiliano Santa Cruz (Chile), met from 23-26 June to discuss how the SCP should continue its work. The meeting, which followed a three-year break in the talks, occurred amidst much speculation about the fate of the negotiations on the Substantive Patent Law Treaty (SPLT).
Discussions at the SCP have been at a standoff since June 2005, due to differences in opinion between developed and developing countries, particularly as to how the SCP should continue its work with regards to the SPLT, a treaty that would expand the minimum standards agreed in the WTO’s Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).
Developing countries, led by a group called the Friends of Development, argue that the negotiations on the SPLT should have a wide scope, and should not be limited to prior art, grace period, novelty, and inventive step, as advocated by developed countries. Instead, they argue that the treaty should also include areas of interest to them, such as provisions on transfer of technology, anti-competitive practices, public interest flexibilities, as well as specific clauses on principles and objectives.
After the three-year impasse in the SPLT negotiations, and pursuant to a decision by the WIPO General Assembly last October, the WIPO Secretariat prepared a report on the International Patent System (SCP/12/3) to serve as a basis for future deliberations and to lay out a programme of work. The report was not meant to draw any conclusions; instead, it was intended to cover the needs and interests of all members, and to make reference to the WIPO Development Agenda.
The Secretariat’s report reviews the existing situation in the patent system and covers, in the main, three distinct issues: the economic rationale of the patent system and its role in innovation and technology dissemination; organisational aspects of the patent system; and policy considerations and development concerns. For a number of observers, the report contained interesting and open reflections on the future of the international system. Indeed, the report has been described as offering a fresh look at new issues, incorporating recent critiques on how the system actually operates, particularly with respect to developing countries.
The examination of the report and the future work programme of the SCP was the main subject of last week’s meeting. Yet, from the start of the gathering, it was evident that countries had not overcome the old stalemate and were not ready to engage in in-depth discussions of the report. Members did, however, show readiness to exchange views on how to allow the SCP to have a clearer and more forward-looking programme of work.
The initial reactions to the report were mixed. Some delegates shared the view that the report discussed key elements of the patent system, whereas others felt the report was biased in favour of the current patent system, and that it only made passing reference to the current global debate over whether the existing system is able to meet development and public policy objectives. In the view of many, the report, without being comprehensive, reflected a variety of complex and inter-linked issues, thereby reflecting the diverse and contrasting interests of those who have a stake in the treaty negotiations.
Nigeria, in particular, commented that, while the report covers a mix of issues, it effectively focuses on harmonising patent laws, a goal that is essentially at odds with the interests of developing countries. To that end, Nigeria maintained that important issues for developing countries included flexibilities, development objectives, technology transfer, alternative models of innovation, and exceptions and limitations. India, for its part, acknowledged the importance of the quest for harmonisation, but strongly supported the “harmonisation of the aspirations of developing countries.” Whilst India did not agree with all the implied conclusions of the report, it welcomed the broad discussion on the issues.
Brazil, a leading member of the Friends of Development, contended that a gradual approach needs to be taken in the negotiations, and proposed that discussions on substance should drive the development of a new consensus on the SCP work programme.
For their part, developed countries favoured a work programme based on a selected number of issues aimed at the further harmonisation of patent law; this is the issue that was at the heart of the three-year impasse in the work of the SCP. This was resisted in the past by developing countries under the perception that this process of selected harmonisation would lead to an unbalanced expansion of the minimum standards contained in the TRIPS Agreement.
The US restated its support for the harmonisation of patent law, affirming that such a move would allow for benefits for all such as, for example, an increase in the number of applications, reduction of backlogs, and the improvement of predictability for patent applications. The US expressed its hope that the meeting could agree on a detailed work plan for the SCP.
From the outset, the chair of the meeting actively sought to reach a consensus on the basis of a broad understanding of the future work programme of the SCP. This consensus was finally achieved when members agreed that the Secretariat’s report constituted a good basis for discussion and that it should be re-examined at the next session of the SCP. In addition, the SCP identified a non-exhaustive list of 18 issues that would remain open for further elaboration and discussion at the following session.
The SCP also requested that the Secretariat prepare preliminary studies on four issues perceived to be of interest to both developing and developed countries: dissemination of patent information; exceptions from patentable subject matter and limitations to rights; patents and standards; and client-attorney privilege.
The SCP further recommended that a conference be held on issues relating to the implications of patents on certain areas of public policy, such as health, the environment, climate change and food security. The conference would be convened in the framework of the SCP and, where relevant, would work in conjunction with other WIPO bodies.
Committee chair Maximiliano Santa Cruz, explained to Bridges that, in his view, last week’s meeting marked an important step forward: “This is a fresh start for the SCP. All Members showed a great deal of flexibility during the 12th session and demonstrated that, despite our differences we can have common goals. We have chosen to follow several paths towards agreeing on a Work Program for the SCP, including the preparation of preliminary studies on four important issues and the celebration of a Conference on patents and policy issues, which is quite a big deal considering that the Committee did not meet for three years.”
ICTSD reporting.