Bridges Weekly Trade News Digest • Volume 9 • Number 20 • 8th June 2005
WIPO Members Fail To Reach Agreement At Patent Harmonisation Meeting
Differences between developed and developing countries on how to multilaterally harmonise patent law and procedures widened at the recent meeting of the World Intellectual Property Organisation’s (WIPO) Standing Committee on the Law of Patents (SCP). The two camps are proposing conflicting strategies on how to proceed with patent harmonisation.
No agreement was reached during the 1-3 June meeting, making it effectively a success for the group of mostly developing countries that oppose the creation of a separate negotiating track to move ahead on a limited selection of issues related to patent harmonisation.
Fiery debate at SCP meeting
The SCP, WIPO’s committee on patent harmonisation, meets once or twice annually. During the last couple of years this committee has attempted to negotiate a draft ‘Substantive Patent Law Treaty’ (SPLT), albeit without much success. Such a treaty would govern ’substantive patent law,’ i.e. patentability criteria, examination process, granting and recognition or rights, etc.
The recent meeting went one day longer than the scheduled two days due to large differences over the scope of such a future treaty. One of the groups comprised largely of developed countries, wants to move ahead on a ‘priority list’ of selected issues that would serve as the base of an SPLT. The other favours a more inclusive approach that takes into account broader development concerns.
Casablanca process dismantled
The ‘priority list’ issues identified by the developed country-dominated bloc include prior art examination, grace period, novelty and inventive step within the SCP. Sufficiency of disclosure and genetic resources would remain the purview of a different WIPO committee on intellectual property and genetic resources. The approach is based on the countries’ views as well as on the statement adopted at the end of the informal consultations on patent harmonisation held in February by WIPO Director-General Kamal Idris in Casablanca, Morocco (SCP/11/3). This informal process had been heavily criticised by developing countries (see BRIDGES Weekly, 23 February 2005), especially by a group of 14 developing countries which have been calling for a holistic ‘development agenda’ in WIPO, for excluding several members of the organisation, particularly developing countries (the group is known as the ‘Friends of Development’ (see BRIDGES Weekly, 13 April 2005). Following the February meeting, Brazil distanced itself from the outcome of the ‘Casablanca Process,’ as did Chile and India soon after.
Toward an inclusive approach
An alternative approach was put forward by some developing countries, which argued that additional issues such as patent exceptions, patent quality, disclosure requirements, and incorporation of the WTO’s Doha Mandate must be also addressed in any process leading to further patent harmonisation.
Brazil submitted a statement to the meeting on behalf of the Friends of Development in which it specifically called for an "inclusive approach" to patent harmonisation. It stated that negotiations on the SPLT should be held "…on the basis of the draft treaty as a whole, including all the amendments that had been tabled by Member States to ensure a balanced treaty on the substantive harmonisation of patent law that will address the concerns of all parties to the negotiations…"
The fact that the meeting did not move the harmonisation process forward by articulating specific recommendations for WIPO’s September General Assembly amounts to a success for the countries that reject the Casablanca Process. Since a separate negotiating track has not been created, further talks will have to address all the issue areas involved in the SPLT, including those of particular interest developing countries. However, no further meetings of the SCP have been scheduled.
Some sources reported concern that the developed countries that had sought to pursue their own ‘priority list’ of interests might now try to move ahead with patent harmonisation outside WIPO. If this happened, not only could developing countries end up with less influence over the process (calling into question the role of WIPO), but also it would also raise serious concerns about the transparency of patent policy processes in the future.
ICTSD reporting; "Agreement Out Of Reach in WIPO Patent Harmonisation Talks," IP WATCH 3 June 2005.