No agreement on future work of WIPO Patents Committee

By Sangeeta Shashikant (Third World Network), 4 June 2005

The Standing Committee on the Law ofPatents (SCP) at the World Intellectual Property Organization (WIPO) ended itsmeeting on 3 June 2005 without any agreement among Member States on how the future workprogramme of the committee should proceed.

The WIPO Secretariat had proposed the adoption of recommendations from aFebruary 'informal consultation' organized by WIPO's Director-General, Dr. KamilIdris, in Casablanca. This consultation meeting had called for the SCP to deal onlywith four issues in negotiations for a new substantive patent law treaty (SPLT).

The developed countries strongly supported the Casablanca statement to limitdiscussions in the SCP to issues of prior art, grace period, novelty and inventive step.

Issues proposed by developing countries particularly on disclosure and geneticresources had been sidelined by the Casablanca statement, which had proposed thatthey be dealt with by the Intergovernmental Committee (IGC) dealing with geneticresources and traditional knowledge.

This division along North-South lines persisted throughout the weeklong meeting.

On 2 June, intense negotiations took place on the 3-page summary prepared by theChair, before all the delegations agreed to it during an extended session on themorning of 3 June.

It had been agreed by delegations that since there was no agreement on how toproceed with the future work of the SCP, the summary should be factual, reflectingthe different positions adopted during the meeting.

Numerous developing country delegations were not agreeable to the structure of thefirst draft summary of the Chair, as it appeared that the views of countries mostlyfrom the industrialized world that supported the Casablanca statement were presentedin detail while the views of developing countries that opposed the Casablancastatement were stated in a limited manner which seemed to indicate that their positiondid not receive much support.

Argentina in particular pointed out that their concerns relate to the 'equilibrium'between the paragraphs which reflect the views of developed countries and theparagraphs which reflect the views of developing countries.

The negotiations over the Chair's summary focused on the precise wording andphraseology that should be used to reflect in a factual and balanced manner thediscussions that took place.

The text of the Summary of the Chair that was finally agreed upon explicitly statesthat discussions on the future work program for the SCP were held based on theCasablanca statement (document SCP/11/3) and the statement made by Argentina onbehalf of the Group of Friends of Development (comprising 14 developing countries)rejecting the Casablanca approach, which it criticized for fragmenting the issues(document SCP/11/4).

The summary also states that the 'Delegation of Argentina, speaking on behalf of the'Friends of Development' introduced document SCP/11/4. The delegation called fora balanced and inclusive approach to discussion on the Substantive Patent Law Treaty(SPLT). In this regard, it stressed the importance that issues of interest to all partiesto the discussion should be dealt with on an equal footing. All delegations should beallowed to make proposals on any matters of interest to them. The delegation recalled,in particular, that a balanced and inclusive SPLT should include, inter alia, clauses onpublic interest flexibilities, transfer of technology, curbing of anti-competitivepractices and bio-diversity (disclosure of origin). Many delegations expressedreservations with respect to the procedure and outcome of the informal consultationsheld in Casablanca. Several developing country delegations, including the delegationsof Chile, Colombia and India, opposed the approach of the Casablanca consultationsand supported the views set out in document SCP/11/4.'

The text then refers to the position of Group B countries expressed by the Delegationof Italy that 'it firmly believed that harmonization would benefit all stakeholders,including civil society, right holders and intellectual property offices.'

On the recommendations in the Casablanca statement, the Delegation stated in theSummary that it 'thought that it represented an effective way of structuring andprogressing the work of this Committee and of the Intergovernmental Committee onIntellectual Property and Genetic Resources, Traditional Knowledge and Folklore(IGC).

'Group B believed that that proposal represented a balanced work plan whichaddressed the interests of all Member States. It further stated that Group B lookedforward to advancing this work program both in this Committee and in the otherrelevant bodies of this Organization.'

The summary also reflects the position of the Delegations of Luxembourg speakingon behalf of the European Community and its Member States, Morocco, the Republicof Korea and Sudan which 'supported the views expressed by the Delegation of Italy'.

The views of the delegations of Sudan and Singapore (on behalf of the Associationof South East Asian Nations, ASEAN) countries are also noted in the Summary.

The paragraphs read as follows: 'The Delegation of Sudan emphasized that thebuilding of consensus should be observed. The Delegation of Singapore, speaking onbehalf of the ASEAN states that the close interface between the SCP and the IGC inaddressing both the definition of prior art, grace period, novelty and inventive step,and the sufficiency of disclosure and genetic resources in a timely and acceleratedmanner remain a key to the efforts of the SCP, and that it supported the creation ofa balanced and equitable international patent system that struck a balance between theinterests of users and right holders and those of consumers and society at large sayingthat the building of consensus should be observed.'

The Delegation of China put on record in the summary 'that the issue relating to thedisclosure of the origin of genetic resources in patent applications should beaddressed in the SCP.'

Following these general statements and noting the wide divergences in opinion on thefuture work program of the SCP, 'several proposals were made with a view to bridgethe existing divergences.'

'The Swiss delegation suggested an approach under which six issues (prior art, graceperiod, novelty, inventive step, sufficiency of disclosure and genetic resources) wouldbe considered in parallel in the SCP (prior art, grace period, novelty and inventivestep) and in the IGC (sufficiency of disclosure and genetic resources) and would, ifand when agreement was reached on them, be submitted together to a Diplomaticconference.

'Several delegations underlined the usefulness of that proposal while several otherdelegations opposed it.

'The Delegation of Brazil stressed that, in its view, the comprehensive proposal fromthe 'Friends of Development' took on board the positions of all countries, while beingopen to discussing a work plan that would seek to organize all issues of the draftSPLT as a whole into a manageable and effective program.

'The US stated that, in its view, the previous entire treaty document with additionalproposals was unmanageable, inefficient and unworkable and did not provide a viablemanner in which to proceed.'

This part of the Summary was agreed upon after more than an hour of debate as towhich proposals should be seen as attempting to bridge existing differences.

The significant divergence in the proposals to bridge differences provides a clearindication that the Committee faces a deadlock on the approach that should be takenin negotiating the SPLT.

Pakistan supported by many developing countries including India proposed a way outof the deadlock, and this is stated in the Summary. The proposal is 'that beforeembarking on any negotiations in accordance with any of the previous paragraphs acomprehensive study be carried out jointly with UNCTAD to examine the variousimplications of the draft SPLT for countries at different levels of development withthe view to taking an informed decision on the negotiating approach to be pursued.'

The US however expressed concern over this proposal and added a caveat followingthe proposal that 'Some delegations supported this proposal while some otherdelegations opposed it.'

The Summary of the Chair, which was finally agreed to by all parties, further'recognized the importance of the work of the SCP and emphasized that the work onpatent law harmonization should be progressed taking into account the interest of allparties.'

Originally, Brazil had proposed the use of the phrase 'progressed in a balancedmanner', stating that such an approach had been mentioned by numerous delegationspresent, in their statements.

However, following objections from the US, Argentina proposed to replace it with'progressed taking into account the interest of all parties.'

The US delegation continued with its objections even to the Argentina proposal butfinally gave way when there was overwhelming agreement with the intervention byIndia that 'no delegation can argue against' what was being proposed by Argentina.

The Summary while mentioning the participation of non-governmental organizationsin the discussions, does not explicitly state the position taken by each organization,as the summary notes that 'Their views are fully reflected in the report of the session'that will contain all the interventions that were made during the meeting.

The Summary also states, 'The Representatives of the Eurasian Patent Office (EAPO)and the European Patent Office (EPO) (both intergovernmental organizations)supported the recommendations of the informal consultations held in Casablanca onFebruary 16, 2005.'

There was a contentious debate on this, before a decision was reached on how toreflect the views of the NGOs and intergovernmental organizations in the summary.

The first draft summary that was prepared by the Chair named specific NGOs andintergovernmental organizations and their positions, in supporting or opposing therecommendations of the informal consultations held in Casablanca.

However, after noting that it was not the practice during WIPO meetings to name inthe Chair's summary, NGOs and their respective positions as they do not havedecision-making powers (although their views are persuasive), it was decided that thenames and their positions on the future work of the SCP be removed from theSummary.

It was agreed that their views and interventions be reflected in the report of thesession. Only the positions of intergovernmental bodies would be reflected in theSummary.

At a very late stage of discussions on the Chair's summary, the delegation ofVenezuela insisted that its views were not reflected in the Summary. Anotherparagraph was added which stated that the Venezuelan delegation wished to stateexpressly that there was no consensus on the progress on the SPLT.