A meeting next week of the world’s 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.

“This exploratory meeting will be an important step in getting substantive patent law harmonisation back on track,” USPTO undersecretary and director Jon Dudas said in a statement earlier this month. “Harmonisation 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 — patent applicants, patent offices and the public alike.”

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.

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

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.

“My 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,” said one developing nation official. “More 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.”

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.

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

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.

“Any 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,” a WIPO spokeswoman said this week. “That’s standard.”

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. “The massive participation of EU institutions shows that we are very interested and that our approach will be constructive,” the official said.

Under discussion at WIPO is a proposal for a “substantive patent law treaty” (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’s 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) “should be determined by the director general following informal consultations that he may undertake.”

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

Suspicion runs deep on both sides of the patent harmonisation issue. One Washington-based intellectual property lawyer accused Brazil and others of an “effort to weaken WIPO” 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’s Love countered that developing countries are just trying to make WIPO more like a U.N. body where developing countries’ concerns get equal weight. “WIPO is the U.N. agency to do these things,” he said. “What people are trying to do right now is make WIPO a U.N. agency.” He called the Washington meeting “really an attack on WIPO,” adding, “This is really like unilateralism.”

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 “saying we need to move forward even though we agreed to disagree with developing countries.”

The purpose of the meeting is to continue coordination on patent laws in order to increase predictability and ease procedures for patent applicants, “so that patenting done on a global scale is done more efficiently,” Groetken said. Examples of differences to be worked through by the offices include searches of each others’ 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, “It cannot be a resolution for so many other economic issues for developing countries.” What developed countries want, he said, is for developing countries to develop their own systems and to interact with developed countries on the issue “at every opportunity.” 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.