Governments’ failure to reach agreement on a way forward on patent harmonisation talks at the World Intellectual Property Organisation today has cast a pall on the future of the issue within the UN body, sources said.

The meeting of the Standing Committee on the Law of Patents (SCP) at Geneva-based WIPO was scheduled for 1-2 June but carried over to the morning of 3 June in order to reach agreement on a basic chair’s summary of the meeting. The committee has been attempting to negotiate a Substantive Patent Law Treaty (SPLT) for years, and according to some officials, the long-standing deadlock was not broken in this week’s meeting.

“This is a serious setback for the proponents of patent law harmonisation” because of the lack of agreement on how to proceed, one developing country official said afterward.

The United States will now consider ways to move on harmonisation outside of WIPO, a US official said. “The US is disappointed that there was no agreement to move forward with substantive patent law harmonisation on prior art issues in WIPO,” said Brigid Quinn, deputy director at the office of public affairs of the US Patent and Trademark Office. “We think that such an approach would benefit all countries by allowing them to rely more on examination work performed in other countries under common examination standards.”

“The US intends to pursue harmonisation of prior art issues within the group of developed countries, and will evaluate in the future whether an agreement may be possible in WIPO at some point,” she added.

According to the non-binding chair’s summary, governments “recognized the importance of the work of the SCP and emphasized that the work on patent law harmonisation should be progressed taking into account the interest of all parties.” But Venezuela added at the end of the meeting the wish that it be “stated expressly that there was no consensus to progress with the SPLT negotiations.”

In fact, there was not even consensus on the meaning of the word “consensus”, as it seemed to take on different meanings to different governments and was the subject of significant debate on the second day, according to officials. The final text included a statement that Argentina, speaking on behalf of 14 countries referred to as the Friends of Development, proposed that chair’s summary be “agreed by all,” which was changed from “consensus.” And the next line states, “The SCP agreed to this proposal,” despite attempts by some countries to add to have the line read, “The SCP agreed to adopt this summary by consensus.”

Casablanca Outcome Fizzles

The meeting began and ended with two primary and differing proposals on the future of patent harmonisation at WIPO, and countries generally lined up along “North-South” (developed and developing country) lines. Other proposals intended to bridge the differences surfaced during the meeting, though they did not gain sufficient support to move ahead.

On one hand, the secretariat put forward a proposal reflecting the outcome of an informal consultation with WIPO Director-General Kamil Idris in Casablanca, Morocco in February. That proposal called for a focus on improving patent quality, avoiding encroachments on the public domain and reducing duplication among patent offices. It called for work on six areas. Four of them – prior art, grace period, novelty and inventive step – would be addressed in the SCP, while the other two – sufficiency of disclosure and genetic resources – would be relegated to the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore.

The Casablanca meeting outcome did not gain significant support from developing countries this week, but had the stated backing of the so-called Group B of developed countries, the European Union, Morocco, Korea and Sudan, the home country of Director General Idris. Sudan added in the meeting that “the building of consensus should be observed.”

The Casablanca proposal followed a proposal by Japan and the United States, the world’s biggest patent filers, to establish a new work plan for the SCP. The two countries, along with Australia, Canada and Europe, early this year agreed to launch an effort to harmonise their patent systems outside of WIPO. This would not apply to all countries, however, and in addition, sources said the European Union appeared more reluctant to fully move the debate outside of the multilateral arena. Also in the meeting, the Eurasian Patent Organisation and the European Patent Office supported Casablanca outcome.

It is unclear what the impact of this week’s meeting will have on the separate track. But one informed source said there had been discussion by the United States at a recent meeting of the Asia-Pacific Economic Cooperation (which does not include Europe) of forming an APEC regional patent office which the source said suggests the possibility of a US-Asia harmonisation initiative.

Development Agenda Path Undeterred

On the other hand at the meeting outset was a statement by the Friends of Development disagreeing with the Casablanca outcome. That group called for greater transparency and inclusion in WIPO processes, issues that are raised in the group’s broader proposal for a WIPO Development Agenda that is under discussion in another forum. The development group’s statement also stressed the importance of multilateralism and working within WIPO.

On substance, the group’s statement called for continuation of SPLT negotiations on the basis of the draft treaty as a whole. It should include provisions on technology transfer, anticompetitive practices, and the safeguarding of flexibilities for actions on behalf of public interest, the statement said. Added to that this week, according to the chair’s summary, was biodiversity or disclosure of origin, which developing countries want to be on an equal footing with other issues. China added in the meeting that disclosure of the origin of genetic resources in patent applications should be addressed in the SCP.

By comparison, a Swiss proposal this week called for the same breakout of six issues as the Casablanca outcome, but added the prospect of the two separate committees coming together in a diplomatic conference. The mixed response left the proposal undecided.

Brazil argued that the Friends of Development proposal represented all countries’ views and left open the possibility of discussing all issues of the draft SPLT. The US delegation shot down the development proposal to discuss the entire treaty document with additional proposals, calling it “unmanageable, inefficient and unworkable,” and arguing that it did not provide a viable manner in which to proceed, according the chair’s statement.

The 14-member Friends of Development group includes Argentina, Bolivia, Brazil, Cuba, Dominican Republic, Ecuador, Egypt, Iran, Kenya, Peru, Sierra Leone, South Africa, Tanzania and Venezuela. They were joined in opposing the approach of the Casablanca consultations by Chile, Colombia and India. This was significant also because representatives from Chile and India attended the Casablanca meeting and it was unclear afterward whether their governments had supported the outcome or whether they had attended on their own behalf, which turned out to be the case.

In addition, the final chair’s summary said “many delegations expressed reservations with respect to the procedure and outcome of the informal consultations held in Casablanca.” Developing countries complained after the Casablanca meeting that it was not proper for the director general to hold an invite-only consultation of mostly like-minded governments and then proceed as though it was an official proposal for the SCP.

Future Unclear

Some have indicated that WIPO feels pressure from the developed countries to be able to generate new momentum on patent harmonisation, in part because they are the biggest source of revenue for the organisation.

After the meeting, one developing country official said the patent harmonisation issue not to be raised at next fall’s General Assembly because no agreement was reached on how to proceed nor on forwarding the proposal to the annual high-level assembly. “The meeting made clear that, in effect, very little has changed since last year’s General-Assembly,” the official said.

The meeting was attended by a number of non-governmental organisations, including several representing consumers and several representing the pharmaceutical industry. According to the chair’s summary, the groups’ interventions will be included in the WIPO secretariat report of the meeting. Representing the secretariat was Deputy Director General Francis Gurry.