No agreement could be reached at last week’s meeting of the World Intellectual Property Organization committee on patents, a sign of still-deep rifts in what countries want from the global patent system.

The Standing Committee on the Law of Patents (SCP) will reconvene late this year and work from the same agenda of its most recent meeting, which ran from 25-29 January. The next meeting is currently scheduled for 11-15 October.

The committee is in a slow-restart process after an attempt to negotiate a “Substantive Patent Law Treaty” that would have harmonised certain aspects of patent law internationally (IPW, WIPO, 3 June 2005) broke down several years ago.

The body has been cautiously trying to build a technical resource base from which to hold discussions, commissioning several new studies on various aspects of patent law since talks were cautiously re-opened in 2008 (IPW, WIPO, 19 June 2008). But the most difficult area last week was in the SCP’s future work plan.

The lack of agreement is indication that such caution was warranted, but the issues behind the lack of agreement are an indication that the way international patent regimes are talked about has fundamentally changed.

“Delegates on both sides tried to force issues,” said one participant, adding “I didn’t see flexibility from either side.”

The discussions stalled on whether or not to add certain issues to a “non-exhaustive list” of topics the committee might address at some point in the future, but this was only part of the picture, several sources told Intellectual Property Watch. The real issues behind the inability to reach agreement lay in proposals for a commission of independent experts to explore the barriers to technology transfer, several participants said. Also important was a potential study on patent quality management, others said.

In addition, there may be a remaining lack of confidence from this committee’s history, which has seen several stalls in negotiation over the years. During the informal negotiations that stretched over much of the meeting’s last two days, it was often difficult to determine substantively what the hold-up was, as nearly everything seemed to be, from the text on which to hold discussions to the order of agenda items for the next SCP meeting.

This lack of confidence problem “is not specific to this committee,” said a delegate from the Group of Latin American and Caribbean States. “When people want to fight, they can find something to fight about,” the delegate added.

Officials expressed frustration at the outcome. “One more week of nothing,” said one vexed participant on the way out. The negotiation process is a “game,” the participant said.

Informal Documents

A series of informal documents were produced over the last two days in an attempt to find compromise on the committee’s future work plan. There are six in all.

Chronologically, the first document was the result of an informal consultation between the regional coordinators of the Group B of developed countries, the African Group, the Group of Latin American and Caribbean States (GRULAC), according to several sources. One source said that the group of Central European and Baltic States also had been there. The coordinator from the Asian Group was at a conflicting meeting.

This document lists five loose topic areas on which to focus future work: technology transfer, exceptions and limitations, patent administration, client-attorney privilege, and follow-ups to last year’s conference on patent and public health. It is available here [pdf].

From that document was drawn a chair’s text, available here [pdf], which expanded upon the five issues.

The chair’s text drew concern from members of the African Group, who felt that they had not been consulted in the drafting of the original document, and members from the Asian group. But Group B felt that this chair’s text already contained “lots of concessions” made during the informal consultation with regional coordinators, a source from that group told Intellectual Property Watch.

A new text was released on Thursday afternoon (IPW, WIPO, 28 January), which featured suggestions by a group of “Asian like-minded countries,” that began to show where potential areas of disagreement would be. It is available here[pdf].

This document proposed the establishment of a technology transfer commission to discover existing challenges to effective transfer. And while the chair’s text had called for a study on how the patent system “supports” technology transfer, the Asian like-minded text asked that the study focus on how the patent system “impedes” it.

A proposed compilation document of national experiences related to client-attorney privilege was also eliminated from the Asian like-minded text. This issue is of particular interest to certain industry groups and developed countries (IPW, WIPO, 1 February 2010).

On Friday just after midday another draft text emerged which represented a compromise text between the Asian like-minded countries and the African Group. It added two new issues to the “non-exhaustive list” of topics to be covered by the SCP.

These issues were: the impact of the patent system on developing countries and least-developed countries, and patents and food security. This African/Asian like-minded text also suggested the elimination of a study on patent quality and raised the issue of inadequate translation of SCP documents and studies. It is available here [pdf].

The standing list of issues (not including additions discussed at last week’s SCP) is available here [pdf].

At some point on Friday, Group B too came out with suggested changes on the chair’s text. This document is available here [pdf]. It seemed to move toward a compromise by removing any descriptive term from the chair’s text proposed study on technology transfer and the patent system. This would mean neither ‘support’ nor ‘impede’ would appear, but then it places in brackets (indicating lack of agreement) on the decision to consider such a study as well as on an item to discuss a proposal by Brazil on exceptions and limitations to patent rights.

Last-Ditch Efforts Snag on List

Group B thought that the two new issues for the non-exhaustive list suggested by the African/Asian like-minded proposal were already covered on the list under patents and public policy, and the economic impact of the patent system, a source from that group told Intellectual Property Watch. The source added Group B thought it was better not to try to expand the list at this meeting, but that if the list was to be expanded the negotiation strategy to date had been that each ‘side’ of the patent system would add issues to the list at the same time. This means two new issues could be added from developed countries.

Group B made a verbal suggestion during informal negotiations that “work sharing” be on the list. This was not popular with the African/Asian like-minded proposal proponents because the phrase is not clearly defined, and the Patent Cooperation Treaty also covers most aspects of shared work, sources from this group said.

The group of Central European and Baltic States submitted a written suggestion, available here [pdf], that included “strategic use of IP in business” as a possible list suggestion.

The non-exhaustive list was the first substantive item of many on the chair’s text. But by Friday night, negotiations were breaking down on the non-exhaustive list issue and thus, on establishing an overall work plan on patent law at WIPO.