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The Politicization Of The US Patent System

The Washington Post story, How patent reform’s fraught politics have left USPTO still without a boss (July 30), is a vivid account of how patent reform has divided the US economy, preempting a possible replacement for David Kappos who stepped down 18 months ago. The division is even bigger than portrayed. Universities have lined up en masse to oppose reform, while main street businesses that merely use technology argue for reform. Reminiscent of the partisan divide that has paralyzed US politics, this struggle crosses party lines and extends well beyond the usual inter-industry debates. Framed in terms of combating patent trolls through technical legal fixes, there lurks a broader economic concern – to what extent ordinary retailers, bank, restaurants, local banks, motels, realtors, and travel agents should bear the burden of defending against patents as a cost of doing business.


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    WIPO Members Work Through Differences In Genetic Resources Document

    Published on 19 February 2012 @ 7:06 pm

    By , Intellectual Property Watch

    The development of an international instrument on the protection of genetic resources continues to engage government delegates at the World Intellectual Property Organization.

    Sources have called the process constructive and meeting Chair Wayne McCook, the permanent representative of Jamaica, said delegations were very engaged in the exercise. But a sharp divide remains on several subjects.

    The WIPO Intergovernmental Committee on Genetic Resources, Traditional Knowledge and Folklore (IGC) is meeting from 14-22 February, with this week’s sole focus on genetic resources and a mandate to find agreement on a single negotiating text.

    On 16 February, the three facilitators tasked with the mandate to compile all previous propositions on the table produced a consolidated document. A second version of the document was produced later that day, putting the text in narrative format instead of in tables (IPW, WIPO, 17 February 2012).

    The second 16 February text is available here [pdf].

    The facilitators are Ian Goss of Australia, Raina Chandni of India, and Tom Suchanandan of South Africa.

    It is on that second version of the document that delegates have been working, each delegation having the opportunity to provide comments on the document. Among the most contentious issues was the mention in the document of “intellectual property rights” instead of “patents”, with developed countries mostly favouring the use of patents in the text.

    A developed country source told Intellectual Property Watch that leaving the mention of IP rights would include all kind of rights, such as trademarks, geographical indications, plant variety protection, and copyrights, and it seemed more logical to them in the context of genetic resources to address only patent issues.

    Another issue on the scope of the prospective legal instrument was the inclusion or the deletion of the mention of derivatives in the consolidated document. The discussions echoed the negotiations that took place in October 2010 and led to the adoption of The Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the Convention on Biological Diversity. In general, developed countries are in favour of the deletion of the term and developing countries would prefer its retention, broadening the scope of the future instrument.

    In Nagoya, the definition of derivatives and the scope of the instrument were sore spots in the negotiations. Article 2 of the Protocol includes this definition: Derivative “means a naturally occurring biochemical compound resulting from the genetic expression or metabolism of biological or genetic resources, even if it does not contain functional units of heredity.”

    It seems, according to a source, that proponents of taking the mention of derivatives out of the text are seeking to avoid an overlapping of the future WIPO instrument with the Nagoya Protocol.

    Mandatory Disclosure in Patent Applications

    A clear partition between developing and developed countries is the mandatory disclosure of origin in patent applications. On 18 February, as delegates discussed the scope of protection, and in particular the third option of this chapter in the consolidated document on the mandatory disclosure, the African Group and the Development Agenda Group (DAG) asked that this option be retained.

    Some developed countries, such as Japan, and the United States, said that there was a lack of impact analysis and studies concerning the effects of such disclosure, in particular its potential adverse effects on innovation.

    South Africa on behalf of the African Group asked that the mandate of the committee be followed, which asks to expedite the work on text-based negotiations.

    “The calling for further studies,” the delegate said, “will not expedite” the process, “it is meant to delay the process.” Such studies take a long time, he said, adding that there are countries where mandatory disclosure is in effect, such as Brazil and India. In South Africa, there has been a disclosure obligation since 2005, which did not lead to any more “costs or complications,” he said. The DAG followed this position.

    Namibia said that the issue of mandatory disclosure in patent applications was “a credibility case for WIPO” as the “issue cannot be swept under the carpet” much longer.

    Chair McCook presented his schedule for Monday (20 February), when the committee meets again. The three facilitators will go back to the consolidated document and now have a mandate to do some “administrative cleaning” of the document, reorganising it to improve the flow of text and structure it thematically, trying to avoid direct duplications and overlaps, but with extreme care so to avoid any removal or additions of points to the text, in the sake of full inclusiveness and transparency.

    Once their task is done, the facilitators will meet with the proponents of text-based negotiations on Monday morning, without adding or removing anything from the text presented in plenary, and the revised consolidated document should be available to delegates by Monday over lunch, McCook said. The plenary will then reconvene at 3:00 to immediately break to leave time for delegates to consult about this revised text. The plenary should reconvene at 4:30 to start further deliberations with a view of consolidation of this document into a single text in keeping with the Committee’s mandate, he said.

    On 18 February, many delegates came wearing at least some accessory reminiscent of their country as it was “national dress day” at the committee. The exotic outfits, large-brimmed hats, shiny fabrics, elaborated head gears and multi-coloured, artistically woven wraps belied the studious mood as delegates tediously went over the compilation text gathering all previous proposals.

    Catherine Saez may be reached at info@ip-watch.ch.

     

    Comments

    1. Andre Myburgh says:

      The South African delegate said, “In South Africa, there has been a disclosure obligation since 2005, which did not lead to any more ‘costs or complications.’” Regrettably the statement is incorrect. In addition to a disclosure requirement, there is also a permit requirement imported from the bioprospecting legislation, which requires prior informed consent and a benefit sharing agreement where TK is involved. From April 2008, when the full scope of these regulations came into force, until July 2011, only THREE permits were granted in respect of the use of GRs, of which TK was involved in two of the cases, therefore South Africans could only have registered THREE patents or groups of patents in South Africa in that period of over three years! (Non-South Africans would have simply filed elsewhere …)

    2. This week in review … WIPO IGC continues work on IP and genetic resources « Traditional Knowledge Bulletin says:

      [...] WIPO Members Work Through Differences in Genetic Resources Document IP Watch, 19 February 2012 [...]

    3. Ricardo says:

      Would protecting genetic resources overlap with the discussion of whether human genes can be patented? So far there is a little over 8,000 cases of human gene patenting (http://bit.ly/zyYwpV). Depending on the decisions being made, this can affect the outcome of what will be done to these already existing patents.


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    We welcome your participation in article and blog comment threads, and other discussion forums, where we encourage you to analyse and react to the content available on the Intellectual Property Watch website. By participating in discussions or reader forums, or by submitting opinion pieces or comments to articles, blogs, reviews or multimedia features, you are consenting to these rules.

    We welcome your participation in article and blog comment threads, and other discussion forums, where we encourage you to analyse and react to the content available on the Intellectual Property Watch website.

    By participating in discussions or reader forums, or by submitting opinion pieces or comments to articles, blogs, reviews or multimedia features, you are consenting to these rules.

    1. You agree that you are fully responsible for the content that you post. You will not knowingly post content that violates the copyright, trademark, patent or other intellectual property right of any third party or which you know is under a confidentiality obligation preventing its publication and that you will request removal of the same should you discover that you have violated this provision. Likewise, you may not post content that is libelous, defamatory, obscene, abusive, that violates a third party's right to privacy, that otherwise violates any applicable local, state, national or international law, that amounts to spamming or that is otherwise inappropriate. You may not post content that degrades others on the basis of gender, race, class, ethnicity, national origin, religion, sexual preference, disability or other classification. Epithets and other language intended to intimidate or to incite violence are also prohibited. Furthermore, you may not impersonate others.

    2. You understand and agree that Intellectual Property Watch is not responsible for any content posted by you or third parties. You further understand that IP Watch does not monitor the content posted. Nevertheless, IP Watch may monitor the any user-generated content as it chooses and reserves the right to remove, edit or otherwise alter content that it deems inappropriate for any reason whatever without consent nor notice. We further reserve the right, in our sole discretion, to remove a user's privilege to post content on our site. IP Watch is not in any manner endorsing the content of the discussion forums and cannot and will not vouch for its reliability or otherwise accept liability for it.

    3. By submitting any contribution to IP Watch, you warrant that your contribution is your own original work and that you have the right to make it available to IP Watch for all purposes and you agree to indemnify IP Watch, its directors, employees and agents against all damages, legal fees and others expenses that may be incurred by IP Watch as a result of your breach of warranty or of these terms.

    4. You further agree not to publish any personal information about yourself or anyone else (for example telephone number or home address). If you add a comment to a blog, be aware that your email address will be apparent.

    5. IP Watch will not be liable for any loss including but not limited to the following (whether such losses are foreseen, known or otherwise): loss of data, loss of revenue or anticipated profit, loss of business, loss of opportunity, loss of goodwill or injury to reputation, losses suffered by third parties, any indirect, consequential or exemplary damages.

    6. You understand and agree that the discussion forums are to be used only for non-commercial purposes. You may not solicit funds, promote commercial entities or otherwise engage in commercial activity in our discussion forums.

    7. You acknowledge and agree that you use and/or rely on any information obtained through the discussion forums at your own risk.

    8. For any content that you post, you hereby grant to IP Watch the royalty-free, irrevocable, perpetual, exclusive and fully sub-licensable license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and display such content in whole or in part, world-wide and to incorporate it in other works, in any form, media or technology now known or later developed.

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