No Agreement On Future Work At WIPO Committee On Patents

A full day and an evening of informal discussions was not enough for the World Intellectual Property Organization member states to reach agreement on the future work of the patent committee yesterday. Developed and developing countries held firm to their positions after reconvening in plenary past midnight, with disappointment as sole common ground.

Delegates at the 18th session of the Standing Committee on the Law of Patents (SCP) held from 21-25 May began the week on a range of issues, but what the committee should be working on was a subject of opposition on most agenda items.

On Friday afternoon, Chair Vittorio Ragonesi released his summary of the session [pdf] while informal consultations were going on. Delegates came back into plenary after midnight with a text on future work to be inserted in the chair’s summary [pdf], stating that no agreement had been reached.

Earlier in the week, differences arose on most agenda items and in particular the issue of the quality of patents, patents and health, exceptions and limitations to patent rights, and the transfer of technology (IPW, WIPO, 25 May 2012).

On technology transfer, the secretariat had prepared a document [pdf] giving practical examples and experiences of patent-related incentives and impediments to transfer of technology. Some developing countries, such as the Development Agenda Group (DAG) said the document merely showed how patents have been useful to technology transfer and did not present cases when patents have been an hindering factor.

The DAG suggested reworking the documents to include occurrences when technology transfer could not take place due to patent barriers. Egypt, on behalf of the African Group, supported the DAG statement.

The European Union, and the United States on behalf of Group B developed countries were satisfied with the study and said no new initiative should be taken on the subject of technology transfer in the SCP.

Countries Intent on Recording Differences

Developing countries were generally in favour of continuing work in the SCP on patents and health, exceptions and limitations, and the transfer of technology, while developed countries were rather reluctant on those items but supported work on patent quality and the confidentiality of communications between clients and their patent advisors, both issues which do not meet the approval of developing countries.

As a result, the delegates had the daunting task of finding common ground on future work of the SCP.

Even at the late hour when the plenary reconvened, populated mainly by country group coordinators, debate over the content of the chair’s summary continued.

In particular, developing countries noted that the mention of “some countries” in the document did not do reflect the consensus among developing countries on some issues, as the number of countries included in the African Group, the Development Agenda Group, the Group of Latin America and Caribbean Countries, and the Asian Group represents a large majority of the member countries. Their request was not agreed on.

In order to meet the approval of those present in the room, several additions had to be made to a number of paragraphs in the summary to reflect opposite positions. For example, on patents and health, the DAG asked that a sentence be added to indicate that some delegations wished WIPO to continue work on that issue without waiting for the results of any other processes. This was in order to balance the mention in the summary that “some delegations, however, stated that the Committee should wait for the completion of the Trilateral Study … conducted by the World Health Organization, the World Trade Organization and WIPO before proceeding on this agenda item.”

On item 11 of the chair’s report, on transfer of technology, Group B proposed to include the following text: “some delegations did not support continued work only on patent-related impediment to transfer of technology, and explained that publication of patents and patent applications are a form of technology transfer and provide an incentive for technology transfer.” The African Group wished to add a mention specifying impediments that the patent system constitutes to technology transfer.

Late Night Blame Game

At the close of the meeting, all delegates expressed deep disappointment, each insisting on their efforts at compromising met by obstinate refusals by the other side, in particular in informal consultations.

The US, on behalf of Group B said, “members of our group tried to provide explanations and clarifications on the issues and proposals sponsored by our members. We tried to understand the interest of other delegations, while maintaining a balanced agenda.” However, there was not a reciprocal effort to reach a balanced outcome of this session, the delegate said.

Egypt for the African Group said that despite “its incessant efforts at providing compromise language and showing its utmost flexibility on issues that are of great importance and interest to this group, we have met with an intransigence and lack of flexibility from our partners on the other side.”

This, she said, is “a worrying and alarming signal that there are attempts or a tendency to sabotage the work programme of this committee instead to push it forward with practical steps.”

Algeria on behalf of the DAG said the SCP “should build on both public and private interests.”

“We are government representatives, and this is a governmental organisation, so the DAG is very concerned” that some delegations do not take into account the public interest, she said, adding the DAG was “deeply concerned by the bad spirit shown.”

However, she said, the DAG is ready to discuss any other proposal that could be put forward by other members. This remains to be seen.

The next session of the SCP will be held from 26-30 November.