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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 Governments Push On New Folklore Treaty Text; Indigenous Peoples Disappointed

    Published on 13 July 2012 @ 1:51 pm

    By , Intellectual Property Watch

    After a late start, delegates at the World Intellectual Property Organization today are trying to make up for lost time in an attempt to draft a potential treaty text to protect traditional cultural expressions on the last day of a weeklong meeting. The first revision of draft articles was issued yesterday at the end of the afternoon. The status of Indigenous Peoples was also examined by delegates the day before without much interest.

    Combined efforts by a facilitator, Kim Connolly-Stone of New Zealand, and a group of experts from the regional groups in informal meetings for most of 11 and 12 July, yielded the first amended version of draft articles [pdf] coming from the 19th session of the WIPO Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) which took place in July 2011. The revised draft articles also contain comments by the facilitator.

    The 22nd session of the IGC is taking place from 9-13 July.

    The start of the session was delayed by the inability of the WIPO delegates to agree on the agenda at the start of the week (IPW, WIPO, 9 July 2012).

    The plenary resumed briefly at the end of the afternoon on 12 July to allow for the text to be distributed to delegates and for Connolly-Stone to go over the main changes made to the set of draft articles [pdf] from IGC 19.

    The plenary reconvened this morning so that delegates could make comments about the text for the record, Chair Wayne McCook said, adding that there would be no live drafting of the text. They went through all 12 articles with many comments, and left off for lunch with the objectives and principles.

    Connolly-Stone first explained that as facilitator she considered and revised all 12 draft articles, and only articles 1, 2 and 5 were further amended by the experts group. The aim of the revision was to reduce the number of options and simplify the text, she said.

    In Article 1 (subject matter of protection) a slight structural change was made, using two sub-headings: definition, and eligibility criteria, as was done in the draft articles on traditional knowledge, she said. Options one and two of this article have been combined into a single option in which she said areas of divergence were identified and submissions made during the early part of the week added.

    Article 2 (beneficiaries) has just one option instead of two in the original text as the expert group tried to come up with one option reflecting all the issues that had been raised, Connolly-Stone said. The option contains brackets around specific issues, such as “local communities,” “who hold, maintain, use or develop” the traditional cultural expressions.

    Policy options that were identified at IGC 19 in Article 3 (scope of protection), with one approach being flexible versus a more prescriptive approach have not really changed, she said. The option on equitable remuneration was deleted as she did not hear any support for this option either in IGC 19 or earlier this week.

    According to the facilitator, Article 4 (management of rights) now has two options instead of one, the first is merging all previous options, and option two is a much shorter version, she said.

    In Article 5 (exceptions and limitations), two options have been combined into one with brackets left to signal differences, in particular on mandatory exceptions for independent creation and permitted acts under copyright and trademark law.

    In Article 6 (terms of protection), paragraph 3 of option 1, dealing with secret traditional cultural expressions, was removed. In Article 7 (formalities), which consists of one sentence: “As a general principle, the protection of traditional cultural expressions shall not be subject to any formality,” the facilitator just bracketed the opening phrase “As a general principle” as suggested by one delegation, Connolly-Stone said.

    Article 8 (sanctions, remedies and exercise of rights) was restructured so that it better reflects the areas of agreement and divergence, she said. Main differences lie in measures being provided in accordance with national laws, or sanctions and remedies through enforcement and dispute-resolution mechanisms, including border-measures.

    Very few changes were made to Article 9 (transitional measures), while in Article 10 (relationship with intellectual property protection and other forms of protection, preservation and promotion), Connolly-Stone said she tried to accommodate two very different approaches.

    One of those approaches is to focus on IP international agreements, while the other one wishes to focus on non-IP agreements, and in particular those dealing with cultural heritage, she said. She summarised those two approaches with: “protection under this instrument should/shall take account of and operate consistently with, other international instruments including those dealing with intellectual property and cultural heritage” There were no changes in Article 11 (national treatment).

    Keeping Indigenous Peoples in Their Place

    During IGC 21, held from 16-20 April, the committee asked that the WIPO secretariat prepare an information document on practical, procedural and budgetary implications of suggestions put forward by the Indigenous Caucus.

    On 11 June, in parallel with the expert group working on the draft articles, the plenary met to discuss document GRTFK/IC/22/Inf10 [pdf] on the participation of observers and particular on the status of Indigenous Peoples and the suggestions they had put forward in April.

    Co-Chair Bebeb A.K.N. Djundjunan of Indonesia, chairing the plenary while McCook was attending the expert group, proposed to take comments from the delegates on the six proposals made by the Indigenous Caucus. The United States delegate said that document GRTFK/IC/22/Inf10 is an information document and that the plenary was only supposed to take note of it. The same remark was made by the European Union.

    Djundjunan said the aim was to get feedback from delegates about the Indigenous Peoples’ suggestions. Wend Wendland, director of the Traditional Knowledge Division at WIPO, said no decisions could be taken on the basis of the document as such, but going over it in plenary was expected to allow member states to make proposals “flowing from the document” on each of the suggestions.

    The delegate of Sri Lanka supported going through the six proposals. The Indigenous Caucus made a statement on the participation of Indigenous Peoples in the IGC [pdf] (in English), (in French), (in Spanish). In particular, they called on the IGC to adopt the recommendations of the United Nations Permanent Forum on Indigenous Issues, resulting from the “Comprehensive Dialogue with the World Intellectual Property Organization” on 10 May 2012 [pdf].

    The first suggestion of the Indigenous Caucus was to create a new category for the participation of Indigenous Peoples, including the right to submit proposals, modifications and motions, and the right to vote. Indigenous Peoples are currently considered as observers and have the same prerogatives as other observers. In particular, any proposals made by Indigenous Peoples have to be supported by at least one member state to be considered by the committee.

    According to the WIPO secretariat’s information document, under the WIPO general rules of procedure, participants in the IGC “may fall in either of the two following categories: they may be recognized as ‘delegates’ under Rule 7″ or “they may be recognized as ‘observers’ under Rule 8.”

    The recognition of a new status for Indigenous Peoples that would be different from observers “might imply either that those participants would be categorized as ‘delegates’ (option 1), or that a new category be introduced for indigenous peoples (option 2).”

    Australia asked for clarification from the Indigenous Peoples representatives as to what they were considering. The Indigenous Caucus said that “clearly Indigenous Peoples are not states,” but they wished to have a special status that would give them the opportunity and the right to submit text proposals, to make amendments, motions, and to vote within the IGC process.

    The United States said it would not support either option 1 or 2 “or anything which would elevate the status” of Indigenous Peoples at this time, due to the intergovernmental nature of the committee. This approach was supported by Russia, which said considering a new status would require further clarification.

    The committee went through the six proposals without much comment or support from member states. Australia, Norway and Sri Lanka supported the 5th suggestion asking that “the Secretariat consult with the Chair of the Indigenous Caucus, inter-sessionally, regarding selection of panelists for the Indigenous Panel.”

    An Indigenous Peoples’ representative told Intellectual Property Watch that the discussions were fruitless, and the absence of a decision on the document seemed like a bad omen on further considerations of the Indigenous People’s suggestions.

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

     

    Comments

    1. WIPO Folklore Talks Headed To Assembly; Treaty Negotiation Not Likely In 2013 | Intellectual Property Watch says:

      [...] The mandate also said IGC 22 should focus on four key articles: Article 1 on the subject matter of protection; Article 2 on beneficiaries; Article 3 on the scope of protection; and Article 5 on exceptions and limitations. During the week, with the help of a facilitator, a revised draft text was made reflecting work on these articles (IPW, WIPO, 13 July 2012). [...]

    2. Summary: The Intergovernmental Committee: Twenty-Second Session | WIPO Monitor says:

      […] WIPO Governments Push On New Folklore Treaty Text; Indigenous Peoples Disappointed […]


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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.

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    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.

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    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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