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IP-Watch Summer Interns

IP-Watch interns talk about their Geneva experience in summer 2013. 2:42.

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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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    Protecting Traditional Knowledge: WIPO Members Back To The Drafting Table

    Published on 22 April 2013 @ 9:08 pm

    By , Intellectual Property Watch

    World Intellectual Property Organization delegates are meeting once again this week to try to advance a text that could become an international instrument to protect traditional knowledge. Substantial work needs to be done on the draft text, and developing countries generally favour a legal binding instrument while developed countries would prefer a softer instrument.

    The 24th session of the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) is taking place from 22-26 April.

    On the menu of this session are draft articles [pdf] on the protection of traditional knowledge, including a number of bracketed text and alternatives showing that delegates will have to find consensus on some core issues to streamline the text. The version issued at the end of the week is expected to be sent in autumn to the WIPO General Assembly, which will consider progress on the text and decide on convening a high-level meeting to complete an international instrument to protect traditional knowledge, according to the 2012 General Assembly decision [pdf].

    The same decision states that this session of the IGC should focus on, “but not limited to,” four core articles of the draft document: the subject matter of protection, beneficiaries, scope of protection, and limitations and exceptions.

    The IGC has three areas: genetic resources, traditional knowledge and traditional cultural expressions (folklore). The 23rd session, held from 4-8 February, dealt with genetic resources, the 24th session is devoted to traditional knowledge, and the 25th session will address traditional cultural expressions from 15-24 July. The three last days of the 25th session are expected to be devoted to taking stock of the texts produced by the 2013 IGC meetings, and prepare a recommendation for the September Assemblies.

    IGC Vice-Chair Alexandra Grazioli, of the Swiss Federal Institute of Intellectual Property, presented the work plan this morning, with the week alternating closed-door informal drafting sessions and plenary sessions to report on progress. As in the February session of the meeting, Grazioli asked that integrity of smaller expert groups be respected and warned against any kind of transmission being made about the closed negotiations.

    This methodology was adopted at the February session to facilitate drafting progress as the “experts feel they have the freedom to make suggestions and comments not on the basis of attribution and without being held to a national position for such intervention,” Wayne McCook, Jamaica ambassador and chair of the IGC, said at that meeting (IPW, WIPO, 5 February 2013).

    Preparatory Meeting in South Africa

    An informal preparatory meeting, gathering a number of member states, was convened by South Africa last week in Pretoria to discuss core issues of the draft instrument, according to some sources. Prior to the February IGC meeting, India had convened a similar meeting.

    During the plenary meeting this afternoon, the South African representative spoke about the non-negotiating Pretoria meeting, saying he wished to take the spirit of what happened without making a report on the meeting. Some 18 member countries attended and “discussions were held in a friendly and mutually-respecting environment,” he said, adding that because the purpose of the meeting was not to discuss the text of the IGC, it allowed participants to explore concerns around the work undertaken in the IGC.

    South Africa, he said, invited the countries who had attended the meeting in India prior to the February session, although it had hoped to invite more countries to promote and foster transparency.

    The aim of the meeting in Pretoria, he said, was to seek consensus and basic issues, such as “what does the protection of IP means in WIPO, generally,” or why the discussion on the protection of TK is taking place at WIPO and not in the United Nations Convention on Biological Diversity or other organisations, or whether WIPO is a forum for national law or meant for international norms.

    Participants also looked at issues such as “is the protection of TK appropriate for this audience,” or “is IP protection relevant to TK,” is the protection of TK using conventional IP or a sui generis system, he said. Other questions were raised and “debated very robustly by members,” such as some related to the public domain: “where does it originate from,” or “is it a legal concept.”

    The questions “were not threatening to anybody” and they were not associated with a text, the delegate said, asking members to ponder the grounds of their discussion and what kind of instruments WIPO administers, whether it was political declarations or treaties. “We need to find the focus on why we are here,” he said, “otherwise we are speaking past each other.”

    More Documents to Discuss, Although Not Focus

    Also on the table this week are three other documents which were already discussed in the previous session of the IGC and are expected to be discussed again during this session, according to sources.

    Joint Recommendation [pdf] on Genetic Resources and Associated Traditional Knowledge, was submitted by the delegations of Canada, Japan, Norway, South Korea and the United States. This joint recommendation focuses on the prevention of the erroneous grant of patents and offers measures to allow this prevention.

    There is also a proposal for the Terms of Reference [pdf] for a “Study by the WIPO Secretariat on Measures Related to the Avoidance of the Erroneous Grant of Patents and Compliance with Existing Access and Benefit-Sharing Systems.” The document was submitted by Canada, Japan, South Korea, and the US. It requests that a WIPO technical study on patent disclosure requirements related to genetic resources and traditional knowledge be updated in an effort to have a “fact-based analysis” of whether disclosure requirements as well as access and benefit-sharing address the concerns about erroneous patents and misappropriation, “without reducing the incentive to innovate…”

    Finally, there is another Joint Recommendation [pdf] on the “Use of Databases for the Defensive Protection of Genetic Resources and Traditional Knowledge Associated with Genetic Resources.” The document was submitted by Canada, Japan, South Korea and the US.

    McCook issued an “informal issues paper” [pdf] giving background information on main issues and cross-cutting issues to be discussed this week, such as the definition of the protectable subject matter, which issues should relate to national legislation, and which others should relate to international legislation. The paper also gives information about divergent views on some of the articles, such as Article 7 (term of protection), Article 5 (administration of rights), and 5bis (application of collective rights).

    WIPO Report on Customary Law

    By Tiphaine Nunzia Caulier for Intellectual Property Watch

    Separately, a report by WIPO and the UN University circulated last week explains how customary law can help in the protection of the TK rights of indigenous communities. With a regional focus, the report examines the interrelations between customary law, national and international regulations of TK, and human rights.

    Drawing on workshops held in the Andean and South Pacific Island countries a few years ago, the report shares examples of countries where customary law is recognised in the constitution.

    The analysis, authored by Brendan Tobin of the Australian Centre for Intellectual Property in Agriculture, highlights the various difficulties and challenges that surround the concept of customary law. For instance, regarding the example of the Andean countries, the report highlights that issues remain regarding the enforcement of such customary laws. The analysis also shows that there is a multiplicity of existing customary law systems which thus precludes the harmonisation and adoption of a one-size-fits-all solution.

    The report can be found here [pdf].

    Tiphaine Nunzia Caulier contributed to this report.

     

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

     

    Comments

    1. This week in review … WIPO members meeting to negotiate protection of TK | Traditional Knowledge Bulletin says:

      [...] Protecting Traditional Knowledge: WIPO Members Back to the Drafting Table IP Watch, 22 April 2013 [...]


    Leave a Reply

    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.

    9. These terms and your posts and contributions shall be governed and interpreted in accordance with the laws of Switzerland (without giving effect to conflict of laws principles thereof) and any dispute exclusively settled by the Courts of the Canton of Geneva.

     

     
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