WIPO Model Law Needs Revision, Developing Countries Say; Developed Countries Reluctant 30/07/2015 by Catherine Saez, Intellectual Property Watch 2 Comments Share this:Click to share on Twitter (Opens in new window)Click to share on LinkedIn (Opens in new window)Click to share on Facebook (Opens in new window)Click to email this to a friend (Opens in new window)Click to print (Opens in new window)The World Intellectual Property Organization provides legislative assistance to developing countries and least-developed countries upon request by individual member states. This week at the WIPO patent law committee, the Latin American and Caribbean Group tabled a proposal to revise the 1979 WIPO model law for developing countries on inventions, arguing it is obsolete. The WIPO secretariat said it is no longer providing the model law to developing countries, save for exceptional cases, upon request, because the model law does not take into consideration new international developments in patent law. Developed countries were mostly reluctant to embark on the revision and asked for clarifications on the scope of the revision. Some also asked that the revision not change the interpretation of the World Trade Organization Agreement on Trade-Related Intellectual Property Rights (TRIPS). The 22nd session of the WIPO Standing Committee on the Laws of Patents (SCP) is taking place from 27-31 July. Brazil, on behalf of the Latin American and Caribbean Group (GRULAC), explaining the reasoning of the group proposal [pdf], commented on the history of the 1979 WIPO Model Law for Developing Countries on Inventions. In 1965, the delegate said, the United International Bureaux for the Protection of Intellectual Property (BIRPI), the predecessor of WIPO, published a model law on inventions for developing countries. Some 10 years later, he said, in 1974, “the need was felt for a revision of that model law,” and the final version of the WIPO model law was published in 1979, “36 years ago.” Brazilian Delegation at the SCP The GRULAC proposal is basing its request to discuss a possible revision of the law on several reasons, including the “need to respond to the increasing demand from Member States for legislative and policy assistance in line with the Development Agenda Recommendations 13 [WIPO’s legislative assistance] and 14 [TRIPS Flexibilities].” The proposal also says the revision would be an opportunity to update a document from the 1970s to reflect changes that have occurred since, in particular the 1995 entry into force of the TRIPS Agreement and the implementation of its provisions in national laws. A revised document “would be the basis for consideration of Member States when updating or reviewing their patent legislations.” The Brazilian delegate said the group is seeking comments from member states on this proposal and proposed that the SCP request WIPO to prepare draft terms of reference and modalities that such a revision could follow, for consideration by the SCP at its next session. The GRULAC proposal was supported by a number of countries such as Paraguay, South Africa, Trinidad and Tobago, India and Iran. The African Group said it sees merit in the proposal. South Africa supporting the proposal said the model law is outdated, in particular as it does not take into account TRIPS or the WIPO Development Agenda. Furthermore, the delegate said, it does not take into account the specificities of different socio economic realities and aspirations of developing countries. The revision would provide the opportunity to reflect on the many changes and assist developing countries to put in place an effective and efficient system when updating or revising their patent legislation, she said. Developed Countries See Harmonisation Opportunity A number of developed countries mainly considered that the revision of the model patent law would be part of the harmonisation of the substantive patent law that they are seeking at the SCP. Japan for Group B said if the revision goes towards harmonisation, it should serve the harmonisation of areas such as data protection, grace period and other items. Australia said it concedes the interest in the revision but a comprehensive review of the model patent law could represent a large amount of work and may duplicate many of the discussions already taking place at the SCP. Australia proposed [pdf] that WIPO prepare a study on experiences of how developing countries and LDCs have implemented the patent model law, or to determine the unmet need for a patent model law. The country also asked for further details before taking a decision on the GRULAC proposal. The United States said that in 1979 the patent system was poorly defined and consisted mainly of the Paris Convention for the Protection of Industrial Property and the Patent Cooperation Treaty, “which was just beginning to operate.” However, the US delegate said, today the situation is quite different as “the international patent system has been operating for many years and there are multiple international, multilateral and bilateral agreements that set up a framework between countries and between groups of countries.” Many developed, developing and least-developed countries have patent laws which are available on the WIPO website and “may serve as a valuable resource for those considering new or revised patent laws,” he said. “We do not support work at WIPO on developing new model laws or revising the existing model patent law,” he said, adding that a more effective tool is “for WIPO to provide tailored technical assistance on legislative and policy matters directed at individual member states at their request taking into consideration the specific needs and circumstances of those states.” Romania, on behalf of the Group of Central European and Baltic States (CEBS), said such revision is a complex exercise and implies the revisiting of all patent laws. The delegate said the revision of the model law should not touch upon the interpretation of the TRIPS Agreement, and concurred with other members that the GRULAC proposal would represent a harmonisation of substantive patent law. Luxembourg, on behalf of the European Union, agreed that the revision should not impact the interpretation of TRIPS provisions and did not find any convincing arguments to agree to consider the GRULAC proposal. Paraguay countered the argument of harmonisation by saying that the fact that several countries have similar legislation due to the fact that they got inspired by the model law is “kind of accidental” and does not reflect any kind of harmonisation. The model law, he said, would be a soft law and it is difficult to see how this kind of exercise could interpret the provisions of TRIPS. Revising the model law would bring more transparency to technical assistance, he said. 1979 Model Law Hardly Used, Obsolete, WIPO Says GRULAC asked about the usefulness of the current model law for the WIPO secretariat. According to the WIPO website, WIPO provides “tailored advice on the design of laws on patents, trademarks, industrial designs, and geographical indications, as well as on provisions on IP enforcement, taking into account specific country needs and situations.” The page specifies that “all legislative advice is provided on a strictly bilateral, neutral and confidential basis.” Yesterday afternoon, the secretariat explained that the 1979 model law was used mostly during the 1980s and 1990s as an instrument when providing legislative advice to member states. The model law served as model for national laws for countries which did not have any laws in place or wanting to revise their law. The WIPO official said the 1979 model law can be accessed, but it is misleading as it does not meet current international standards, and in particular the TRIPS Agreement. He said a number of provisions from the model law actually inspired the drafting of the TRIPS Agreement. Brazil illustrated the obsolete nature of the model law by remarking that it suggests a 15-year period for patent protection. Further discussions on the GRULAC proposal and in particular its future consideration are expected this week. KEI Statement Knowledge Ecology International made a statement in support of the GRULAC proposal. “We live in a post TRIPS world with countless bilateral and regional trade agreements featuring obligations relevant to patent law,” it said. “The proposal challenges WIPO and its members to provide more concrete implementation of promises and obligations for technology transfer, development, and access to medical technologies, in the context of other obligations that may be relevant in trade agreements.” “GRULAC has proposed a transparent and inclusive process, that will be a welcome alternative to secretive and non-inclusive regional and bilateral trade agreement norms on patent policy,” KEI said. 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