No Future Work Programme For WIPO Patent Law Committee; Questions On Development Orientation

Two days of informal consultations last week did not bring World Intellectual Property Organization members to agreement on a work programme for the next session of its committee on the law of patents. Developed and developing countries have different views on the work of the committee, with developing countries seeking work on patent on health, and limitations and exceptions to patent rights, while developed countries are more interested in work-sharing between patent offices and protecting the confidentiality of information between patent advisers and their clients.

The 23^rd session of the Standing Committee on the Law of Patents (SCP) took place from 30 November – 4 December.

SCP Chair Bucura Ionescu of Romania issued a proposed programme of work [pdf] on 4 December, which she said was her fourth proposal constructed in consultation with regional coordinators. The work programme was meant to be part of the Summary by the Chair [pdf], which could not be agreed, subsequent to the absence of agreement on the work programme.

In the absence of agreement, the next session of the SCP is expected to be based on five previously agreed topics: exception and limitations to patent rights; quality of patents, including opposition systems; patents and health; confidentiality of communications between clients and their patent advisors; and transfer of technology.

According to several developing country sources, during the discussions leading to the draft work programme on 3 and 4 December, Group B developed countries were reluctant to include mention of development in the draft text, arguing that development issues should be addressed by the Committee on Development and Intellectual Property (CDIP). Several of the developing country sources told Intellectual Property Watch that this belies the assumption that the WIPO Development Agenda is mainstreamed in WIPO committees. The assertion of objections to the mention of “development” could not be confirmed with developed country sources at press time.

Developed countries have been saying that work-sharing could ease the work of patent examiners and also would ensure a better quality of patents, but developing countries are wary of what they consider might be an effort at harmonisation, endangering national policy options.

The programme of work of the SCP has always been a difficult issue and a number of proposals have been tabled during the last sessions of the committee.

For example: a proposal [pdf] submitted in 2011 by the delegation of South Africa on behalf of the African Group and the Development Agenda Group on patents and health; a proposal [pdf] from Denmark in 2011 on work sharing between IP offices to increase the quality of patents; a 2011 proposal [pdf] by the United States on the quality of patents; in 2012, a proposal [pdf] of Canada and the United Kingdom on a questionnaire on the quality of patents, and in 2014, a proposal [pdf] by South Korea, the United Kingdom, and the US on work-sharing.

Also, the Group of Latin and Caribbean countries (GRULAC) requested [pdf] in June that the SCP start a conversation on the possible revision of the WIPO Model Law for Developing Countries on Inventions, and the US has tabled a proposal [pdf] on a study on work-sharing.

Some developing countries also asked that a discussion be started on the disclosure of non-proprietary names (INNs delivered by the World Health Organization) in patent applications and patents. Both requests were opposed by developed countries.

Future Work

The summary by the chair was approved up to the point on future work. Ionescu said the draft future work as “a good solution for everyone” and the result of intense efforts and negotiations. She characterised it as “fair” and “balanced,” with the aim of fulfilling wishes of all delegations.

Group B remarked on the fact that the chair’s summary suggested continuing discussion of the GRULAC proposal on the potential revision of the WIPO model law for developing countries on inventions, and that issue fell outside the five agreed discussion items which had been agreed to, to reflect concerns from all regions.

The African Group voice said the proposed work programme lacked ambition and in particular failed to touch upon access to information and knowledge, economic growth and development. The Nigerian delegate speaking on behalf of the African Group said the group considered priorities to be: patents and health, limitations and exceptions to patent rights, technology transfer, and the quality of patent including opposition systems.

She said that an updated version of the African Group proposal would be submitted in advance of the next SCP meeting.

Iran, however, said that the country could not go along with the proposed work programme because of its inclusion of work-sharing activities. The work programme included a questionnaire to be circulated by the secretariat on implementation of work-sharing and collaborative activities between patent offices.

Iran also opposed the work on confidentiality of communication between clients and their patent advisors. The Iranian delegate also asked that for future session of the SCP informal consultations be held with regional coordinators but also the addition of some member states as it was difficult to have a unified position on some issues within groups. He also said that the Iranian position had been known from the beginning of the session and that the country had provided proposed language.

India, speaking on behalf of the Asia Pacific Group had said that there was no common position in the group.

Ionescu called several times for her proposal to be adopted by member states, despite Iran’s opposition, and asked Iran if they intended “to break the consensus.”

India and Pakistan called for avoiding singling out a country in discussion. Pakistan said every member has a right to its position. Iran said diplomats are following national interest, and requested that the chair be neutral.

During the week, the committee hosted a seminar on patent and health (IPW, WIPO, 3 December 2015), and two sessions when countries shared national experiences. One on confidentiality protection applied to different types of patent professionals, and to national and foreign patent advisors, the other one on inventive step assessment in patent examination, opposition and revocation procedures.

 

Image Credits: WIPO