Patent Meeting Debates Linkages With Development; Exceptions & Limitations

Questions on how best to link patent law and development issues led the opening discussion at this week’s World Intellectual Property Organization meeting on patent law. A WIPO study on exceptions and limitations was discussed Monday and Tuesday, with talk turning toward whether a third-party examination of the issue was needed.

The WIPO Standing Committee on the Law of Patents (SCP) is meeting from 23 to 27 March.

“Most appropriately,” said the delegation of Thailand in its opening statement, “the focus [of the SCP] appears to have now shifted to the more overarching goal of finding a balance between private and public interests, with a view to promoting economic as well as social, educational and cultural development for the international community as a whole.”

Discussions should therefore be undertaken “in a manner where the public policy concerns are taken into account while discussing the patent system,” said Sri Lanka, on behalf of the Asian Group.

Of specific concern to member states is an upcoming July conference on global issues, as well as linkages between the SCP and other WIPO committees that focus on matters of concern to developing nations.

Connecting WIPO Committees

The work of the SCP, said the Thai delegation, “cannot be regarded as repetitive to the work carried out by the Committee on Development and IP (CDIP)… the two committees can, and do, complement each other.”

“The CDIP alone cannot totally move WIPO into a development-oriented direction,” the statement added, as the WIPO Development Agenda “requires the concerted work of all WIPO committees.”

But not all delegations agreed. “Given WIPO’s limited resources,” said Germany on behalf of the ‘Group B’ developed nations, “particularly in this time of economic uncertainty, Group B believes that it is extremely important that the SCP not duplicate the work being undertaken in other WIPO Committees.”

This reference to “duplicative work” is generally viewed as a denial of the linkage between SCP work and the work of the CDIP, as well as the work of the Intergovernmental Committee on Traditional Knowledge, Traditional Cultural Expressions and Genetic Resources, sources from developing nations told Intellectual Property Watch.

Challenges Of Global Challenges Conference

Senegal, on behalf of the African Group expressed concern that this conference would be done in a way that went outside of its mandate as given under the previous SCP meeting last June (IPW, WIPO, 20 March 2009).

The conference has moved from focussing on a specific set of public policy issues and their interaction with patents, said a developing country delegate. Now, it is no longer just on patents and no longer on specific issues – instead, it has turned to a very fluid and non-definable examination of “global challenges” and IP law. “We need to revert back to mandate,” added the source.

WIPO Director General Francis Gurry said in his opening statement that he recently held consultations on aspects of the conference, and one item he is adding to the agenda is disability. He raised it in the meeting because although access to reading material by the blind and visually impaired is mainly a copyright access issue, it also has a patent-related side in technology. It also has an “important” development dimension, he said, as a significant percentage of visually impaired readers are in developing countries.

Exceptions and Limitations

Discussions Tuesday focussed on a WIPO secretariat report on exceptions and limitations, and whether and where further work is needed. Four reports on different patent policy issues were prepared by the secretariat for this week’s meeting. The others—on patents and standards, attorney-client privilege, and the sharing of patent information—will be discussed later this week.

The Asian Group “feels that regional free trade agreements and bilateral free trade agreements and the provisions for exception and limitation are not covered by this preliminary study,” said a copy of their statement obtained by Intellectual Property Watch.

Therefore, the group “proposes as the second step… to conduct a specific study on exceptions and limitations, covering all the aspects, and with the experts outside of the WIPO.” Academic institutions were suggested as a place to draw experts. The proposal was supported by several developing countries.

Developed countries in general seemed less keen, though the only formal intervention during the meeting in opposition to the study as of press time was Switzerland, said several sources.

Another developed country delegate not from Switzerland told Intellectual Property Watch the idea would be a “waste of time” and that the SCP should be an instrument towards a goal other than discussion.

A delegate from the US separately said to Intellectual Property Watch that during the financial crisis, maintaining the innovation system as it is in everyone’s interests.

A decision on whether or not to commission a further study is likely to be handled under the “future work” agenda item later this week.