WIPO Patent Law Committee: New Health Proposal, Tech Transfer Tensions

World Intellectual Property Organization members this week are engaged in substantive discussions on patent policy, including a first look at a developing country proposal on public health, a surprising debate over technology transfer, and details of a questionnaire on exceptions and limitations to patents. Also responses to first feedback on a new proposal on patent quality are expected to emerge shortly.

The WIPO Standing Committee on the Law of Patents (SCP) is meeting from 16-20 May [link to documents here]. It is the last planned meeting for the committee before the annual WIPO General Assembly in late September.

[Update: the final summary by the chair is here [pdf].]

The agenda includes patents and public health, patent quality, technology transfer, client-patent advisor privilege, a report on the international patent system, coordination with the WIPO Development Agenda implementation, and future work of the committee (IPW, WIPO, 17 May 2011).

The African Group and the Development Agenda Group, which consists of some 20 cross-regional countries including Brazil, Egypt, India, Indonesia and South Africa today put forward a new proposal on patents and public health.

The 20-point proposal [pdf] includes a range of ideas aimed at ensuring the patent system is not interfering with public health efforts of governments, and that flexibilities developing countries negotiated in existing international trade law can be used when deemed necessary.

In order to protect public health, the proposal states, it is necessary for flexibilities to be adopted at the national level, for bilateral and regional agreements not to restrict use of these flexibilities, and for the safeguards and flexibilities to be “workable in practice, particularly with respect to ensuring access to medicine.”

Therefore, it said, “it will be pertinent for the Committee to discuss the issue of patents and health and draw up a work program that assists countries in adapting their patent regimes and make full use of the patent flexibilities.”

The proposed work programme is composed of three interlinked elements, the proposal says. These include outside expert studies commissioned by the WIPO secretariat, under consultation with members; information exchange among member states and with experts; and technical assistance.

The study would look at challenges and constraints faced by developing countries in making full use of flexibilities to patents both in the pre-grant and post-grant stage. Details would include royalty rates, use of exhaustion of rights, benefits of mandatory disclosure of Non-Propriety Names in patent applications, and an analysis of the use of Markush claims, which are broad patent claims that can apply to a large range of compounds. These last two relate to the public domain, a proponent said.

The proposal also calls for the UN Special Rapporteur on the Right to Health to address the next SCP meeting. Other suggestions include holding of “experience-sharing” sessions on flexibilities, workshops, and creation of a database of patent status of diagnostic tools and medicines for at least 10 diseases including the availability of generic versions.

And technical assistance programmes would more fully address use of flexibilities. The proposal includes links to the WIPO Development Agenda.

“This is comprehensive on what is important for us right now,” said an African Group proponent. “There should be a balance between public interest and patent rights holders. We are focussing as public officials on the public interest.”

“In Africa, we are having problems with access to medicines,” the proponent said. “Even though we have flexibilities, we are not using them.”

Technology Transfer, Patent Quality

Some officials seemed surprised when India, as the chair of the Development Agenda Group, proposed a change to a seemingly quiet technology transfer study being considered by the committee in recent meetings to look at whether patents are an obstacle to tech transfer. The present study does not address the barriers, India said, and it has been asking for two years to revise it to make it more balanced.

India originally proposed an external commission to look at the issue, but it appeared that an agreement would be to hold a short seminar on the issue in the WIPO series on economics.

There was significant discussion on technology transfer today (18 May) and the subject was to be picked up again on 19 May, sources said.

On patent quality, a proposal put forward this week by Canada and the United Kingdom received some discussion. The proponents were planning to consider the comments and come back with some form of response as soon as 19 May, according to an official. An example of questions raised was a request for more information on the definition of patent quality, sources said.

Limitations and Exceptions

Another debate this week is over a 93-question survey on limitations and exceptions to patents prepared by the WIPO secretariat for the meeting on request of member states. Based on discussions during the week, changes are being made to the text based on discussion during the week, and new draft is expected shortly.

The questionnaire arose from an earlier proposal from Brazil on limitations and exceptions to patents that contained three steps. It fits with the first, which is to gather information, a developing country official said.

The non-governmental Third World Network made a statement to the committee calling attention to the need to remove constraints to use of exceptions and limitations.

Russia had a number of proposals for change to the questionnaire, according to a participant.

Complaint about SCP Chair from US

Several key developing countries after today’s meeting complained that the meeting chair, Albert Tramposch of the US Patent and Trademark Office, was favouring developed countries in the proceedings. They charged that he made judgments on their proposals such as to call one “difficult to accept” – even though no member state had said so – and selectively using silence in the room. According to the officials, in a case where there was silence related to a developed country proposal, it was taken as affirmation of the proposal, whereas he responded to silence in relation to a developing country proposal by goading developed country members to respond in opposition. In relation to the questionnaire, which developed countries have sought to analyse more thoroughly, he suggested a six month delay to check for overlap with the WIPO Development Committee, though, according to the sources it could be checked right away by consulting the relevant WIPO staff in-house.

These charges could not be checked with the chairman as of press time.