WIPO Patent Harmonisation Effort Stalls Until September Assembly

Government negotiators addressing the global harmonisation of patent systems today could not agree on a work programme for a key World Intellectual Property Organization committee, effectively stalling debate on the issue until the end of the year.

“It is not yet the time,” said Ron Marchant, chief executive and comptroller general of the United Kingdom Patent Office, who chaired the end of the meeting on the issue. Nations “need to rethink” their positions, he said.

The 10-12 April informal session of the Standing Committee on the Law of Patents (SCP) was mandated by the October 2005 WIPO General Assembly to define a work programme for a formal five-day SCP meeting later this year. That meeting now will not take place.

The outcome effectively grounds a long-standing push by the developed nations holding most of the world’s intellectual property to harmonise global patent systems through WIPO.

“It’s a frustration,” said an official from the Group B developed countries. “We came here with a constructive spirit and were willing to find a way to include the concerns of others. We wanted to have a work plan.”

Another developed country official said it was a “difficult situation,” but said it was a “good thing” as it was “an honest discussion.” The official said that of the three WIPO committees conducting policy negotiations, “we’ve stopped in one.”

“People are going to have to rethink their paradigms,” he said.

WIPO has been under pressure, at least indirectly from US industry groups, to get movement on patent harmonisation. An indication of the importance of the issue to WIPO came from a closed breakfast meeting with key officials held by WIPO Director General Kamil Idris. One participant said Idris urged negotiators to make progress.

“We all worked very hard toward a result,” an official from the 15-nation Friends of Development group said. There were “demonstrations of flexibility in the way that we discussed each other’s view.”

“There were indications that countries had moved away from their previous entrenched positions but it was not enough to reach agreement,” the official said.

Developed countries, the United States and Japan in particular, remained firm that negotiations should centre on four key areas of substantive patent law. Developing countries sought to address nine issues, and agreed to address all 13 together, but it had to be on equal footing. (IPW, WIPO, 11 April 2006)

Earlier on the last day, the European Union privately signalled a willingness to consider a combination of the four legal issues sought by Japan and the United States and several issues from the list of nine from the Friends of Development. Their suggestion showed an openness to certain parts of developing country demands on the disclosure of origin of genetic material in patent applications. But they did not show openness to terms on prior informed consent and the sharing of benefits from that material.

After spending much of the past two days in closed, regional meetings, Thailand on behalf of the Asian Group offered a last-minute suggestion to address the first four issues on the first two days of the five-day SCP, followed by two days on any remaining issues. The suggestion failed apparently because developed countries could not agree to place the other issues on the agenda, and developing countries insisted their other issues be treated on “equal footing” with the first four, rather than prioritised.

Possible Impact on Other WIPO Committees

Some officials raised concern that the end of discussion on patent harmonisation could remove a bargaining chip for developing countries seeking major reform of WIPO toward development issues, and other policy changes related to protection of genetic resources and traditional knowledge.

“This [patents] was the big motor behind everything,” one official said.

Francis Gurry, WIPO Deputy Director General overseeing patents, called the meeting “very positive” since it allowed all sides to put their ideas forward clearly. “Countries better understand their positions,” he said in an interview. Gurry said WIPO will continue to be involved in a great deal of patent activity, especially through its Patent Cooperation Treaty, which harmonised procedures. “It’s not like WIPO isn’t doing anything on patents,” Gurry said. But the SCP meeting “was the work programme on the new issues.”

“We must cultivate a spirit of give and take,” said a Zambian official.

But another developing country official said, “I think it is good sometimes to give some sort of shock treatment to those on the extreme ends” of the issues.