Consensus Slips On WIPO Patent Harmonisation Talks

A key group of developing countries this week sent a potential shockwave through fledgling efforts at the World Intellectual Property Organisation to restart talks on the international harmonisation of national patent laws.

The 14-member “Group of Friends of Development” issued a statement on the outcome of a recent WIPO consultation in which general agreement was reached to proceed with talks based on a proposal evolving among the world’s largest patent-producing nations. Those “trilateral” nations — the European Union, Japan, and the United States – have in recent weeks kicked off a negotiation of their own toward harmonisation.

The developing country group offered tempered criticism of the invite-only consultation that WIPO Director General Kamil Idris convened on February 16 in Casablanca, Morocco. The group urged a closer adherence to the mandate of last fall’s WIPO General Assembly, greater attention to the Development Agenda that received approval at that assembly, and negotiations based on a broader proposal than that offered by the trilateral nations.

The countries signing the new statement are the same as the cosponsors of the original Development Agenda proposal: Argentina, Bolivia, Brazil, Cuba, Dominican Republic, Ecuador, Egypt, Iran, Kenya, Peru, Sierra Leone, South Africa, Tanzania and Venezuela. Of the group, only Brazil was invited to Casablanca. Brazil stated its disagreement with the outcome at the time.

Without directly criticising WIPO, the statement could serve to undermine the legitimacy of the Casablanca meeting, according to a developing country official. “By reaffirming our position on the Substantive Patent Law Treaty,” the official said. “Our statement effectively counters Casablanca and makes it clear that the Casablanca statement does not represent any kind of a consensus and has not taken account of our views.”

Asked to comment on the new statement, a WIPO spokeswoman said only that WIPO has received the statement from the permanent mission of Argentina on behalf of the 14 countries, and that it requests the secretariat to circulate it to all member states, which the secretariat will do. She suggested that the Casablanca statement was the product of the member states, and that they should be the ones to comment on it. WIPO has been under pressure from developed countries to get the talks back on track, according to sources.

A spokeswoman at the U.S. Patent and Trademark Office declined to give the U.S. point of view, insisting that it was up to WIPO or the Casablanca consultation chairman, R.A. Mashelkar, to field questions on the get-together.

Mashelkar, the director-general of India’s Council of Scientific and Industrial Research with a reputation as a proponent of intellectual property rights, could not be reached for comment. It is unclear in the aftermath of the Casablanca gathering whether he represented the Indian delegation at the consultation, according to some diplomatic sources.

Mashelkar served last year as the vice-chairman of a commission on intellectual property rights, innovation and public health set up by the World Health Organization (WHO), according to India’s BioSpectrum magazine. The commission looked at data and proposals collected from different intellectual property and public health experts to find funding and incentive mechanisms for the creation of new medicines for diseases that affect developing countries, the magazine said. Mashelkar also was named chairman of the scientific advisory board of APIDC Venture Capital Ltd., which targets biotechnology, it said.

The new developing country statement says that an inclusive, transparent process is key to an effective agenda addressing developing country needs. It also asserts that the mandate of the General Assembly was that the WIPO director general hold consultations to determine the date of the next Standing Committee on Law of Patents meeting, not address matters of substance or establish a work programme, which are to be addressed in mid-April inter-sessional meetings. WIPO’s session runs October to September.

The statement further calls for a reaffirmation of a commitment to multilateralism, of a commitment to negotiating a draft treaty as a whole, including all amendments tabled by member states. Included in the treaty should be provisions on technology transfer, anticompetitive practices, and safeguarding of flexibilities for governments to act in their public’s interest, the countries said.

“Now, in the light of the statement of the ‘friends of development,’ the WIPO Secretariat, definitely, can no longer claim that Casablanca was a “breakthrough,” the official said. “The statement of the friends of development has now opened the door for other developing countries to begin distancing themselves from the Casablanca outcome.”