Stakes Are High For WIPO Patent Harmonisation Meeting

The stakes are high for many participants in a 1-2 June negotiation at the World Intellectual Property Organisation, as the future of efforts to harmonise international patent laws is on the table.

Developing country governments and non-governmental organizations raised concerns in the lead-up to this week’s Standing Committee on the Law of Patents (SCP) meeting that WIPO and leading developed countries are working to win support for a proposal for patent harmonization created in an informal invite-only consultation with WIPO Director-General Kamil Idris in Casablanca, Morocco in February.

At the Casablanca “consultation” only one vocal member of a 14-nation group known as the Friends of Development that seeks an alternative approach was present. That country, Brazil, offered the lone objection to the Casablanca outcome. The WIPO secretariat in March released a “future work program” for the SCP that includes the Casablanca outcome.

In Casablanca, general agreement was reached to proceed with long-stalled substantive patent law treaty 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 — this year kicked off a negotiation of their own on harmonisation.

The trilateral nations agreed to a work plan beginning with issues that might be politically obtainable. Two working groups were formed, one on substantive patent law harmonization chaired by Australia, and the other on development issues, including development and genetic resources and jointly chaired by the Netherlands and the United Kingdom.

The trilateral effort was accompanied by comments from U.S. industry and elsewhere suggesting that if WIPO could not deliver harmonisation, those governments would work outside the organization, effectively marginalizing the Geneva-based body in an important area to its function and revenue.

Due to the deadline for this story, WIPO officials could not be reached for comment.

Shortly after the Casablanca meeting, the Friends of Development issued a statement countering the Casablanca outcome by urging a closer adherence to the mandate of last fall’s General Assembly, greater attention to a development agenda approved for discussion at that assembly, and negotiations based upon a broader proposal than that offered by the trilateral nations. That statement also is included in the SCP meeting documents.

India later announced it had joined the Friends of Development position, clarifying that the Indian scientist who chaired the Casablanca meeting did so on his own behalf. Chile also was said by sources to have clarified that its representative in Casablanca attended on his personal capacity and that the government maintains the position it took at the General Assembly. This was not confirmed with Chile by deadline.

“This is likely to be a tense, difficult meeting,” said one participating developing country official.

Developing countries will be on alert to see that proper procedure is followed in the meeting so that the outcome reflects the positions of all WIPO members, the official added. Countries are upset at the prospect that the Casablanca outcome may be worked into SCP meeting despite having been an informal consultation with hand-chosen members.

Last fall’s General Assembly decided not to consider a similar proposal to the trilateral one, but called for the WIPO director general to set dates of the next SCP meeting after holding informal consultations with members. Countries unhappy with the Casablanca outcome argued that the director general was not directed to hold substantive discussions in the consultations, and further contended that they were not consulted.

The Friends of Development broader proposal outside the SCP is to reorient WIPO to better reflect developing country concerns, such as ensuring that flexibilities under the World Trade Agreement on Trade-Related Aspects of Intellectual Property (TRIPS) are ensured. Those flexibilities allow countries to side-step intellectual property rights on behalf of their public interest.

The Friends of Development includes Argentina, Bolivia, Brazil, Cuba, Dominican Republic, Ecuador, Egypt, Iran, Kenya, Peru, Sierra Leone, South Africa, Tanzania and Venezuela. Their development agenda proposal is the subject of ongoing discussion in an inter-sessional intergovernmental meeting (IIM), next meeting in late June. The IIM was designated by the WIPO General Assembly last fall.

Non-governmental groups also are expected to observe the SCP meeting. Médecins Sans Frontières sent comments to WIPO urging it to “cease its pursuit of higher levels of intellectual property protection through the Substantive Patent Law Treaty (SPLT) process that would close off the flexibilities that are available under TRIPS Agreement and affirmed in the Doha Declaration on TRIPS and Public Health. MSF fears the birth of a ‘TRIPS 2’ agreement even before we have begun to evaluate the effect of the full implementation of TRIPS Agreement. The SPLT process should therefore take its guidance from the outcome of the debates on the WIPO development agenda rather than moving ahead disconnected to this process.”