India Proposes Combined WIPO Meetings On Biodiversity, Patent Harmonisation

India today floated a suggestion for joint meetings of two key committees at the World Intellectual Property Organization in a move that could change the way patents are addressed. The proposal could elevate biodiversity issues of concern to developing countries to the level of patent issues critical to developed countries.

India said that the issue of harmonising patent laws, under discussion in the WIPO Standing Committee on the Law of Patents (SCP), is overlapping with the subject matter being handled in the WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC), a committee strongly promoted by developing countries. The proposal came late on the first of a three-day, informal, closed meeting of the SCP, where proposals for harmonisation of national patent systems has been deadlocked.

Reactions to the proposal appeared to be mixed. India received backing from the United Kingdom, Austria on behalf of the European Union, and China, an informed source said. But countries such as Argentina and Brazil opposed it and, Peru – which historically has been very vocal on biodiversity issues – also is sceptical, sources said. In addition, the United States also raised concerns about the proposal, a source said.

India called for “joint meetings” of the SCP and the IGC, which would, however, remain in their current form and not be merged, the source said. The meetings would only be held “jointly for some time,” the source said, but it remains unclear how exactly this idea would be executed. It could be, sources said, that a meeting of the SCP be extended with some days for the IGC.

The joint meetings would solve the current problem of where to put various issues and it could break the deadlock in the discussions on a patent harmonisation, the source said.

There is still a strong division between developed and developing countries on harmonisation. While the developed countries would like to focus the harmonisation debate on technical issues such as a definition of prior art, grace period, novelty and inventive step, developing countries argue there is a need for a larger debate on the patent system, including disclosure of origin of genetic material and traditional knowledge in patent applications (IPW, WIPO, 10 April 2006).

India indicated that the issue of disclosure of origin, which is also being discussed in the Convention on Biological Diversity, is still very important to the country, the source said.

Since the proposal from India was made in the informal SCP meeting, there is no written version, according to a source. A number of countries said they wanted more information on the idea from India.

US: Urgent Need for Harmonisation

The Indian proposal was made in the afternoon after a slow start to the meeting and informal regional consultations. Earlier in the day, the United States in its statement said there is an “urgent and imminent need” for adopting a sensible work plan for patent harmonisation. This is necessary because of “the lack of consensus as to a way forward in the SCP, as well as the importance of meaningful patent law harmonization to the stakeholders of the patent system.”

The United States also said that harmonisation would increase patent quality. “Agreement on the four prior art related issues would promote higher patent quality throughout the world by promoting a uniform assessment of novelty and non-obviousness,” it said.

The Making of a Work Programme

The current SCP meeting is mandated to come up with a work programme for the SCP, including harmonisation as proposed in the Substantive Patent Law Treaty (SPLT).

This process has been going on for some years but the latest meeting held by WIPO was an open forum on the SPLT on 1-3 March at which all member countries were allowed to invite speakers to discuss all issues and concerns related to harmonisation.

The idea was that this forum should be used as a basis for developing the work programme, some sources say. Sisule Musungu of the South Centre said that WIPO did a very good job on the open forum but at this meeting the member countries “are not capitalising on that momentum.”

South Africa said that the WIPO secretariat should have provided some summaries of the talks at the open forum, which it said had been balanced, that could have been used for this meeting. Two officials from South Africa told Intellectual Property Watch that the developed countries were not interested in the outcome from the open forum. The officials also said that there was no empirical evidence that the four issues that the United States, Japan and the European Union wanted to discuss would be good for developing countries.

Another source argued that it would be too difficult for the WIPO secretariat to write up a report based on the open forum, with another one emphasising that it had only been supposed to be an oral forum. A developing country source said that countries should be allowed to report from the forum.

A Brazilian official said that it is important to have a critical look at the entire patent system, as had been done at the open forum, instead of “jumping into treaty-making mode.”