WIPO Patent Committee Moves Quickly Through Agenda; Heavy Lifting To Come

After months of delay, the Standing Committee of the Law of Patents (SCP) opened a meeting on 25 February at the World Intellectual Property Organization and will endeavour to advance negotiations on highly contentious issues including quality of patents, patents and health, and exceptions and limitations to patent rights.

The 19th session of the SCP was originally scheduled to convene in November 2012, but was pushed back to this week in order to allow for informal discussions on the committee’s future work. The 19th session is scheduled to meet from 25-28 February and meeting documents are available here.

The last meeting, which met from 21-25 May, left the SCP at a standstill, as members were unable to decide on the committee’s future work. A divide between developed and developing countries was particularly apparent on areas such as patents on health, patent flexibilities, and the quality of patents (IPW, WIPO, 26 May 2012; IPW, WIPO, 25 May 2012).

Recognising these difficulties, WIPO Director General Francis Gurry briefly addressed members on the opening day. He made a plea for them to “identify areas where there is a need for action” and where they could “come together to make improvements of the international patent system.” Underlining the importance of the committee’s work, he emphasised that the SCP is the only multilateral forum where discussions on substantive patent issues are taking place.

The 19th SCP agenda includes key patent-related issues such as a report on the international patent system, exceptions and limitations to patent rights, quality of patents, including opposition systems, patents and health, confidentiality of communications between clients and their patent advisors, and transfer of technology.

The agenda was approved with the addition of the development coordination mechanism, which was proposed by the Development Agenda Group. Group B, which represents developed countries, agreed as long as it did not become a permanent agenda item.

Members moved through the agenda at a fast clip, having discussed most of the items by day’s end. SCP Chair Vittorio Ragonesi, legal adviser for the Italian Ministry of Foreign Affairs, kept interventions short and requested that member states refrain from repeating comments made in previous sessions. Several delegates commented that they needed as much time as possible to negotiate future work in informal discussions later this week.

A delegate from a developed country said that despite his “disappointment” following the session last May, he was hopeful that members would come to an agreement on future work for fear that, if not, the SCP would be “shelved” during the next General Assemblies. Indeed, the European Union and the United States said during WIPO’s last annual assembly that SCP meetings should not continue if the committee was unable to agree to a new work programme.

Analysing Exceptions and Limitations Experience

Despite the fast pace of discussions on day one of the patent meeting, the divide between developed and developing countries seemed just as wide as during previous sessions with members camped on their established positions.

Brazil submitted a new proposal on how the committee could address exceptions and limitations to patent rights. During the 14th SCP session, the country had suggested work on the topic in three phases, including an exchange of information on how countries use patent flexibilities, an investigation of what expectations or limitations are most effective, and the development of a manual as a guide to countries.

In the new proposal, Brazil expanded on the second phase, suggesting that the WIPO secretariat “prepare an analysis of Exceptions and Limitations which are most commonly used by Member States” and “a one-day seminar to be held at the next session of the SCP.” The seminar would include a presentation by the secretariat on the analysis, a presentation by the chief economist on the effectiveness of these flexibilities, and presentations from member states on their experiences using exceptions and limitations.

The US raised concerns that Brazil’s suggestions went “outside the competency” of the WIPO secretariat, which it said should not be offering “generic advice”. Additionally, the country said, “each nation is sovereign to make their own decisions,” which includes implementing “stronger intellectual property rights to attract investment.” The US concluded that it could not support the study suggested in Brazil’s proposal but could support a one-day seminar with case studies.

Focussing on Inventive Step

On the agenda item on quality of patents, Spain brought a new proposal to the table on how to improve understanding of the requirement of inventive step. As explained in the proposal, “Most professionals in the world of patents agree that the evaluation of inventive step is the most controversial and arduous of the patentability requirements evaluation process.”

The country suggests examining different criteria for evaluating inventive step, but it would not “attempt to achieve harmonization” on the topic. Ireland, on behalf of the EU, supported Spain’s proposal, as well as quality patent proposals made in previous SCP sessions by Canada and the United Kingdom, Denmark, and the US (All 25 February EU interventions available here [doc]).

Another divisive topic, patents and health, was addressed by member states today briefly, but many countries chose to hold their comments until following a presentation on the recently released trilateral study, “Promoting Access to Medical Technologies and Innovation: Intersections between public health, intellectual property and trade.” The WIPO, World Health Organization, and World Trade Organization secretariats will present the study during the 26 February morning session.

Following the presentation, member states will revisit patents and health, address the additional agenda item on the development coordination mechanism, before rolling up their sleeves to negotiate future work.