WIPO Patent Law Committee Cinches Agreement On Future Work

With the threat of suspension of work looming, the World Intellectual Property Organization Standing Committee of the Law of Patents (SCP) agreed to a minimal programme of work, which includes exceptions and limitations to patent rights, quality of patents, and patents and health. Delegates made significant concessions on all sides, but the Africa Group expressed particular disappointment in the limited commitment to work on the patents and health topic.

The 19^th session of the WIPO patent law committee met this week from 25-28 February, adjourning near midnight on the last day. Although member states remained divided on key issues, most were relieved to have come to an agreement.

Meeting documents are available here.

According the chair’s summary [pdf], future work includes 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.

Meeting Chair Vittorio Ragonesi, legal adviser for the Italian Ministry of Foreign Affairs, told Intellectual Property Watch, “The work programme is very minimal, but at least, we’ll keep working. It’s very important that we continue because this is the only multilateral forum to work on the international patent system.”

Toward the end of informal negotiations on 28 February, debate narrowed in on patents and health and quality of patents. The Africa Group pushed hard for more ambitious work on patents and health, included exploration of obstacles countries face using health-related patent flexibilities. Group B, representing developed countries, meanwhile wanted to move forward on a questionnaire to identify definitions and criteria used by member states in defining quality of patents. These priorities are reflected in the “Draft informal proposal by the Chair on future work in the SCP,” [pdf] which circulated earlier in the day.

Low Ambition on Patents and Health…

Following the meeting close, a delegate from a developed country said, “Our biggest win this week was not running this committee into the sand.” But for others, the pressure to keep the committee alive resulted in too many concessions.

During the closing remarks, Algeria, on behalf of the Africa Group, said, “The SCP must make more consequential and useful progress on patents and health. Our countries suffer on a daily basis of a status quo imposed by a patent system that only considers the demands of rights holders.”

“At the end of this session, the African Group found itself alone with the responsibility to continue or to block the work of this committee. Faced with this choice, the group decided it favoured the committee, and the work of this organisation,” the delegate from Algeria said. “We hope that the Group will not have to save this committee every session.”

According to the chair’s summary, on patents and health, members agreed to “Organize during SCP/20 a sharing session on countries’ use of health-related patent flexibilities.”

As expressed in their opening statement [doc], for the Africa Group, exploring challenges countries face in making use of health-related patent flexibilities was a top priority, as outlined in the proposal submitted by South Africa on behalf of the Africa Group and the Development Agenda Group (SCP/16/17). This proposal was also supported by the Asia Group.

This proposition was strongly opposed by Group B, representing developed countries, which favoured the US delegation’s proposal (SCP/17/11) on studying how the patent system promotes public health.

Nonetheless, several representatives of developing countries expressed relief outside of the meeting that the patents and health topic remained part of the SCP’s future work.

…And Low Ambition on Quality of Patents

If patents and health was the near-redline for the Africa Group, and other developing countries, quality of patents was the equivalent for the US and other developed countries.

The United States’ opening statement [pdf] focussed on progress the country has made in aligning the patent system to its international partners with the implementation of America Invents Act (AIA) and the “first inventor to file” provision. The US delegate also pointed to “initiatives aimed at improving the quality and efficiency of the patent examination process” through work sharing programs with partner patent office.

In the area of patent quality, the US and other developed countries hope to make progress by moving forward with a questionnaire on quality of patents as proposed in the past by the United Kingdom and Canada (SCP/18/9).

Reticent to any move toward international harmonisation of patent systems, the Africa Group, and other developing countries, asked for more time to allow national patent offices to review the questions before moving forward with the questionnaire.

Work on quality of patents is much less ambitious than the options presented in the chair’s earlier draft. The SCP agreed to the “compilation, based on information received from Member States, of work-sharing programs among patent offices and use of external information for search and examination.”

Exceptions and Limitations to Patent Rights

Playing a key role in moving the SCP toward an agreement, the delegate from Brazil noted in his closing remarks, “It’s clear that no delegation is fully satisfied with the result so far. But, we have managed to come together on a common result, and that is important.”

Brazil came to this session with a new proposal on how the committee could address exceptions and limitations to patent rights (SCP/19/6) involving analysis of exceptions and limitations most commonly used by countries and a seminar exploring these areas during the next SCP.

While the seminar on exceptions and limitations was not in the chair’s first draft, a half-day session made it into the final work plan. On this issue, the WIPO secretariat will prepare a document on how member states have implemented five exceptions and limitations including private and/or non-commercial use; prior use; use of articles on foreign vessels, aircraft and land vehicles.

On the remaining exceptions and limitations, including compulsory licensing and/or government use, the secretariat will prepare a document on how they are implemented. A follow-up half-day session will be held during the 21^st SCP session.

For the next SCP session, three dates have been proposed and most delegates were partial to holding the 20^th SCP starting 9 December.