At WIPO, Differences Remain On Global Priorities In Patent Law

Differences on how nations view patent law and the need for more international harmonisation became apparent this week at the World Intellectual Property Organization annual General Assembly.

A the Assembly, WIPO members plough through all WIPO activities and committees for approval or acknowledgement. The WIPO committee on patent law has been a stage for disagreements over the past year, which were underlined this week at the Assembly. Among the dividing issues are exceptions and limitations to patent rights, patents related to health, and higher standards for granting patents.

The report on the Standing Committee on the Law of Patents (SCP) was noted by the Assembly on 26 September, but gave the opportunity to countries to reaffirm their positions on the committee’s work. In particular, developed countries asked that work carried out in the SCP not duplicate work already addressed in other WIPO committees.

The last SCP session from 25-28 February came close to stalling, with delegates finally agreeing on a work programme (IPW, WIPO, 1 March 2013). It was agreed that the SCP would continue work on exceptions and limitations to patent rights, quality of patents, patents and health, the confidentiality of communication between clients and their patent advisors, and transfer of technology.

Developed Countries Want Work-Sharing, Harmonisation

Group B developed countries said this week they have particular interest in work-sharing programmes among patent offices and the use of external information for search and examination. Belgium on behalf of the group said the SCP should provide guidance for the improvement of the progressive international development of patent law including patent law harmonisation. The SCP, the delegate said, should not duplicate work carried out in other WIPO committees or other international organisations.

The Group of Central European and Baltic States (CEBS) concurred with Group B in particular on patent law harmonisation, so did the European Union.

The United States delivered a long statement in which it said it supports the work programme proposed by the SCP chair (Vittorio Ragonesi of Italy), but that the success of the work programme depends on whether it can be developed in a balanced and targeted manner. The US will not support focussing on exceptions and limitations to patent rights without also having a strong component focused on substantive patent laws, the delegate said.

US Promotes PPH, India Disagrees On Work-Sharing

The US also presented the Patent Prosecution Highway (PPH) as a successful example of work-sharing programmes. The programme embraces 25 patent offices, the US said, and is beneficial to both patent offices and applicants in terms of efficiency and quality. “Far from being a programme that rubber stamps the patentability decisions of one office in another office, the PPH helps participating national offices to make their own speedy … patentability decisions,” he said.

The US said it would welcome further study on work-sharing programmes and on tools that can make the work-sharing more effective, such as IT systems to share information, and ways to increase trust and confidence between the examiners of cooperating offices.

Meanwhile, India took a different perspective on what constitutes patent quality. The country has long introduced in its legislation measures to prevent what India considers to be ever-greening of patents. “We are of the view that the quality of examination of patent applications needs to increase substantially so that we do not create the huge social cost of granting patents to insignificant improvements, which only lead to litigation and create barriers to technology dissemination,” the delegate of India said.

Work-sharing cannot be considered to address backlogs and to be an answer to the improvement of the quality of grants of patent, she added. India said work-sharing would adversely affect capacity of IP offices in developing countries and should therefore not become an area of norm-setting in the future.

Patents and Health

On the work of the SCP on patents and health, the US delegate said flexibilities in patent laws “are not the exclusive solution to the public health problems faced by developing and least-developed countries. A combination of novel voluntary licensing arrangements, such as patent pools, advanced market commitments and global funding together with innovative capacity building would provide a more effective approach.”

The US said it “does not support normative work in this area and opposes the production of recommendations whether by member states or the secretariat.” Any work on this issue must include recognition of the benefit of a strong IP rights regime and the effects that non-IP barriers have on access to healthcare, they underlined.

Technical assistance on the World Trade Organization Agreement on Trade-Related Intellectual Property Rights (TRIPS) should not be developed within WIPO, the US said, as the WTO is the appropriate body with the mandate to determine compliance with the TRIPS, but it supports an information-sharing session as presented by the SCP chair at the last session.

The work done in the SCP on limitations and exceptions, though yielding useful information, should not be pursued in the SCP, the US delegate said. The US supports the WIPO secretariat preparing a document on how five specific exceptions and limitations are implemented in the member countries, at the next SCP. However, the delegate said, the document should only include inputs by member states, without any analysis or evaluation by the secretariat.

On technology transfer, the US said it does not find acceptable that further work be carried out only on “alleged impediment created by the IP system.”

India, said it is satisfied with a “balanced work programme” of the committee, which retained issues such as patent and health, transfer of technology and exceptions and limitations to patent rights. On technology transfer, India said the “various impediments in licensing agreements” relating to the transfer of technology should be studied so that “appropriate steps can be taken” to address the issue.

Brazil, in its national capacity, said the country had great interest in exceptions and limitations to patent rights as it is relevant to an adequate and balanced patent system. A flexible policy space is necessary to allow countries to develop and adopt the set of exceptions and limitations that suits them best, independent of their level of development.

The use of exceptions and limitations by members to improve their IP protection system is a core value of the WIPO Development Agenda, he said, in particular answering to recommendations 22, but also 3, 10, 11, 12 and 14. Brazil has tabled a proposal [pdf] on limitations and exceptions at the SCP.

Brazil said it supports the African Group and Development Agenda Group proposal [pdf] tabled in the SCP on patents and health. Providing access to essential medicines at affordable prices is a goal shared by all countries, the Brazilian delegate said, and is a necessary step to achieve the United Nations Millennium Development Goals. The WTO Doha Declaration on TRIPS and Public Health “conveys the understanding that health technologies are different from other products and should not be treated as a commodity,” he said.