At WIPO, Nations See Different Needs From Patent System

An important international platform that has seen stark differences in the past, the World Intellectual Property Organization Standing Committee on the Law of Patents (SCP) began a weeklong meeting today on improving the patent system with parties promoting their own interests and asking straightforward questions of others.

The SCP is meeting from 27-31 January. The meeting documents are available here.

“The SCP offers an exceptional, and one of the very few, multilateral fora where all stakeholders in the patent system can engage on questions that are global in nature and where they can contribute to shaping possible common solutions, while taking in to account the individual situation of each country,” WIPO Deputy Director General James Pooley said in opening remarks on behalf of WIPO Director General Francis Gurry.

The committee has a substantive agenda for the week. It is looking at a number of reports prepared by the WIPO secretariat on issues such as a variety of exceptions and limitations (private and/or non-commercial use; experimental use and/or scientific research; preparation of medicines; prior use; use of articles on foreign vessels, aircraft and land vehicles).

It also is looking at the quality of patents based on a secretariat document on work-sharing programmes among patent offices based on information collected from member states. There is a new proposal, SCP/20/11 REV., this week on “work-sharing between offices to improve efficiencies of the patent system,” put forward by South Korea, the United Kingdom and the United States.

And starting tomorrow (28 January) it will look at patents and health, which will include a “sharing session” on countries use of health-related patent flexibilities.

Another issue is confidentiality of communications between clients and their patent advisors, which would cover cross-border communications.

And the committee will tackle technology transfer based on a secretariat paper on further practical examples and experiences on patent-related incentives and impediments.

On the final morning, the committee will host a seminar on exceptions and limitations to patent rights. Discussants are scheduled to include: WIPO Chief Economist Carsten Fink: Cathy Garner, a board member of the Council on Health Research for Development (COHRED); and former European Patent Office Chief Economist Nikolaus Thumm, now a visiting fellow at the Max Planck Institute in Munich.

Members approved Mokhtar Warida of the Egyptian mission in Geneva as chair of the committee, and a Chinese official as vice-chair. Some developed countries indicated a preference for chairs to be technical experts from capitals in future.

Pooley said the diverse agenda “allows the committee to progress in the identification of best practices worldwide and to provide material to national policymakers.”

A key topic historically for the SCP has been harmonising national patent laws to simplify and reduce the cost of patent processing. Pooley said “the ‘convergence’ of national patent laws in key aspects of the patent system that has been under discussion for years shows that member states are considering best practices when it comes to policy design.” He cite the America Invents Act, which moved the United States toward a first inventor to file system, and Europe’s move toward a unitary patent and patent courts as “examples of openness to changes that bring improvement.”

Multiple Views of Patent System

In the committee room today, however, delegates had questions and concerns. A number of countries called for a balanced approach in the committee, and there were essentially two views on what is most important. At week’s end, members will try to agree on future work on the committee.

In general, the two “sides” of the patent issues described different needs and wishes for the committee. But it appeared that the spirit on the first day was one of pragmatism and dialogue, suggesting that discussions for the week could hold the possibility of starting to work toward middle ground that could eventually settle concerns while still advancing the patent system.

Developing countries added an agenda item to consider how the committee’s work relates to implementation of the relevant recommendations of the 2007 WIPO Development Agenda. Developed countries accepted this, but not as a standing or permanent agenda item.

Several developing countries raised points about the importance of taking development, the public interest and the “social function” into account in relation to the patent system. They insist that patent laws should have flexibility to fit national needs and conditions, and so are concerned about moves to harmonise laws, including work-sharing based on programmes like the Patent Prosecution Highway started by Japan and which has become popular among many countries.

India raised concern, for instance, over retaining the national ability to employ policies on “evergreening,” the practice of extending patents on slight variations of existing patented products.

“It is more necessary than ever” to protect the public interest, South Africa said today. Patent quality is not obtained by adopting others’ patent laws, the delegate said, and harmonisation of patent laws may undermine flexibilities. These concepts were echoed by several other large developing countries.

Brazil suggested an assessment of which exceptions and limitations give the greatest benefit for developing countries.

Several countries questioned the secretariat’s report findings of relatively few challenges to use of exceptions and limitations. The secretariat said indicated this was a reflection of information provided by member states. Algeria posited the possibility that no implementation challenges were reported by some countries because they have no implementation at all.

Benin on behalf of least-developed countries said, “The disparity among development levels is why there are so many viewpoints on quality of patents.” They want to make sure that LDCs can make the most use of flexibilities, and they want more technical assistance to help them to use the patent system, so they can make more use of flexibilities.

“We have observed the difficulties other countries have had with the patent system,” the delegate said, so they need a better way of using flexibilities while also respecting the rights of patent holders.

Developed countries, meanwhile, generally showed interest in work on patent quality, opposition systems, patent advisor-client confidentiality, and work-sharing programmes.

The delegate of Greece on behalf of the European Union, captured the spirit of balance and offering an olive branch, saying, “All these discussions [are] with the hope of getting a more efficient and accessible patent system as a whole.”

The EU representative stressed a “readiness” to continue discussions on limitations and exceptions. But, she said, “We emphasise the utmost importance of striking an appropriate balance between work on exceptions and limitations to patent rights and on corresponding legal standards used to determine whether an invention is patentable, as these two topics are closely interlinked.”

On patents and health, an issue sought by developing countries, the EU representative was conciliatory yet clear, saying: “Given the importance of the issue of patents and health for tackling public health problems in developing and least developed countries, we fully understand the interest of these countries to include this topic in the future work of this committee. However, any possible future initiative of the committee in this area should be carefully considered in light of the great incentive the patent system can provide to innovation in order to address the evolving global disease burden, and other health challenges.”

And on technology transfer, another issue pursued by developing countries, the EU representative said it should be “balanced, and objective, and considered in light of the great many examples of the benefits of the patent system to technology transfer, and the relatively fewer examples of the patent system as an impediment.”

On its work-sharing proposal, the United States said work-sharing benefits IP offices of all sizes. They proposed to have a dedicated webpage and an annual conference on worksharing.

Developing countries asked for more time to consider the new proposal.