WIPO Gives Overview Of Its Legislative Assistance To Developing Countries

The World Intellectual Property Organization provides legislative assistance to countries upon request. This week during the meeting of the Standing Committee on the Law of Patents, the secretariat explained how WIPO provides this legislative assistance. This followed a 2015 proposal to revise WIPO’s 1979 Model Law for developing countries on inventions. The proposal was not accepted by developed countries concerned over the extent of the task, and some pointing out that WIPO is delivering more effective tailored legislative assistance.

The 27th session of the Standing Committee on the Law of Patents (SCP) is taking place from 11-15 December.

In June 2015, the Group of Latin American and Caribbean countries (GRULAC) tabled a proposal [pdf] to revise the WIPO 1979 Model Law [pdf] for developing countries on inventions.

Marco Aleman, director of the WIPO Patent Law Division, presenting the WIPO legislative assistance today, said that when the proposal was tabled, many delegations said the model law was useful when it was established but there were other ways to provide assistance to countries, put in place by WIPO and which were considered more appropriate.

At the last session of the SCP, it was agreed that the secretariat would provide a presentation on its legislative advice. Some countries in the past voiced concerned about WIPO’s legislative advice on patents, in particular because they said WIPO might not be providing countries with enough information on the flexibilities included in the World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).

The WIPO Legislative and Policy Advice Section (LPAS) operates under the Patent Law Division, and covers patents, utility models, trade secrets, and layout designs of integrated circuits, Aleman explained.

When providing legislative assistance and drafting patent laws, the LPAS takes several factors into consideration, such as international obligations, patent policy objectives, level of economic development, and the level of development of different industry sectors of the country, he said.

The growing complexity of the normative framework, in particular because of national laws that might not be related to patent law but still impact the normative framework, and regional and bilateral agreements, have added challenges to the legislative assistance, Aleman said. He added that those challenges are better addressed when WIPO provides legislative advice than the possibility of just providing a text, like in the case of a model law.

In legislative assistance, one size does not fit all, he said.

WIPO: Our Advice Includes Flexibilities

The LPAS also has to take into consideration Recommendations 13 and 14 of the WIPO Development Agenda, Aleman said. Recommendation 13 calls for WIPO’s legislative assistance to be development-oriented and demand-driven, taking into account the priorities and special needs of developing countries and least-developed countries (LDCs). Recommendation 14 asks that WIPO make available advice to developing countries and LDCs including the understanding and use of TRIPS flexibilities.

“It is clear that the advice provided to a developing country of high income level for example is not exactly the same as the one provided to a developing country with a low level of income or to a least-developed country,” he said.

WIPO follows recommendation 14 and does inform countries on the use of TRIPS flexibilities, he said, adding that in WIPO’s advice to member states, the LPAS identifies the different options for countries, so they can incorporate the one that they chose.

There is a distinction to be made when one refers to flexibilities, he said. Flexibilities refer to the choice of the implementation of the multilateral treaties and transposing the countries’ commitment at the national level. It is in this area that legislative advice is relevant. However, flexibilities also refer to the implementation of that law and the decisions taken by IP offices and judiciary authorities in their interpretation of the law, and in that case “legislative advice has nothing to do,” he said.

Legislative assistance is provided upon request, is an advice that is bilateral and confidential, neutral and non-binding, Aleman explained. WIPO provides legislative assistance in the implementation of a national patent system, drafting or revising patent laws and regulations, and provides policy advice in the field of patents, he said. Advice is provided in writing, and sometimes in the form of comments on drafts prepared by countries, he added.

WIPO also provides capacity building through seminars and workshops organised to help the understanding of multilateral commitments and the flexibilities available in those framework, he said. WIPO also has specific programmes to address concrete needs, such as the Inventor Assistance Program, he added.

Challenges faced by the LPAS beyond the increasing complexity of the international legal framework include increases in: complexity in getting the right balance among different policies; complexity in certain technology fields; requests for legislative assistance and policy advice; and complexity in the assistance requested, he said.

Beneficiaries Thankful, African Group Calls for Technical Assistance

Some countries said they have used the LPAS and expressed satisfaction. These included Colombia, Belarus, China, and the Dominican Republic.

Switzerland for Group B (developed countries) said WIPO is the competent entity to provide legal and policy and technical expert advice on intellectual property, including patents. When necessary, the delegate said, WIPO is in a position to consult or cooperate with other UN agencies or intergovernmental organisations “in order to provide thorough advice and assistance.”

A solid patent system functions as a driving force of innovation and promoting creativity, he said. The assistance provided by WIPO in establishing or improving patent systems helps countries participate in the global innovation economy, he added.

Senegal for the African Group said the technical assistance and legislative assistance is not sufficient to enable LDCs and others to over the challenges they are facing. The delegate said technical assistance should complement legislative assistance.

Indonesia said it is important that WIPO technical assistance in the field of patents make sure that countries make full use of the flexibilities available in the international legal framework. The delegate added that a revision of WIPO model law would be a useful exercise which could help WIPO in its Development Agenda. Such a revision should take into consideration different levels of development and avoid substantive harmonisation, he said.