Discussions on Future Work Stumble at WIPO Patent Committee

30 May 2012

Differences between developed and developing countries plagued discussions at the World Intellectual Property Organization (WIPO) last week, with members unable to reach an agreement on the future work of the Standing Committee on the Law of Patents (SCP).

The SCP was created in 1998 to serve as a forum to discuss issues, facilitate co-ordination, and provide guidance concerning the progressive international development of patent law. The eighteenth session of the Committee took place from 21-25 May in Geneva, Switzerland.

Strong divides on the subject of future work forced newly-elected SCP chair Vittorio Ragonesi to launch informal consultations with members on Thursday. However, the two days of informal negotiations saw members fail to achieve consensus on follow-up activities related to public health, exceptions and flexibilities, patent quality, technology transfer, and confidentiality.

No consensus on patents and health

The relationship between patents and public health proved particularly contentious at last week's meeting, with developed and developing countries butting heads over two different proposals.

The first proposal, presented last year by the Development Agenda Group (DAG) and the African Group, is based on the view that "the patent system should be consistent with fundamental public policy priorities, and in particular the promotion and protection of public health." (See Bridges Weekly, 25 May 2011)

The document proposes a work programme composed of three interlinked elements: studies, information exchange, and technical assistance. The goal of the proposal, Algeria explained on the DAG's behalf, is to "enhance the capacity of states to make full use of existing flexibilities [inherent within the patent system]."

The second proposal, presented by the US at the previous SCP session, calls for a comprehensive study on "the positive impact of patent systems in providing lifesaving medicines to developing countries." It also asks for an examination of the "availability of lifesaving medicines that are not protected by patents, and the reasons for their lack of availability." (See Bridges Weekly, 14 December 2011)

In re-introducing the proposal at last week's session, the US stressed that "the reduction in patent protection for innovative medicines is not the solution to overcoming public health challenges."

"Many other factors other than patents more directly affect the availability of medicines," the US delegate added.

Developing countries, however, felt that the US analysis "is lacking of any evidentiary support" with Argentina noting that "patents stimulate innovation, but costs are a barrier to access to medicines."

For its part, while Chile agreed with the US proposal in that other factors might affect medicine availability, it argued that the SCP should focus solely on aspects of the patent-public health relationship.

"The use of flexibilities...constitutes a legitimate use of measures contained in various international agreements," added Chile.

The US proposal was panned by civil society groups, who questioned whether such suggestions could be damaging to the talks on patents and health. "Developed countries' governments, such as the US, use flexibilities on a regular basis, so it is now puzzling to hear the same countries referring to the use of flexibilities by developing countries as weakening patent rights," the Civil Society Coalition said in a statement.

Likewise, Médecins sans Frontières (MSF) called the US proposal "a step backward in the very promising discussions at WIPO on patents and health."

Talks on patent quality definition stall

The SCP continued last session's discussions on three proposals that are broadly supported by developed countries - a questionnaire from the UK and Canada, complemented by a work programme proposed by the US, and a third document from Denmark. (See Bridges Weekly, 25 May 2011) These proposals aim to address long-standing questions on how best to achieve high-quality patents.

A particularly divisive issue during the talks was the definition of the term "quality of patents," with Egypt, on behalf of the African group, arguing that "we need to understand what ‘quality of patents' means" in order to "ensure that patents granted deserve to be granted."

"To develop a common definition of patents' quality acceptable to all would be very difficult, if not impossible...However, through exploring what criteria member states use to define quality patents, we believe that greater understanding could be promoted in this committee," the UK said  in presenting its joint proposal with Canada.

Little progress on exceptions and limitations

Last week's meeting also saw delegates discuss exceptions and limitations to patent rights, which similarly hit roadblocks.

Delegates welcomed a document by the WIPO Secretariat that included responses to a questionnaire on exceptions and limitations at the regional and national level. The document, delegates said, gave a "much clearer picture of the issue" and is a "good foundation to continue discussions."

Developing countries then urged members to adopt a proposal by Brazil aimed at elaborating a reference manual on exceptions and limitations, and start investigating which of these are effective in addressing development concerns and what the conditions for their implementation should be.

Though developed countries showed some willingness for further discussion of the document, the proposal was not adopted, with the US - speaking on the behalf of developed country group B - warning against "one-size-fits-all" approaches.

Other issues equally divisive

Controversies also emerged on the issue of confidentiality of communications between clients and their patent advisors. In some countries, there is no obligation of confidentiality for non-lawyer patent advisors, which could potentially give rise to cross-border concerns.

Delegates also continued talks regarding the linkages between the patent system and technology transfer, with members reviewing a Secretariat-prepared document that included practical examples and experiences on patent-related incentives and impediments to technology transfer.

While many developed countries welcomed the document, developing countries asked for an expansion of the study, given that it "does not analyse any situation where patents may have acted as a barrier."

"Failure cases are as important as successful stories," concluded Brazil.

Stalled discussions on future work will be carried over to the next session of the SCP, scheduled for 26-30 November.

ICTSD reporting.

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