Warning over patent-harmonization approach at WIPO
Developing countries have expressed misgivings about ongoing attempts to harmonize international patent laws, concerned that a uniform patent regime would further curtail their flexibility under the system to address key public policy issues.
by Cecilia Oh
GENEVA: Developing countries sounded a note of warning at the end-September meetings of the World Intellectual Property Organization (WIPO) General Assemblies against proposals for “development of the international patent system” and a “one-size-fits-all” approach to patent harmonization.
The WIPO Director-General’s initiative for a “WIPO Patent Agenda” had been circulated in a memorandum for the annual assemblies of the WIPO members.
Speaking at the assembly on the issue, several developing countries said they were not prepared for harmonization of the international patent system based on a one-size-fits-all model that ignores the needs and interests of developing countries.
A constructive response to the international patent system and its implications for developing countries, they said, will require further study and a firm resolve to take account of developmental priorities. Otherwise, further harmonization of the patent system may become, in the words of the Indian delegate, “the proverbial straw that breaks the camel’s back”.
Speaking during the 37th WIPO Assemblies, many of the developing-country delegations voiced concerns that the ongoing patent-harmonization process in WIPO would further reduce available flexibilities in the system to address public policy issues, including those related to access to medicines and biopiracy of genetic resources and traditional knowledge.
The subject of the “WIPO Patent Agenda” had been listed as item number 12 on the agenda for the weeklong WIPO Assemblies (23 September-1 October). And the harmonization issue had been scheduled for discussion on the third day of the meeting. However, the issue was only discussed on the evening of the fifth and last day of substantive discussions (a Friday), prompting some delegations to wonder and complain in private whether it was an attempt to delay or prevent a proper discussion of the matter.
When the discussion did take place (on a specific request from Barbados, which was concerned that there would be insufficient time for a proper discussion), the developing countries took the floor to express concern that the WIPO document - “WIPO Patent Agenda: Options for development of the international patent system” (A/37/6, dated 19 August 2002) - was too focused on the need for harmonization of the patent system and did not accurately reflect the divergent views on the process.
Brazil pointed out that the harmonization exercise in the Standing Committee on the Law of Patents (SCP) indicates that the process is far from consensus. “There is lack of general support for harmonization,” said Brazil. Argentina agreed, stating that the Patent Cooperation Treaty (PCT) had not yet been ratified and the Substantive Patent Law Treaty (SPLT) process was still at a very preliminary stage.
Barbados, speaking on behalf of the Group of Latin American and Caribbean Countries (GRULAC), said that the secretariat document was “not balanced”, since it seems to focus principally on the interests of patent holders. The GRULAC believe that the document “should have avoided a one-sided approach that could strengthen a ‘one-size-fits all’ model of protection of IPRs [intellectual property rights].” A balanced approach, Barbados stressed, must be adopted in discussions on a possible international patent agenda so that the different interests and levels of development of WIPO member states could be taken into account.
South Africa congratulated the WIPO secretariat for its comprehensive and clear document because “we can understand everything it says”, but added “whether we agree with it is another thing.” The PCT reform and substantive patent law harmonization, South Africa said, “may not be useful” if policy concerns were not addressed.
Expressing support for the GRULAC statement, South Africa added: “Harmonization should only be resorted to after all these issues are resolved. WIPO has started good work, so it would be a shame if the wrong conclusion were reached. There should be no haste.”
There is a need to be careful and not to tip the delicate balance, which might strengthen the interests of a small group of countries in the harmonization process, cautioned Egypt in its intervention. There is no common agreement as yet, but discussions in the SCP have led some countries to perceive that the process will lead to harmonization of laws of a small group of countries that does not reflect the different positions of the majority of the member states in WIPO, said Egypt.
In its intervention, China said that there was a need for the intellectual property (IP) system to enshrine the spirit of fairness, appropriateness and efficiency. The reform of the IP system should have the objective of expediting procedures and reducing costs, and result in benefits in terms of the dissemination and promotion of science and technology for all other nations of the world. China urged WIPO to fully consider the interests of developing countries and, in this context, pay attention to the reduction of costs of technology transfer so that developing countries can better utilize the patent system. The establishment of a new international patent system is a complicated and long-term process, said China. Therefore, there is a need to carefully listen to the member states’ opinions and emphasis should be on the balance of interests between patent holders, the general public and the interests of member states.
Egypt also echoed the need for integrating development needs into the patent system, noting that the agenda should be one for development. Similarly, the Africa Group said that the patent system should be a means for economic and social development.
Uganda, picking up on the same point, said that the role of IPRs in advancing the goal of socioeconomic development cannot be over-emphasized. “The promotion of intellectual property is not an end but a means to attain objective of member states; for example, development,” said Uganda.
Developing countries also referred to the WTO’s Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) as an example of harmonization which has resulted in a curtailment of their ability to effectively tackle public policy matters. They cited the debates in the WTO TRIPS Council, particularly on access to affordable medicines and patenting of genetic resources and traditional knowledge, as examples of policy concerns that require resolution.
India noted that implementation of the TRIPS Agreement “has not been without problem”. The adjustments required for TRIPS-driven changes have already attracted significant public awareness, and “a TRIPS-plus agenda (brought on by the harmonization process) would not be welcomed”, said India.
Implementing the TRIPS obligations has required developing countries to make changes to both national legislation and national organizations, said Egypt. These are long-term measures to which many developing countries have devoted great efforts and resources, and it may not be feasible for developing countries to shoulder new burdens.
Egypt said it would be difficult to follow the approach adopted in the WIPO document, which would affect the margin of sovereignty of developing countries. “There should be flexibility in line with the needs of the health and social systems,” Egypt added.
The Asian Group in its statement (delivered by India) said that the evolution of the patent system must ensure that it does not hamper the ability of societies to deal with urgent policy issues. “The challenge posed by HIV/AIDS served to highlight this aspect of patents, but it is not the only policy concern that confronts the international community. As is sometimes the case, the law of unforeseen consequences might lead to outcomes not necessarily favourable to those who are the most vulnerable amongst us - the people living in developing countries. Public welfare is best served by addressing concerns head on - not burying them.”
South Africa said that the patent agenda should not be concluded without addressing the public health issues. “Compulsory licensing, parallel imports should be addressed. In various international treaties and domestic legislation, there are provisions (for compulsory licences and parallel imports) but they are not very workable, therefore WIPO should take the lead in this area,” said South Africa.
Traditional knowledge and biodiversity should also be considered. Developing countries are rich in biodiversity, genetic resources and traditional knowledge, therefore “it would be disturbing if we come up against the problem of having raw materials but not being able to have the manufacturing capacity”, said South Africa. On this point, Egypt also highlighted the need to prevent illicit use of genetic resources and traditional knowledge through the patent system.
A number of countries expressed disappointment that the request for a study (made during the previous Assemblies meeting) to be undertaken on the possible implications of harmonization on developing countries had not been met.
A number of countries in their interventions, including Cuba, Brazil, Argentina, Venezuela, Peru, Egypt and Uganda, called on the WIPO secretariat to prepare the study on the impact of the harmonization process on developing countries.
Brazil expressed regret that the request had not been put into effect. “Lacking such a study which will allow us to weigh the costs and benefits, we are not in a position to agree with the options” (in the WIPO document), said Brazil, which also pointed out that the WIPO document failed to take account of the contribution of NGOs to the debate on the policy issues.
On the subject of a study on the implications of the international patent system, several delegations highlighted the findings of a recently launched report, noting that its conclusions were of great importance in WIPO as well as other international fora.
[The recently published report of the independent Commission on Intellectual Property Rights (CIPR), set up by the UK government, has cautioned developing countries (pp. 130-131) over the WIPO moves for a Substantive Patent Law Treaty and referred to the 1991 moves for a substantive patent law treaty that was “almost signed” as providing “a foretaste” of what would happen in the WIPO discussions. In 1991, the CIPR recalled, while developing countries made a number of proposals during the negotiations, the final treaty was essentially a hybrid of the laws prevailing in a number of developed countries, in particular the US and the EU. As the delegate of one developing country noted, there was a paradox that through a harmonization process, the majority of the countries were being asked to align their law with the provisions of a minority.
[The report suggested that in the process of the new patent agenda at WIPO, “attempts will be made to remove a significant number of flexibilities” currently provided by TRIPS, for example, to qualify “what constitutes a patentable invention and how the [patentability] requirements of novelty, inventive step and industrial application are to be determined.”
[Clearly for developing countries, “the concern must be to ensure that these flexibilities are not surrendered unless it can be shown that it is in their interests to adopt new international rules further limiting their freedom to design appropriate IP policies.”
[The CIPR recommended: “Developing countries should identify a strategy for dealing with the risk that WIPO harmonization will lead to standards that do not take account of their interests. This could be done by seeking a global standard reflecting the recommendations of this report; it could be done by seeking continued flexibility in the WIPO standards; it could be done by rejection of the WIPO process if it appears that the outcome will not be in the interests of developing countries.” (For more on the CIPR report, see TWE #289.)]
In contrast with the views of developing countries, the developed countries generally signalled their support for the harmonization process. Although the majority of the interventions placed emphasis on further harmonization, several developed countries did raise some points of concern, particularly in relation to the quality of IP protection and flexibility in the patentability criteria.
Switzerland said that the emphasis should be on the need for a system that has quality of protection. “Competitors should not shoulder the burden of dealing with protection which should not have been given in the first place,” said Switzerland.
On the issue of patentability criteria, Korea was of the opinion that the definition of the subject matter for patenting should be flexible. “WIPO agenda will be successful if such flexibility is retained,” said Korea.
A number of interventions, including those of the EU and Japan, singled out the overloading of the patent system as an immediate problem, for which further harmonization could present the solution. Denmark, speaking for the EU, said that the processing of large numbers of patent applications is one of the most urgent challenges. The EU was of the opinion that the proposal for regional arrangements to promote cooperation suggested in the WIPO document could be effective. The EU was keen that the harmonization process should continue, and was of the opinion that such harmonization was an essential part of the patent reform process.
Japan agreed that the overloading of the patent system needs addressing. In Japan’s view, the answer lay in priority being given to the discussions on SPLT and PCT reform, and the realization of a world patent system should be encouraged.
Sharing this view, the US supported the idea of a streamlined and harmonized system for granting patents. However, it was concerned that many of the proposals in the WIPO document went beyond WIPO’s mandate, for example, in the ideas related to regional dispute settlement. Such proposals should be discouraged, and more focus should be put on the international patent system, specifically on the SCP and PCT reform.
France took the view that the PCT process had seen significant progress, and national patent protection has seen lowered costs. However, it has also become a victim of its own success, in that there has been much increase in filing. For this reason, France favoured a coherent framework for an international patent system which would provide the system for applying and delivering patents of quality, inspiring confidence and eliminating duplication of work.
France also called for harmonization of the patent system, and urged written opinions on the patentability issue, so as to be able to move forward, since this was an essential part of the IPR system of every country, whatever its level of development.
In its intervention, Canada provided some recommendations for future work on the WIPO patent agenda. Of priority for Canada were the administration of the patent system, the role of the patent system in global fora and enforcement. “The patent agenda we face is ambitious, therefore it is important for member states to work collectively, and to fully reflect the needs of all member states,” said Canada. Canada also proposed focusing on those issues which could yield an early harvest. In this regard, efforts should focus on harmonizing and streamlining process. The objective should be to make things simpler, Canada said.
Another issue is that of genetic resources and traditional knowledge. Here, Canada pointed to the process under way in the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore, and would like to see work in this forum continue to address these issues, whether the eventual conclusions were legal or otherwise.
In his response to the interventions, the WIPO Director-General, Dr. Kamil Idris, said he was very pleased to see such open and democratic dialogue. “That is the precise objective of this agenda item - to provoke deep and wide discussion, because the international patent system is still evolving,” he told the delegates.
Referring to the criticism that the WIPO approach did not adequately balance the interests and views of all member states, Idris said that it was not the intention to marginalize any group of countries.
“The intention is to prepare for a coherent framework for the evolution of the international patent system. Towards achieving a common goal, of course, we are interested in balance, we are not interested in a one-size-fits-all solution, it is not true that we are not interested in balance,” he said.
Referring to the policy concerns raised by the developing countries, Idris assured the delegates that WIPO was well aware of the current debate going on in public health, and that other public policy issues are very well taken care of, the secretariat having established focal points to deal with these issues.
With regard to the study on impacts, he said WIPO was committed to the study and will honour the promise. However, he also said that such a study could not be prepared in a vacuum. “That’s why we are waiting for comments and surveys from the relevant stakeholders, then study will be prepared. ... The study will have to be based on comments from the membership, international organizations and NGOs,” he explained. The harmonization process, he said, is a long-term process, and it is for the member states to provide the guidance to the international patent society and WIPO in crafting the international patent system. (SUNS5203)
Cecilia Oh is a representative and Legal Advisor of the Third World Network based in Geneva
From Third World Economics No. 291 (16-30 September 2002)