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Info Service on Intellectual Property Issues (Nov14/04) WIPO: Member States failed to reach consensus on future work of SCP Geneva, 10 November (K M Gopakumar*) – Member States failed to reach a consensus to finalise the future work of the Standing Committee on the Law of Patents (SCP) of the World Intellectual Property Organization (WIPO). The 21st session of the SCP, which was concluded on 7 November, could not agree on future work on various work programs currently under the SCP, for inclusion in the agenda of the 22nd session of the Committee. As a result, the 22nd session will discuss only two studies as per the decision of the 20th session of SCP, which was held on 27-31 January 2014. The breakdown in the negotiation was primarily due to the stand taken by Group B (a developed country grouping within WIPO) to not accept the proposal of two studies from developing countries under the work program on patents and health. According to practice, the final agenda item of the SCP is to negotiate and finalise the agenda for the next session under the agenda item of “future work”. The two days of informal negotiations among the Member States failed to reach a consensus with regard to the future work and this resulted in sticking to the decision of the 20th session. The 20th session already decided that the WIPO Secretariat would prepare two studies under the agenda item on quality of patent for discussion at the 22nd session of the SCP. The Chair’s Summary of the 21st session states that: “The Committee decided the future work as follows: The following studies would be prepared by the Secretariat and submitted to SCP/22 as agreed at SCP 20 (a) a study on inventive step that contains the following elements: the definition of the person skilled in the art, methodologies employed for evaluating an inventive step and the level of the inventive step; (b) a study on sufficiency of disclosure that contains the following elements: the enabling disclosure requirement, support requirement and written description requirement”. According to the 20th session the studies are to “be based on the information provided by Member States, and will be a collection of factual information without analysis or recommendation”. However, it is clear that other issues discussed at the 21st session would remain on the agenda of the 22nd session of the SCP. The 21st session deliberated on the following issues: Exceptions and limitations to patent rights, quality of patents including opposition systems, patents and health, confidentiality of communication between client and patent advisors, and transfer of technology. In the past if there were disagreement on the future work the SCP, it would then be decided to hold the next session of the SCP based on the agenda of the last session. For instance, when the 18th session failed to reach a consensus the SCP decided as follows: “Failing agreement otherwise, following a proposal by the Chair, the Committee agreed to carry on discussions at its next session on the basis of the agenda of its eighteenth session, except agenda items 2 and 12 in document SCP/18/1”. However, this time there is no such decision. In this regard South Africa sought the clarification from the Secretariat on whether the next session is going to spend the whole five days on discussion of the abovementioned two studies. The Secretariat replied that the two studies and discussion on future work would consume all the time. In other words, the next SCP session will not discuss any other agenda item other than the two studies. At least three drafts were circulated at different stages of the informal negotiations. The first draft was circulated on the third day of the SCP i.e. 5 November, the second draft was circulated on 6 November, and the last draft text is dated 7 November. The last draft was rejected by developing countries citing the lack of balance in the text due to absence of any studies proposed by developing countries. The draft text dated 7 November states as follows: “ 1. The non-exhaustive list of issues will remain open for further elaboration and discussion at the next session of the SCP 2. Without prejudice to the mandate of the SCP, the Committee agreed that its work for the next session (SCP/22) be confined to fact-finding and not lead to harmonize at this stage, and would be carried out as follows: (1) Exceptions and Limitations to Patent Rights - Compilation of Member States’ experiences and case studies on the effectiveness of exceptions and limitations, in particular, in addressing development issues (2) Quality of Patents, including Opposition Systems - Seminar on quality of patents to address perspectives on what quality means, and to identify needs and requirements for developing capacity for patent search and examination - Seminar on work sharing and collaboration to share experiences - Studies on inventive step and sufficiency of disclosure as agreed at SCP/20 (3) Patents and Health - Seminar on the relationship between patent systems and availability of medicines, in particular, in developing countries and LDCs - Continue discussions on the disclosure of INN(International Non-Proprietary Names)(document SCP/21/9) (4) Confidentiality of communications between clients and their patent advisors - Compilation of information from Member States concerning applying confidentiality protection to non-lawyers and equal treatment to national and foreign patent advisors (5) Transfer of Technology - Compilation of information from Member States on national/regional regulations, guidelines, and practices and jurisprudence regarding voluntary licenses.” During the last plenary Paraguay on behalf of GRULAC (Group of Latin American and Caribbean countries) again proposed to amend the WIPO Model Law for Developing Countries on Inventions of 1979. Paraguay proposed this to achieve a balance because the draft text contained several activities including two studies under the quality of patents. Further, Paraguay also proposed an amendment to a proposal in the draft text on exceptions and limitations to patents. This proposal received support from Belarus, Pakistan on behalf of the Asia Pacific Group, Czech Republic, Kenya on behalf of the African Group and Brazil. However, the real breakdown was due to the adamant stand of Group B to not agree to have two studies under the work program on Patents and Health. The Africa Group asked for the two studies viz. the study on INN and the study on Markus claims (broad patent claims that may apply to a broad range of compounds). The deliberations failed due the position of Group B, with Japan on behalf of Group B stating that it is “take it or leave it” with regard to the draft text. In response to Group B’s comment on the draft text on future work as a package and there is a need to show flexibility, Kenya on behalf of the African Group responded that with all the disasters that are happening in Africa including Ebola, the patent system cannot help people in Africa to live a normal life. Kenya stressed that the Africa Group cannot show flexibility when people are dying. The Chair text took note of the proposal of GRULAC to amend the WIPO Model Law for Developing Countries on Inventions of 1979. The Summary states: “The Chair noted that the proposal by GRULAC could be presented and discussed at the next session”. Regarding the next session of the SCP the Chair’s summary states that “the Secretariat informed the SCP that the dates of its twenty second session to be held in Geneva, would be announced later”.+ (With inputs from Daniela Guaras.)
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