TWN Info Service on WTO and Trade Issues (Mar05/1)

14 March 2005

DEVELOPING COUNTRIES OBJECT TO WIPO CONSULTATION PROCESS ON PATENT TREATY TALKS

Below is a report on the controversy over a consultation meeting organised by the WIPO secretariat on in Casablanca on 16 February which discussed a work plan for WIPO's Standing Committee on Patents.

The subject of the Committee's work, especially on a new substantive patanet law treaty, had been mired in major differences between developed and developing countries.

14 developing countries have issued a statement criticising the process and outcome of the Casablanca meeting.

The report below gives the background of the controversy and summarises the statement of the 14 countries.

The report was first published in the South-North Development Monitor (SUNS) Bulletin of 11 March 2005 and is redproduced here with permission of the SUNS.

With best wishes
Martin Khor
TWN

__________________________

14 developing countries criticize WIPO patent treaty talks

By Martin Khor, Geneva 8 March 2005

A group of 14 developing countries calling itself the "Group of Friends of

Development" has issued a statement implicitly criticizing the process and outcome of an informal meeting organised in Casablanca last month by the secretariat (or international bureau) of the World Intellectual Property Organisation (WIPO) to discuss the future work of WIPO on patent harmonization.

The 14 developing countries reminded WIPO that its General Assembly last October had mandated the WIPO Director General to hold informal consultations only to fix the date of the meeting of the Standing Committee on Law of Patents (SCP).

The consultations should only focus on the date of the SCP meeting, and should not involve matters of substance relating to the controversial negotiations taking place in WIPO on a substantive patent law treaty (SPLT) or to establish a work programme, said the 14 countries.

The 14 countries comprising the "Group of Friends of Development" include Argentina, Brazil, Bolivia, Cuba, Dominican Republic, Ecuador, Egypt, Iran, Kenya, Peru, Sierra Leone, South Africa, Tanzania and Venezuela.

The 14 developing countries also stated that the next meeting of the SCP should continue negotiations of the SPLT on the basis of the draft treaty as a whole including all amendments tabled by member states.

They were referring to a suggestion by participants of the Casablanca meeting that the SCP should only focus on four issues (prior art, grace period, novelty and inventive
step), which are the topics being pushed by the developed countries (led by the US, Japan and the EU) in the SPLT negotiations.

The Group of Friends of Development said that to ensure a balanced treaty on the substantive harmonization of patent law, the concerns of all parties had to be taken into account, and thus the SPLT should include, inter alia, provisions on the transfer of technology, on anti-competitive practices, on the safeguarding of public interest flexibilities, as well as specific clauses on principles and objectives.

The Group's statement is a reflection of the unhappiness of many delegations of developing countries over the process by which the WIPO Director General Dr Kamil Idris had chosen to conduct consultations (which the countries felt did not include them or which marginalized them) and over the substance of the consultations, including the Casablanca meeting's conclusions.

The Group of Friends of Development are the countries that had presented a proposal
to establish a "development agenda" at WIPO at its General Assembly last September/October.

Resulting from discussions on the proposal, the General Assembly mandated that WIPO convene inter-governmental inter-sessional meetings (IIM) to discuss the "development agenda" proposals, and to co-organise an international seminar on intellectual property rights and development.  The first meeting will be held on 11-13 April, and the seminar is scheduled for 2-3 May.

As part of the General Assembly meetings, the SCP met and had heated discussions on how to proceed with its work, particularly on negotiations for a SPLT.  The developed countries have been pushing that the SPLT only cover harmonization of patent laws in relation to four issues - definition of prior art, grace period, criteria for novelty and inventive step.

Many developing countries on the other hand do not consider the proposed upward harmonization of patent laws in these four areas as being suitable for their development needs.  They have proposed that several development-related issues be
included in the SPLT and its negotiations, including disclosure of sources of origin of genetic resources and associated traditional knowledge, exceptions and limitations to patents for public interest purposes and to deal with anti-competitive practices, and provision for technology transfer.

At the September/October 2004 General Assembly meeting, the US and Japan proposed that the SCP take on a limited agenda of an "initial package of priority items" (i.e. their four items of prior art, grace period, novelty and inventive step) with a view to concluding a more limited SPLT as soon as possible.

A draft decision put forward by the Assembly President said that the SCP should focus on the four items and conclude a treaty on them, whilst discussions on the other items could be concluded later.  But this two-stage approach was opposed by many developing countries, which saw it as a way of establishing a treaty that only benefited the developed countries (by harmonizing patent laws upwards, at the expense of developing countries) whilst ignoring the developing countries' interests, resulting in an imbalanced and development-damaging treaty.

As a result of the stand-off, the General Assembly adopted a decision that no consensus had been reached on the US-Japan proposal and that the dates of the next
SCP "should be determined by the Director General following informal consultations that he may undertake."

The Director General Dr Kamil Idris convened a meeting in Casablanca on 16 February, which a WIPO statement described as "informal consultations on the future work of WIPO's Standing Committee on Patents which is working to build consensus on a treaty that seeks to harmonize patent laws around the world".  It added that "following a decision by WIPO member states in autumn 2004, the Director General of WIPO convened informal consultations concerning future sessions of the Standing Committee on Patents."

WIPO also released a statement adopted by the Casablanca meeting participants (which it said included delegates from Brazil, Chile, China, France, Germany, India, Italy, Japan, Malaysia, Mexico, Morocco, Russian Federation, Switzerland, UK, USA, EU and African, European and Eurasian regional patent organizations).

According to the Casablanca statement, the meeting agreed that the following six issues should be addressed in an accelerated manner within WIPO to develop codification of international intellectual property law: prior art, grace period, novelty, inventive step, sufficiency of disclosure and genetic resources.

The first four issues (prior art, grace period, novelty and inventive step) would be dealt with in the SCP and the other two issues (sufficiency of disclosure and genetic resources) in the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC).

The meeting also recommended that the WIPO Director General convene the next session of the SCP in May 2005  and the next session of the IGC in June 2005, and for both meetings to consider and endorse the objectives and work program set out at Casablanca.

The statement added that the delegate of Brazil did not associate himself with the foregoing text.  Since then, the SUNS has also learnt that at least one other country does not consider that the presence of its official constitutes endorsement of the statement.

Several developing country diplomats in Geneva were reported to have been upset by
the process by which the "informal consultations" were held in Casablanca as well as by some of the conclusions of the statement (see article in SUNS #5749 of 28 February 2005).

The developing country officials charged privately that WIPO had overstepped its mandate for the consultations by working on substantive issues and that the meeting was arranged out of Geneva and in a way that sidelined those countries that are opposed to the US-Japan-Europe harmonization proposals and that had rejected the developed countries' efforts to delink development-oriented issues (genetic resources, disclosure, exceptions and limitations to patents, etc) from the SPLT.

The delegates were also opposed to the issues of disclosure and genetic resources
being taken off the SCP agenda (which implies that they would not be included in the
SPLT) and shunted off to the IGC (which does not have a mandate for a treaty) for
discussion.

The reports of several developing countries being opposed to the Casablanca process and outcome appear to be confirmed by the statement of the Group of Friends of Development.

Referring to the statement arising from the Casablanca meeting, the Group made
several points.

It recalled that an inclusive, transparent and open-ended modus operandi is a core
element behind the idea of making WIPO and the intellectual property system more
responsive to the needs and interests of developing and least developed countries.
This is part of the broader concept contained in the call for an effective and substantive "Development Agenda" for WIPO.

The Group underlined the mandate of the General Assembly to the effect that "the
date of the next Standing Committee on Law of Patents (SCP) should be determined
by the Director General following informal consultations that he may undertake".

The Group stated:  "Accordingly, such consultations must be focused on establishing
a date for convening the SCP. They cannot involve, modify or affect decisions
adopted by the General Assembly, more so on matters of substance as those related
to the controversial SPLT negotiations, or establish a work programme."

The Group also reaffirmed that:

* Should an SCP meeting be convened for the month of May, it should consider and
endorse the continuation of the negotiations of the SPLT on the basis of the draft
treaty as a whole, including all the amendments that had been tabled by Member
States to ensure a balanced treaty on the substantive harmonization of patent law that
will address the concerns of all parties to the negotiations. To that end, the SPLT
should include, inter alia, provisions on the transfer of technology, on anti-competitive practices, on the safeguarding of public interest flexibilities, as well
as specific clauses on principles and objectives.

* The Member States of the SCP have the prerogative to decide on the convenience
and opportunity of transmitting to the General Assembly any proposals presented to
the SCP on issues under the competence of that Standing Committee.

The Group also stressed that the General Assembly adopted a specific Decision in
relation to the Proposal for the Establishment of a Development Agenda for WIPO.

"This is an issue of the utmost importance to countries who co-sponsored the proposal and it shall be further examined and elaborated upon in April 2005, at the first formal inter-sessional inter-governmental meeting, at which the entirety of the Organization's membership will be represented. The Decision states that the inter-sessional inter-governmental meetings will prepare a report for consideration of the next General Assembly."

The Group also reaffirmed the importance it attaches to multilateralism and its
commitment to strengthening it also within the sphere of WIPO through constructive
and concrete proposals for a work program of the Organization that serves the interest of all members, particularly those of developing and least developed countries. In this context, it is also committed to work towards consensus building on all issues under consideration.

The Group requests the WIPO International Bureau formally to circulate its present
Statement to all Member States of WIPO as soon as possible.