3 on WIPO Patent Committee Meeting

-------- Original Message --------
Subject: [A2k] Fw: N-S divide at WIPO Patents Committee (Rpt 1)
Date: Fri, 24 Jun 2005 16:41:21 +0800
From: "Martin Khor" <[email protected]>
To: <Undisclosed-Recipient:;@lists.essential.org>

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TWN Info Service on WTO and Trade Issues (Jun05/7)
25 June 2005
Third World Network
www.twnside.org.sg


WIPO members split on future work on patent law treaty

A meeting of the World Intellectual Property Organisation's
standing committee on patents (SCP) was held on 1-2 June 2005. 
At the meeting, WIPO member states were unable to agree on how
the future work of the committee should proceed.

The SCP in recent years has been negotiating a possible new
treaty, the substantive patent law treaty (SPLT).   There is a
division of views, mainly on North/South lines, on what such a
treaty should contain. These major differences surfaced again
during this meeting.

Below is the first of 3 reports on the WIPO's SCP meeting.

With best wishes
Martin Khor
TWN

-------------------------------------------------



WIPO members split on future work on patent law treaty

By Martin Khor (TWN), Geneva, 1 June 2005

Member states at a meeting at the World Intellectual Property
Organisation (WIPO) were unable to agree on how to proceed with
the future work programme of its patents committee, which is
negotiating an international treaty on patents.

The negotiations at the WIPO's Standing Committee on the Law of
Patents (SCP) for a substantive patent law treaty (SPLT) have
been bogged down in recent months by disagreement on how to
proceed, particularly on the scope of (or issues to be covered
by) the treaty and the procedures and schedules to be followed.

The disagreements surfaced again on 1 June morning when the SCP
began a two-day meeting.

At the start of discussions on the "work programme for the SCP"
(which is the main agenda item), two papers with opposing views
were presented.

A paper by the WIPO Secretariat invited the meeting to "consider
and adopt" the recommendations and work programme for the SCP
contained in a statement arising from "informal consultations"
held in Casablanca on 16 February, organized by the WIPO
Director-General with some countries.

The Casablanca statement proposed that only four issues (prior
art, grace period, novelty and inventive step) be taken up by the
SCP (and by implication in the SPLT). These are issues advocated
by developed countries.

The Casablanca statement also proposed that two other issues
(sufficiency of disclosure and genetic resources), which the
developing countries have been advocating for within the SCP (and
in the SPLT) be taken up instead in the Intergovernmental
Committee on Intellectual Property and Genetic Resources,
Traditional Knowledge and Folklore (IGC).

Unlike the SCP, the IGC is not a norm-setting or treaty-making
body (at least at this stage), and thus has a lower standing in
that sense.

The implication of the Casablanca statement's proposed work
programme is that only the four issues, which are being advocated
by the developed countries, will be on the SCP agenda and within
the scope of the SPLT, while other issues (including the two
mentioned) would not be dealt with, or be dealt with at the IGC,
which is not a treaty-making body.

A second paper by 14 developing countries known as the "Group of
the Friends of Development" is opposed to this approach of
separating the topics.  The Group comprises Argentina, Brazil,
Bolivia, Cuba, Dominican Republic, Ecuador, Egypt, Iran, Kenya,
Peru, Sierra Leone, South Africa, Tanzania and Venezuela.

Responding to the Casablanca statement, the Group's paper
indirectly criticized the Director-General for arranging the
Casablanca meeting in a way that went beyond the mandate given to
him by the WIPO General Assembly, which was only to organize
consultations to fix the date of the next SCP meeting.

"The consultations must be focused on establishing a date for
convening the SCP," said the Group's paper. "They cannot involve,
modify or affect decisions adopted by the General Assembly (of
WIPO), more so on matters of substance as those related to the
controversial SPLT negotiations, or establish a work programme."

In contrast to the Casablanca proposal for the SCP to deal only
with four issues, the Group's paper (in para 5) reaffirmed that
the SCP "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 of
the technology transfer, on anti-competitive practices, on the
safeguarding of public interest flexibilities, as well as
specific clauses on principles and objectives."

The para added that 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 Committee's competence.

The Group put forward para 5 of its paper as its recommendation
for the future work programme for the SCP, as an alternative to
the Casablanca proposal.

At the start of the discussion, the WIPO Secretariat explained
that the WIPO General Assembly (at its meeting last October)
could not reach consensus on proposals relating to the SCP and
asked the Director-General to undertake consultations on dates
for the next meeting. The DG held consultations in Casablanca,
which recommended on how the work programme might be handled in
future.  The DG had adopted the recommendations as his own and
was now transmitting it to the SCP, added the Secretariat.

Argentina, introducing the Group's paper, said that most of the
Group's members had not been invited to the Casablanca meeting,
so they decided to undertake their own consultations in Geneva. 
They were concerned about the turn of discussions lately
especially in relation to the SPLT.

Argentina stressed that patent law is a very sensitive issue with
cross-cutting implications for public policy.  More stringent
intellectual property standards may have serious implications on
health, the environment and nutrition.  These implications were
brought to public attention through the WTO Doha Declaration on
TRIPS and Public Health, which stressed that patents should not
be in the way of public health goals.

Argentina said the developing countries had called for a WIPO
development agenda, under which all WIPO subsidiary bodies must
take into account development principles, and that norm setting
in WIPO must respect and not run counter to the policy space of
developing countries.

Norm setting should also safeguard the flexibilities in existing
treaties. Regarding patents, flexibilities for determining
policies at the pre- and post-grant levels must be safeguarded.

Argentina said that since 2000 views in the discussions on the
SPLT had been divided. Some countries said there should be a new
treaty to harmonise patent standards upwards, which would add new
obligations on top of TRIPS.  This embodied the view that norm
setting in WIPO should bring IP standards upwards, irrespective
of the countries' levels of development.  The implications of
this for development are serious.

Argentina added that the composition of invitees to the
Casablanca meeting was not balanced, many countries were not
there, organizations that are not part of WIPO were included
(though many members were not), and individuals were invited in
their personal capacity.

It also recalled that at the SCP meetings on SPLT, the developing
countries have put forward proposals to safeguard their policy
space, and wanted a balanced approach where all views are
considered.  However, the Casablanca-proposed work programme
reflected the same proposal put forward by two states (referring
to the US and Japan) at the WIPO General Assembly (last October)
that were rejected, and these had also been rejected at the SCP
meeting in May 2004.  Argentina said it was surprising that the
same proposal was put up again for a third time.

Opposing the proposal, Argentina said that it would fragment the
SCP issues along two tracks, with one track taking up the four
issues (prior art, grace period, novelty and inventive step)
while leaving behind the issues (that developing countries had
put forward) such as public interest flexibilities, technology
transfer, competition and disclosure, and genetic resources.

Argentina remarked that developing countries were not demandeurs
in the SPLT negotiations but had showed flexibility in tabling
proposals.  The Casablanca proposal would on the other hand lead
to the loss of policy space for national policies.  This did not
involve a procedural issue only, as the issues singled out in
Casablanca involved core aspects of the patent regime relating to
patentability.

It was clear, said Argentina, that the negotiations could not
leave aside the issues fundamental to the developing countries'
interests.  The Casablanca proposal however would not allow
countries to put forward the proposals they want and this is
against the principles of multilateralism. The negotiations
should take into account the concerns of all.

Therefore, said Argentina, the Group cannot accept the Casablanca
document as the basis for discussing future work.  Negotiations
should continue on a draft treaty as a whole, and the SCP should
address all issues on an equal footing.   A new treaty that does
not take into account potential impacts and national sovereignty,
and that does not contain provisions for flexibilities for the
public interest would run counter to the WIPO development agenda.

This is thus a practical test for WIPO's commitment to
development and the Development Agenda.  Argentina urged all
members to show that WIPO can deal with intellectual property in
the context of development.

Italy (representing Group B of developed countries) said in a
brief statement that harmonization of patents would benefit all
stakeholders including civil society and rights holders.  It
supported the  Casablanca document which it said represents a
balanced work plan.

Singapore (on behalf of ASEAN countries) said the four issues
mentioned in the Casablanca statement are important and that it
was equally important that progress on work on disclosure in the
IGC is made.  There should be close interface of the work in the
SCP and IGC.  An efficient international patent system is
important but it must be sensitive to development needs and
provide safeguards and flexibilities.  It stressed the importance
of multilateralism in shaping the SCP work programme.

Egypt said it had maintained a clear position since the SPLT
negotiations started that the work should be conducted in a
balanced and inclusive manner.  Egypt and the African Group have
not welcomed an exclusive unbalanced approach in the SPLT
negotiations when such an approach was raised previously at the
SCP and the General Assembly.

Egypt said the Casablanca statement had repeated the same
approach by proposing a future work programme set up on a
discriminatory basis, through focusing on developed countries'
issues while issues tabled by developing countries are put on a
different track. Thus, the Casablanca work programme failed to
address the legitimate concerns of a large number of countries
and cannot constitute the basis for discussion on future work.

Egypt added that the SPLT negotiations should not be an exception
to balanced, fair and transparent multilateral negotiations under
the UN system.  If the proponents of these negotiations have a
genuine desire to take it forward, they should be keen on taking
on board the developing countries' concerns equally, including
their issues such as sufficiency of disclosure, genetic
resources, and technology transfer.

Egypt called for a balanced outcome of all IP norm setting
activities which effectively integrates the development dimension
and "aspirations of our societies and enables the IP system to be
responsive to public policy concerns."

Luxemburg (on behalf of the EU) supported the Group B statement
in support of the Casablanca work programme.

Brazil, associating itself with Argentina and the Group of
Friends of Development, said patent law harmonization has serious
implications in many areas of public policy and thus could not be
approached as a technical exercise.  "We are all concerned with
the potential substantive implications of the new treaty, and we
don't see how we can disassociate the substantial outcome from
the set-up of the environment where negotiations take place."

Brazil stressed that the substance and procedure intersect and
that transparency and inclusiveness in the process will determine
the degree of inclusiveness of the final package. Thus,
negotiations should be held in a transparent, open member-driven
manner, with all countries welcomed to participate.

It was thus concerned about the Casablanca outcome, just as many
other countries had clarified that they could not agree to the
work plan in the Casablanca statement.

On substance, Brazil stressed that the patent law provisions
suggested in Casablanca focused on four aspects but did not
include safeguards for public interest and this will compromise
the policy space and flexibilities that were in TRIPS.  "Our
policy space has already been considerably narrowed by the legacy
of the Uruguay Round," said Brazil, urging that members find a
balanced work plan agreeable to developing countries.

Switzerland said that harmonization is key and should be pursued
at WIPO to increase the quality of patents and avoid work
duplication among patent offices.  Full harmonization of patent
laws is a broad task and since no progress had been made so far,
"we need a new working method."  It supported the Casablanca
document as pragmatic and balanced.  It was pragmatic as it asked
the SCP to focus on four issues while the IGC would look at two
other issues, and this would help achieve results in a short
time.

The discussions were expected to continue Wednesday afternoon.
+

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-------- Original Message --------
Subject: [A2k] WIPO patents meeting (Rpt 2)
Date: Fri, 24 Jun 2005 16:41:52 +0800
From: "Martin Khor" <[email protected]>
To: <Undisclosed-Recipient:;@lists.essential.org>

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TWN Info Service on WTO and Trade Issues (Jun05/8)
Third World Network
25 June 2005
www.twnside.org.sg



Divisions continue at WIPO patents committee meeting

Below is the second report on the meeting of the WIPO Standing
Committee on Patents, held on 1-2 June 2005.

with best wishes
Martin Khor
TWN

-------------------------



Divisions continue at WIPO patents committee meeting
By Sangeeta Shashikant, Third World Network, 2 June 2005


Divisions, mainly along North-South lines, continued to be shown
on 1 June afternoon at the World Intellectual Property
Organisation (WIPO), as members discussed how to proceed with
work on a proposed new treaty involving the harmonization of
patent laws.

The meeting of the WIPO Standing Committee on the Law of Patents
(SCP) had started on Wednesday morning with the presentation of
two opposing papers. The first paper, by the Secretariat,
proposed the adoption of recommendations from a February
"informal consultation" organized by WIPO's Director-General, Dr.
Kamil Idris, in Casablanca, that called for the SCP to deal only
with four issues in negotiations for a new substantive patent law
treaty (SPLT).

The four issues, strongly advocated by developed countries, are
prior art, grace period, novelty and inventive step.  The
Casablanca meeting and the Secretariat proposals before the SCP
have sidelined other issues proposed by developing countries. Two
of these - disclosure and genetic resources - are  proposed to be
dealt with by another committee, the Intergovernmental Committee
(IGC) dealing with genetic resources and traditional knowledge.
This IGC does not have treaty-making powers, unlike the SCP.

The second paper, presented by Argentina on behalf of the Group
of Friends of Development (comprising 14 developing countries)
rejected the Casablanca approach, which it criticised for
fragmenting the issues. Instead, the second paper  proposed that
all the issues brought up in the SPLT negotiations be dealt with
as a whole in order to achieve balance.

These issues would include the topics advocated by developing
countries, such as public interest flexibilities, national policy
space, technology transfer, pro-competition principles, as well
as disclosure and genetic resources.  The Group had also
criticised the Casablanca process for not including most members.
The Group's paper said the WIPO Director-General had gone beyond
the mandate given to him, namely to consult only on the dates of
the next SCP meeting.

In the discussions on Wednesday morning,  strong differences of
view emerged as members showed their preference for one or the
other proposal, mainly along North-South lines.

In the afternoon discussion, these divisions continued to be
voiced.  One significant proposal was that a study be carried out
on the impact of the SPLT draft on the development efforts of
developing countries, before proceeding further with the SPLT
negotiations.  This was initially put forward by Pakistan and
supported by several other developing countries.

South Africa said it aligned itself with the Friends of
Development Group statement. It underscored that the DG had been
mandated only to consult on fixing the date of the next SCP
meeting and thus his consultation should not have been on
substantive issues. South Africa said that it did not agree with
the work programme proposed in Casablanca.  Instead, the SPLT
negotiations should include all proposed amendments to ensure
balance.

The SPLT should focus on safeguarding public interest
flexibilities and not run counter to what it is in TRIPS, South
Africa added. During the SPLT negotiations, important proposals
were made on patents - on general exceptions, genetic resources,
disclosure and public health.  The SPLT negotiations should be
based on mutual respect for all priorities so that the outcome
will enjoy legitimacy.

South Africa stressed that harmonized standards would  close the
policy space enjoyed by developing countries.  If they have to
raise IPR standards to the level of developed countries'
standards, they will lose their flexibilities under TRIPS.  South
Africa could not afford to lose the opportunity to make use of
these flexibilities.

It also stressed that the Casablanca statement contains proposals
made during the General Assembly, which had been rejected. If
adopted, it would fragment the negotiations onto different 
tracks and leave aside matters of interest to developing
countries. Negotiations should proceed on the basis of a single
undertaking and not in a fragmented manner, South Africa
insisted.

Morocco said it had the honour to host the Casablanca meeting and
ensured its constructive approach. It reaffirmed the importance
of a multilateral framework and also reaffirmed interest in
harmonizing, that would result in a less costly patent system,
reduction of work load and improving quality of patents, thus
promoting development. It also pointed to the importance of
having a development aspect of Intellectual Property. Sudan
supported the Morocco statement.

India associated itself with the Group of Friends of Development
statement. It said patent law has cross cutting implications
including on the environment and public health, thus it is
important for developing countries to understand the full
implications of the SPLT.

India said that the Director-General had been asked to undertake
informal consultation on the dates for the next SCP meeting, and
India had expected an inclusive and transparent process. The
mandate to the DG did not include the substantive parts and
timeframe. The participation at the informal meeting (at
Casablanca) was limited and the vast majority of countries were
not invited. The consultations should be inclusive, transparent
and open ended, India added.

In so far as the outcome of Casablanca is concerned, the
decoupling of issues and selecting some issues for fast tracking
is not acceptable, it said.

Pakistan said the challenge is to agree on IP norms in response
to a fast changing global environment while ensuring that these
norms fully take into account the developmental needs of the
membership.  The slow progress on the draft SPLT led to a
proposal by some for an "early harvest" approach by restricting
the elements to be negotiated in a first phase, to four and
possibly two additional issues.

Pakistan said this proposal has been accompanied by broad and
unfortunate hints that if there is no quick movement on these
issues, then some delegations will pursue these issues outside
WIPO. This has been countered by the position that negotiations
should continue on the whole range of issues that are on the
table in order to ensure that the concerns of all Member States
are addressed and that there is a balanced outcome.

Pakistan added that there is a growing feeling of unease with the
possible developmental implications of the many complex
provisions of the draft SPLT and hence an increasing reluctance
to quicken the process by picking and choosing elements for an
"early harvest".

There is further a sentiment that if some countries wish to
proceed with this exercise elsewhere outside WIPO, then they are
welcome to do so.

Pakistan proposed four measures to break the deadlock. First, is
a need to bring back complete transparency and openness. There
could not be progress on the basis of the pronouncements of
restricted conclaves such as the Casablanca meeting. A few
countries cannot be given the right to give directions to the
entire membership on this matter, let alone one of such
importance. Hence, the starting point of the SCP should be where
it left off at the 10th session and its future work must not be
compromised by ill-advised initiatives such as the Casablanca
event.

Second is the need to reaffirm the basic objectives. These
include not only the "efficiency" goals such as reducing the
workload of patent offices and improving the quality of patents
but also the critically important goals of enhancing "equity" and
"balance". This would necessitate addressing issues such as
proper disclosure requirements, curbs on anti-competitive
practices and provisions that would facilitate the diffusion of
technology and innovation.

Third are measures to clarify the complex issues. Pakistan
suggested that the WIPO bureau on its own or with UNCTAD produce
a comprehensive paper on the implications of the draft SPLT on
public policy issues such as national capacities to innovate,
access to technology, protection of national IP assets, and so
on. The terms of reference should ensure that the varying
implications for Member States at differing levels of development
are fully addressed. This exercise would allay apprehensions and
identify areas in the draft SPLT where caution may be advisable
or where additional provisions may be proposed in order to meet
the larger objectives of the exercise.

Fourth, on the basis of discussion on the above paper, a more
informed decision may be taken on the specific negotiating
approach to be pursued. Pakistan viewed the comprehensive
approach of negotiating on all current elements of the draft SPLT
as the  preferable approach. The more limited early-harvest
approach could only be considered if the limited package contains
a balanced set of elements which address the concerns of all
groups of countries and are not arbitrarily selected.

Pakistan concluded that its proposal should not be seen as
further slowing the process. Its approach would enhance clarity
on the many complex and increasingly contentious issues and
facilitate consensus building in an area where WIPO needs to
"make haste but slowly".

The US, supporting Group B's earlier statement, said the
importance of meaningful patent law harmonization highlighted the
urgent need for a sensible workplan.  The proposal to limit the
SCP's scope of work provided the best opportunity for meaningful
results. Agreement on the four issues would promote higher patent
quality and reduce duplication. Harmonization will benefit Small
and Medium Enterprises (SMEs), and in particular harmonized prior
art would improve patent quality, the US claimed.

It believed that continuing with the previous model (as suggested
in the Group of Friends of Development proposal) of discussing
the entire draft treaty was unmanageable and  unworkable and as
such the US supported the Casablanca and Secretariat proposal.

Chile reiterated its position that the best and only way to
proceed on the SPLT negotiations was to include all the important
aspects of patents. It disagreed with the Secretariat proposal to
take up four issues, as the interest of all members should be
taken into account.

The Philippines associated itself with Argentina, Morocco and
India and agreed with the need for a balanced approach. It
proposed that the impact of the SPLT obligations must be fully
analysed and considered. An accelerated procedure would miss the
important aspect of implications on social and economic
development.

Ecuador said that patent law, if not correctly agreed on, would
affect health, education, biological and genetic resources,
access to knowledge and increase the gap with countries unable to
invest in technology.  It mentioned the effects on health, as
well as agriculture and education, which could affect the
survival of a country.  This view does not disregard IP rights,
but "we would be in a difficult position if there was an increase
in obligations but a decrease in flexibilities."

Ecuador was concerned that it was not invited for the
consultations and it was surprised that the  consultations
included people and organizations  which can in no way represent
the views of member states. Such procedures should  be rectified,
Ecuador said, and supported the Group of Friends of Development
proposal.

Iran also associated itself with the Group of Friends of
Development statement. It said that procedurally the
consultations contradicted the mandate given to it.  It proposed
an inclusive and transparent process that involved the interests
of all member states.

Algeria said the Swiss proposal seemed fairly constructive.  It
supported an instrument to harmonize patent law. "We support the
principle of multilateral forum that is transparent and fair." It
was rather surprised by the Casablanca process which did not seem
to make  progress and thus it supported the Group of Friends of
Development statement.

The UK said it agreed with Argentina that "we need to get the
global IP system right". They have not made progress, and the
reason for this was that too many different issues were being
attacked.  Casablanca had suggested 6 issues to be discussed, two
at the IGC and 4 at the SCP.  The UK believed the issues which
are equally important should be dealt with in parallel.
Separating them will help to focus attention.

Australia said the proposed new work programme included two more
issues (sufficiency of disclosure, genetic resources) that met
the key needs of civil society. It stressed the fundamental role
to create international patent law. It agreed with the Casablanca
document but said changes may have to be made. Japan also
supported the Casablanca statement.

Argentina, responding to the Chair's 'positive' comment on the
earlier Swiss proposal (to work on a reduced package of  priority
issues), said the great majority of countries that spoke had
expressed themselves as in favour of the Group of Friends of
Development proposal. On the question of a possible package of
negotiations, this would  involve a mathematical question, and it
did not think this method would resolve the concerns of
developing counties.  In fact, "we don't see any way out of this
if we go round in circles," it said. There are other proposals on
the table, it added.

Colombia said it hoped the consultative process in the future
shall be open and inclusive. It supported  the need to include
standards of anti-competitive measures and principles and
objectives.

Bolivia said the WIPO rules of procedure should be adhered to.
The results should include views of all member states and not
just of some of them.  It could not accept the Secretariat
proposal, as Bolivia has doubts about the basis and the
procedures. It was concerned about references being made to
processes being taken in the SCP and the IGC as the mandate of
IGC may not be renewed.

Canada, supporting the Group B statement, said discussions should
concentrate on the outcome and not so much the process. It urged
the SCP to achieve tangible results and to avoid further
deadlock.  It supported the Secretariat paper to advance the
work.

Peru, associating itself with the Argentina statement, said the
SCP could not adopt the Casablanca proposal as it called for two
issues to be discussed at the IGC, but the IGC's mandate would
end at its next meeting and it is unclear what its future would
be. It is clear that the issue of genetic resources is connected
to patents and so it should remain in the SCP.  For Peru, all the
issues are important and one delegation could not tell others
that only some issues it liked has priority.

India, addressing the issue raised by others on impact
assessment, said it had also previously spoken about WIPO making
such an impact assessment. Such an impact assessment rightly fits
when the discussion is about the Development Agenda. However, an
impact assessment should not be discussed in a way to make the
Casablanca package palatable. India thus wanted to clarify that
the impact assessment is not an issue to make the Casablanca
statement more acceptable.

Pakistan responded that its proposal for impact assessment was in
terms of preparing a paper on the implications of the draft SPLT
especially on public policy issues, and the terms of reference of
the paper should be carefully elaborated.  The utility of this
exercise would be that it would be like taking "time out" to have
a more complete picture with regards to how the SPLT would impact
the countries, and "it will help us to make a decision whether
the issues can be fragmented".

India said it was a basic demand that "we should make an impact
assessment of IP before proceeding down the path of harmonization
of laws".

Switzerland, clarifying its earlier statement, said that since
November 2000 the SCP has held six sessions to discuss the scope
and content of the SPLT and this had led to useful results.
Recent discussions in SCP suggest that the current model for
discussion would not lead to progress. One shortcoming is the
sheer volume and complexity of issues. Moreover, several
provisions in the draft treaty have been controversial and of
high political sensitivity especially for developing countries
and these divisive issues have been the focus of much debate and
hampered progress.

It said an expansive SPLT including all issues currently in the
draft SPLT may not be achievable in the near future. To avoid
overload, "we should go for a reduced package". It does not mean
dropping some issues. Thus, it was proposing a "feasible package"
approach, with the socalled reduced package containing 4 priority
issues to be dealt with by the SCP and two other issues should be
dealt as a priority in the IGC.

Thus, both packages are reduced packages and this reduction
should have no negative impact. The goal would be that the SCP
and the IGC make recommendations to the General Assembly when
they finish their discussions, and nobody would lose anything.
The decision would have to be made at the General Assembly,
whether they would like to go for a diplomatic conference or
decide that there should not be a diplomatic conference.

The US, addressing the question of impact assessment, said it had
misgivings of such an approach.  It was troubled that an impact
assessment would mean convening a body which would be a subset of
this body.

Statements were also made by many NGOs, from both business groups
(including those representing IP associations and the
biotechnology industry) and consumer and development groups
(including Medicins sans Frontieres, Consumer Project on
Technology and Civil Society Coalition.)

Summing up the first day's discussion, the Chairman (from Russia)
said he would distribute a draft Chair's Summary the next day for
discussion.
+

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-------- Original Message --------
Subject: [A2k] Conclusion of WIPO patent meeting (Rpt3)
Date: Fri, 24 Jun 2005 16:42:42 +0800
From: "Martin Khor" <[email protected]>
To: <Undisclosed-Recipient:;@lists.essential.org>

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TWN Info on WTO and Trade Issues (Jun05/9)
25 June 2005
Third World Network
www.twnside.org.sg



No agreement on future work of WIPO Patents Committee

Below is our third and final report on the meeting of WIPO's
standing committee on patents (2-3 June 2005).

Intense negotiations took place on a 3-page Chair's Summary of
the meeting.

At the conclusion of the meeting, there was no substantive
agreement on how the committee's work should proceed.

With best wishes
Martin Khor
TWN

--------------------------------



No agreement on future work of WIPO Patents Committee

By Sangeeta Shashikant (Third World Network), 4 June 2005

The Standing Committee on the Law of Patents (SCP) at the World
Intellectual Property Organization (WIPO) ended its meeting on 3
June 2005 without any agreement among Member States on how the
future work programme of the committee should proceed.

The WIPO Secretariat had proposed the adoption of recommendations
from a February "informal consultation" organized by WIPO's
Director-General, Dr. Kamil Idris, in Casablanca. This
consultation meeting had called for the SCP to deal only with
four issues in negotiations for a new substantive patent law
treaty (SPLT).

The developed countries strongly supported the Casablanca
statement to limit discussions in the SCP to issues of prior art,
grace period, novelty and inventive step.

Issues proposed by developing countries particularly on
disclosure and genetic resources had been sidelined by the
Casablanca statement, which had proposed that they be dealt with
by the Intergovernmental Committee (IGC) dealing with genetic
resources and traditional knowledge.

This division along North-South lines persisted throughout the
weeklong meeting.

On 2 June, intense negotiations took place on the 3-page summary
prepared by the Chair, before all the delegations agreed to it
during an extended session on the morning of 3 June.

It had been agreed by delegations that since there was no
agreement on how to proceed with the future work of the SCP, the
summary should be factual, reflecting the different positions
adopted during the meeting.

Numerous developing country delegations were not agreeable to the
structure of the first draft summary of the Chair, as it appeared
that the views of countries mostly from the industrialized world
that supported the Casablanca statement were presented in detail
while the views of developing countries that opposed the
Casablanca statement were stated in a limited manner which seemed
to indicate that their position did not receive much support.

Argentina in particular pointed out that their concerns relate to
the 'equilibrium' between the paragraphs which reflect the views
of developed countries and the paragraphs which reflect the views
of developing countries.

The negotiations over the Chair's summary focused on the precise
wording and phraseology that should be used to reflect in a
factual and balanced manner the discussions that took place.

The text of the Summary of the Chair that was finally agreed upon
explicitly states that discussions on the future work program for
the SCP were held based on the Casablanca statement (document
SCP/11/3) and the statement made by Argentina on behalf of the
Group of Friends of Development (comprising 14 developing
countries) rejecting the Casablanca approach, which it criticized
for fragmenting the issues (document SCP/11/4).

The summary also states that the "Delegation of Argentina,
speaking on behalf of the 'Friends of Development' introduced
document SCP/11/4. The delegation called for a balanced and
inclusive approach to discussion on the Substantive Patent Law
Treaty (SPLT). In this regard, it stressed the importance that
issues of interest to all parties to the discussion should be
dealt with on an equal footing. All delegations should be allowed
to make proposals on any matters of interest to them. The
delegation recalled, in particular, that a balanced and inclusive
SPLT should include, inter alia, clauses on public interest
flexibilities, transfer of technology, curbing of
anti-competitive practices and bio-diversity (disclosure of
origin). Many delegations expressed reservations with respect to
the procedure and outcome of the informal consultations held in
Casablanca. Several developing country delegations, including the
delegations of Chile, Colombia and India, opposed the approach of
the Casablanca consultations and supported the views set out in
document SCP/11/4."

The text then refers to the position of Group B countries
expressed by the Delegation of Italy that "it firmly believed
that harmonization would benefit all stakeholders, including
civil society, right holders and intellectual property offices."

On the recommendations in the Casablanca statement, the
Delegation stated in the Summary that it "thought that it
represented an effective way of structuring and progressing the
work of this Committee and of the Intergovernmental Committee on
Intellectual Property and Genetic Resources, Traditional
Knowledge and Folklore (IGC).

"Group B believed that that proposal represented a balanced work
plan which addressed the interests of all Member States. It
further stated that Group B looked forward to advancing this work
program both in this Committee and in the other relevant bodies
of this Organization."

The summary also reflects the position of the Delegations of
Luxembourg speaking on behalf of the European Community and its
Member States, Morocco, the Republic of Korea and Sudan which
'supported the views expressed by the Delegation of Italy'.

The views of the delegations of Sudan and Singapore (on behalf of
the Association of South East Asian Nations, ASEAN) countries are
also noted in the Summary.

The paragraphs read as follows: "The Delegation of Sudan
emphasized that the building of consensus should be observed. The
Delegation of Singapore, speaking on behalf of the ASEAN states
that the close interface between the SCP and the IGC in
addressing both the definition of prior art, grace period,
novelty and inventive step, and the sufficiency of disclosure and
genetic resources in a timely and accelerated manner remain a key
to the efforts of the SCP, and that it supported the creation of
a balanced and equitable international patent system that struck
a balance between the interests of users and right holders and
those of consumers and society at large saying that the building
of consensus should be observed."

The Delegation of China put on record in the summary "that the
issue relating to the disclosure of the origin of genetic
resources in patent applications should be addressed in the SCP."

Following these general statements and noting the wide
divergences in opinion on the future work program of the SCP,
"several proposals were made with a view to bridge the existing
divergences."

"The Swiss delegation suggested an approach under which six
issues (prior art, grace period, novelty, inventive step,
sufficiency of disclosure and genetic resources) would be
considered in parallel in the SCP (prior art, grace period,
novelty and inventive step) and in the IGC (sufficiency of
disclosure and genetic resources) and would, if and when
agreement was reached on them, be submitted together to a
Diplomatic conference.

"Several delegations underlined the usefulness of that proposal
while several other delegations opposed it.

"The Delegation of Brazil stressed that, in its view, the
comprehensive proposal from the 'Friends of Development' took on
board the positions of all countries, while being open to
discussing a work plan that would seek to organize all issues of
the draft SPLT as a whole into a manageable and effective
program.

"The US stated that, in its view, the previous entire treaty
document with additional proposals was unmanageable, inefficient
and unworkable and did not provide a viable manner in which to
proceed."

This part of the Summary was agreed upon after more than an hour
of debate as to which proposals should be seen as attempting to
bridge existing differences.

The significant divergence in the proposals to bridge differences
provides a clear indication that the Committee faces a deadlock
on the approach that should be taken in negotiating the SPLT.

Pakistan supported by many developing countries including India
proposed a way out of the deadlock, and this is stated in the
Summary. The proposal is "that before embarking on any
negotiations in accordance with any of the previous paragraphs a
comprehensive study be carried out jointly with UNCTAD to examine
the various implications of the draft SPLT for countries at
different levels of development with the view to taking an
informed decision on the negotiating approach to be pursued."

The US however expressed concern over this proposal and added a
caveat following the proposal that "Some delegations supported
this proposal while some other delegations opposed it."

The Summary of the Chair, which was finally agreed to by all
parties, further "recognized the importance of the work of the
SCP and emphasized that the work on patent law harmonization
should be progressed taking into account the interest of all
parties."

Originally, Brazil had proposed the use of the phrase "progressed
in a balanced manner", stating that such an approach had been
mentioned by numerous delegations present, in their statements.

However, following objections from the US, Argentina proposed to
replace it with "progressed taking into account the interest of
all parties."

The US delegation continued with its objections even to the
Argentina proposal but finally gave way when there was
overwhelming agreement with the intervention by India that "no
delegation can argue against" what was being proposed by
Argentina.

The Summary while mentioning the participation of
non-governmental organizations in the discussions, does not
explicitly state the position taken by each organization, as the
summary notes that "Their views are fully reflected in the report
of the session" that will contain all the interventions that were
made during the meeting.

The Summary also states, "The Representatives of the Eurasian
Patent Office (EAPO) and the European Patent Office (EPO) (both
intergovernmental organizations) supported the recommendations of
the informal consultations held in Casablanca on February 16,
2005."

There was a contentious debate on this, before a decision was
reached on how to reflect the views of the NGOs and
intergovernmental organizations in the summary.

The first draft summary that was prepared by the Chair named
specific NGOs and intergovernmental organizations and their
positions, in supporting or opposing the recommendations of the
informal consultations held in Casablanca.

However, after noting that it was not the practice during WIPO
meetings to name in the Chair's summary, NGOs and their
respective positions as they do not have decision-making powers
(although their views are persuasive), it was decided that the
names and their positions on the future work of the SCP be
removed from the Summary.

It was agreed that their views and interventions be reflected in
the report of the session. Only the positions of
intergovernmental bodies would be reflected in the Summary.

At a very late stage of discussions on the Chair's summary, the
delegation of Venezuela insisted that its views were not
reflected in the Summary. Another paragraph was added which
stated that the Venezuelan delegation wished to state expressly
that there was no consensus on the progress on the SPLT.

+

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