[Ip-health] IP-Watch: Global Differences On Patents Lead WIPO Patent Law Committee To Stumble On Future Work

Thiru Balasubramaniam thiru at keionline.org
Mon Nov 10 06:51:19 PST 2014


http://www.ip-watch.org/2014/11/10/different-views-on-patents-lead-wipo-patent-law-committee-to-stumble-on-future-work/

10/11/2014 BY CATHERINE SAEZ <http://www.ip-watch.org/author/catherine/>,
INTELLECTUAL PROPERTY WATCH

Once again, differences over the role of a World Intellectual Property
Organization committee last week came in the way of consensus and prevented
delegates from agreeing on future work. At the heart of the discontent was
the perceived imbalance of the proposed programme of work, which some said
disregarded the interests of developing countries. A speaker for the
African region gave a striking speech on the Ebola crisis as an example of
the failure of the patent system.

The Ebola crisis is an example of the failure of the patent system, a
delegate from Kenya said, “Thousands of people are dying, yet this patent
system, this organisation who is supposed to cater for our interests does
not seem to care.”

“If we cannot have a patent system and pharmaceutical industries work for
all of us, then let’s not pretend and use the word balance,” he said.
<SNIP>

African Group: Too Much Patent Quality Focus, Not Enough Health

The main problem in the meeting was the amount of work envisaged on the
quality of patents and work-sharing, compared to exceptions and limitations
to patent rights.

Although most regional groups said they could agree to the draft work
programme with a few amendments, the African Group remained firm in its
request. The Kenyan delegate, on behalf of the group, delivered a vibrant
speech chastising the SCP for not taking into account the plight of African
countries facing major public health problems, in particular at that time,
the Ebola crisis.

He said two studies on inventive step and sufficiency of disclosure had
been agreed at the 20th session of the SCP, and thus would be carried out
for the next session. But, he said, this should be balanced with two
studies, one on limitations and exceptions to patent rights, and the other
on so-called “Markush claims.”

Markush claims are defined in a May 2011 proposal
<http://www.wipo.int/edocs/mdocs/scp/en/scp_16/scp_16_7.pdf> [pdf] by the
African Group and the Development Agenda Group as “claims that may apply to
a broad range of compounds.”

In their proposal, the groups noted, “It could be worthwhile to analyze
whether such claims based merely on theoretical inference can be considered
to satisfy the criteria for patentability.”

The Ebola crisis is an example of the failure of the patent system, the
Kenyan delegate said, “Thousands of people are dying, yet this patent
system, this organisation who is supposed to cater for our interests does
not seem to care.”

“If we cannot have a patent system and pharmaceutical industries work for
all of us, then let’s not pretend and use the word balance,” he said.

Faced with disaster in Africa on public health, he said, “we have a problem
and we need to see flexibility to ensure that the patent system does not
become a hindrance.” The African Group is ready “to take the blame” for not
agreeing on the draft work programme “for the sake of our people,” he said.

Meeting Chair Warida, seeking a link between Ebola and the patent system,
said the world is responding to the crisis and asked Kenya which studies
would help the situation. The Kenyan delegate pointed to the requested
studies on INNs and Markush claims.

However, the two studies requested by the African Group could not be agreed
upon. Brazil also requested studies on exceptions and limitations and on
patents and health. India also supported a study on Markush claims. None of
the studies was agreed.

Without consensus on future work, the agenda of the next SCP has only the
two studies agreed upon at the last session of the committee.

In his concluding remarks, the Czech Republic delegate noted his concern
about “the attempt to divide this house between developed and developing
countries,” which he qualified as “a dangerous way for all of us.”

<SNIP>

Patents and Health on Agenda

Earlier in the week, patents and health were discussed in the committee,
and in particular the study
<http://www.wipo.int/edocs/mdocs/scp/en/scp_21/scp_21_8.pdf> [pdf] carried
out by the WIPO secretariat on the “Role of Patent Systems in Promoting
Innovative Medicines, and in Fostering the Technology Transfer necessary to
Make Generic and Patented Medicines available in Developing Countries and
Least Developed Countries.”

The European Union in its statement said the study reaffirms the “critical
role of patent protection for pharmaceutical innovation.” They also said
the study confirms that IP protection is “a requisite condition for
pharmaceutical technology transfer,” while not the only factor.

Brazil proposed further studies in relation to the patent system and the
availability of medicines in developing countries and least-developed
countries.

Egypt pointed to the self-assessed challenges of the study, some of which
are noted in paragraph 8 of the study, such as the fact that “the use of
patenting activity to measure innovation may pose challenges.”

The study states that, “The value of a pharmaceutical innovation may not be
captured by merely counting the patents or patent application.”

India concurred and said measuring patent activity is not a valid
measurement. Algeria underlined that according to the World Health
Organization, strong patent protection may not facilitate research and
development (R&D) in developing countries.

Knowledge Ecology International (KEI) underlined the very high prices of
new drugs, citing cancer drugs which could be priced at over US$ 100,000
per year per patient and beyond, linking those high prices to the monopoly
awarded by patents.

KEI said one of the approaches worth exploring “is to delink the patent
from the notion of an exclusive right, and make the patent a mechanism to
establish a claim on innovation inducement prizes, and are given as a
reward for innovation – as a substitute for the grant of a monopoly.” KEI
suggested the SCP undertake a review or ask for a study of the provisions
in national patent laws that would enable full de-linkage of drug prices
and R&D costs.

KEI mentioned two research notes it published in 2014: Recent European
Union Compulsory Licenses
<http://keionline.org/sites/default/files/Annex_B_European_Union_Compulsory_Licenses_1Mar2014_8_5x11_0.pdf>
[pdf],
and Recent United States Compulsory Licences
<http://keionline.org/sites/default/files/Annex_A_US_Compulsory_Licenses_7Mar2014_8_5x11.pdf>
 [pdf].

<SNIP>



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