[A2k] US warns WIPO on Dev agenda

Sean Flynn sflynn at wcl.american.edu
Tue Dec 21 04:01:01 PST 2010

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Patents: US Official Warns Patent Holders May Abandon WIPO, Questions
Motives of Development Agenda Backers

World Intellectual Property Report: News Archive


US Official Warns Patent Holders May Abandon WIPO, Questions Motives of
Development Agenda Backers

GENEVA - A senior US official warned on December 16 that the World
Intellectual Property Organization could be seriously undermined if a
push for more focus on development issues at WIPO ends up leading to an
erosion of patent rights.

Betty King, US Ambassador to the United Nations organizations in Geneva,
said proponents for the so-called "Development Agenda" seem "hell-bent"
on shortening the duration of patents and creating more exceptions to
patent rights.

King cited as an example the recent debate at WIPO over a proposed
treaty for the visually impaired, where she claimed an agreement setting
out narrow exceptions to patent rules for improved access to
Braille-format books has been thwarted by Development Agenda countries
seeking much broader exceptions.

"[I]f we get to a system where the protections of patents are abrogated
in the name of development, then we certainly will kill that
organization," King declared. "So I worry very much about that."

"I am all pro-development," she declared. "But I'm also committed to
protecting the rights that were legally granted to American companies
and other companies for the work that they do."

The US ambassador warned the controversy "will only increase as time
goes by" and said it was "important to note that the Development Agenda
Group is led by Egypt, Brazil, India and Indonesia - countries that
themselves have patents to protect but also have thriving businesses in
generic drugs."

"I have questioned openly whether the deliberations on behalf of some
countries really reflect what goes on in their capitols," King declared,
earlier noting that patent offers have been stationed in Egypt and other
developing countries in a successful effort to help them increase their
patent applications. "I find that some of these discussions are sort of
counter-intuitive, but one never knows if that is the case."

US frustration with WIPO stems from the organization's inability to
conclude negotiations on outstanding treaties that, in some cases, have
been under negotiation for more than a decade. Chief among these is
WIPO's proposed Substantive Patent Law Treaty, which seeks to harmonize
patent requirements among the organization's member states.

Negotiations were launched in 2000, with a first draft of the treaty
produced in May 2001. The talks however, stalled in 2003 because of
sharp differences between developed and developing countries over the
scope of the proposed treaty.

Industrialized countries wanted WIPO to focus first on four technical
issues related to the granting of a patent: prior art, grace period,
novelty, and inventive step. Meanwhile a group of developing countries
led by Brazil and Argentina insisted that other issues of interest to
them be treated on an equal basis, such as the sufficiency of disclosure
requirements in patent applications, the protection of genetic
resources, effective mechanisms to challenge previous patents, and
technology-transfer provisions.

In 2004, Brazil and Argentina, supported by a number of developing
countries, initiated their call for a Development Agenda at WIPO. Among
other things, the proponents cited concerns about a growing gap between
developed and developing countries on technology and investment. The
proponents also charged that WIPO was engaged in rules-setting
activities that would have developing countries agree to burdensome
intellectual property protection standards that largely exceed existing
obligations under the WTO's TRIPS Agreement and voiced concerns about
"new layers" of intellectual property protection in the digital
environment which could obstruct the free flow of information.

In June 2007, WIPO members agreed to establish a permanent committee -
dubbed the Committee on Development and IP - to implement agreed
decisions and recommendations for addressing the concerns of the
organization's developing country members. They also agreed the
committee would address 21 recommendations covering technical assistance
and capacity-building, norm-setting, technology transfer, assessment and
evaluation of IP issues on development, and institutional matters.

US officials at the time expressed hope that the agreement would result
in a more cooperative atmosphere at WIPO and lead to progress in other
issues on the organization's work agenda, notably the stalled patent
harmonization treaty. However, those hopes have so far been dashed.

In the meantime, the frustration of the US and other industrialized
countries with WIPO's inability to address enforcement issues resulted
in the recent conclusion of the Anti-Counterfeiting Trade Agreement (see
"ACTA Text Finalized; Group Calls Process 'Unconstitutional' "
dfid=18851935&fname=a0c5d8g0t4&vname=wiprunotallissues>  [24 WIPR 22,
12/1/10]). The agreement, signed by the United States, the European
Union and nine other countries, includes provisions on civil, criminal,
border, and digital environment enforcement, as well as provisions to
assist the participating parties in their enforcement efforts and for
the establishment of best practices for effective IP rights enforcement.

Asked by BNA whether ACTA risked making WIPO irrelevant, King said she
did not think so.

However, "I think the people at WIPO are aware that without successful
conclusions to these longstanding negotiations the people who apply for
patent protection may find ways around WIPO."

"That is obviously the sort of existential threat to WIPO," she
continued. "I think the Director General (WIPO Director-General Francis
Gurry) understands that very clearly."



Sean Flynn

Associate Director

Program on Information Justice and Intellectual Property

American University Washington College of Law

202 274 4157



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