[Ip-health] SCP 15: Statement of the International Chamber of Commerce on exceptions and limitations

Thiru Balasubramaniam thiru at keionline.org
Wed Oct 20 00:15:01 PDT 2010


ICC Statement on exceptions and limitations

To WIPO Standing Committee on the Law of Patents: Fifteenth Session

October 11-15, 2010 (Geneva, Switzerland)

Intervention made by Richard Wilder (Associate General Counsel for IP  
Policy at Microsoft) on behalf of ICC at meeting of the WIPO Standing  
Committee on the Law on Patents (SCP/15)

Version as read October 12, 2010

Thank you Mr. Chairman.

I appreciate this additional opportunity to intervene on behalf of the  
ICC on these
important issues.

The studies on exceptions and limitations provide a comprehensive and  
discussion of exclusions from patentability and exceptions and  
limitations to
patentees’ rights. We have not had an opportunity to review the study  
and its
annexes in detail. Given the depth of the analysis of the situation in  
a number of
WIPO Member States, such an analysis will take considerable time and  
effort and we
will provide appropriate input in due course.

At this point, we make two general observations.

First, the ICC has long maintained that patents are critical to  
provide an incentive
and reward for innovation and investment in R&D and future inventions  
in all fields
of technology. Patents are also an essential mechanism to facilitate  
the transfer of
technology as well as to facilitate foreign direct investment.

Exceptions and limitations are provided for under international law  
and at the
national level in patent systems. These are appropriate elements in a  
patent system that includes the grant of rights and their enforcement.

But, we would caution against any activity at the national or  
international level to
broaden exclusions from patentability – such that the exception  
swallows the general
rule. That is, that undermines the functioning of patent systems as a  

SCP/15/3, Annex III brings an interesting review of patent exceptions  
in the health
context. The representative of the IFPMA spoke to this already and I  
won’t deal with
it internally. I would only reinforce that negotiations with rights  
holders on licensing
are usually a better tool to obtaining policy objectives like improved  
healthcare, food
security and tackle climate change.

Second, there are some points in the annexes where the analysis of  
international law
– in particular the TRIPS Agreement – should be more rigorous.

For example, there are statements at page 23 of SCP/15/3, Annex I and  
page 36 of
SCP/15/3, Annex II that suggest that certain requirements under the  
TRIPS Agreement
have little or no meaning.

At one point, the annexes state that WTO “contracting parties have  
wiggle room to exclude subject matter from patentability on the basis  
that it does not
constitute an invention (or an invention in a field of technology).”Of  
international agreements are subject to interpretation – by the  
members of that
agreement and any governing body. But this statement and similar ones  
are made
with little or no analysis with reference to the Vienna Convention on  
the Law of
Treaties or to relevant decisions by panels under the WTO’s Dispute  

I believe that this view is consistent with that expressed by the  
distinguished delegate
of Tanzania – in particular in his point about Article 27 having  

This is important and we are concerned about this lack of rigor for  
two reasons.

First, as previously discussed, we feel that patents – in all fields  
of technology – play a
critical role in incentivizing research and development as well as  
facilitating the
transfer or technology. Suggestions that decisions as to whether and  
what to provide
patent protection are uncertain runs counter to this role.

Second, business relies on legal stability to make investments –  
especially the long
term investments in research and development of new products and the  
necessary to bring them to market. Perhaps due to the lack of rigor of  
the analysis in
the study and its annexes, they suggest an unfortunate degree of  
uncertainty in the
establishment and enjoyment of intellectual property rights. This  
uncertainty would
frustrate the goals and aspirations of the patent system.

Thank you Mr. Chairman.


Thiru Balasubramaniam
Geneva Representative
Knowledge Ecology International (KEI)
thiru at keionline.org

Tel: +41 22 791 6727
Mobile: +41 76 508 0997

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