[Ip-health] TWN Info: Different priorities emerge as Patents Committee begins discussion

Sangeeta Shashikant ssangeeta at myjaring.net
Fri Jan 31 07:26:34 PST 2014

Dear Colleagues,
The 20th Session of the WIPO Standing Committee on Patents (SCP) began on
Monday. Please find below a TWN news report on opening session of the SCP.
The report is available at

Sangeeta Shashikant
Third World Network
WIPO: Different priorities emerge as Patents Committee begins discussion

Alexandra Bhattacharya (Geneva):  Developing countries attending the 20th
Session of the WIPO Standing Committee on Patents (SCP) called for its
work to include development orientation andhighlighted the importance of
policy space in patent law to address development needs. They also
prioritized in SCP the work on exceptions and limitations,patents and
health and transfer of technology.

	On the other hand, Group B (composed of developed countries) called for a
focus on the issue of quality of patents, which includes the use of work
sharing programs to improve the efficiencies of the patent system and
confidentiality of communications between clients and their patent

	The 20th session of SCP is meeting in Geneva from 27th to 31stJanuary,
	Historically significant differences tend to emerge from SCP discussions
largely along north-south lines. Developed countries have long attempted
to pursue a work-program in SCP that leads to harmonization of patent law
or procedure. These attempts have not been successful as developing
countries insist on policy space in their patent law. Developing countries
have also pushed for a work-program in SCP that addresses basic
development concerns such as access to medicines, use of flexibilities
including E&L and transfer of technology.

	The 19th session of the SCP could not arrive at an agreement on any of
the substantive agenda items and it was agreed “that work for the next
session would be confined to fact-finding and not lead to harmonization at
this stage”. Thus, the 20th session of  SCP  is expected to share factual
information about the current law and practice among WIPO member States
regarding issues on the agenda of the SCP without considering normative
outcomes that may lead to harmonization.

	The 20th session of SCP will deliberate on the following important
issues: exclusions from patentable subject matter, exceptions and
limitations to patent rights, patents and public health, and transfer of
technology. These issues are critical for developing countries to ensure a
balance between the protection of intellectual property rights and
protection of human rights and developmentneeds.  This session will also
discuss quality of patents and client attorney privilege, agenda items
pushed by developed countries.
Further, it is expected that the Global Challenges Division of WIPO will
inform Member States on the patent-related aspects of its activities, as
per the decision of the 2013 WIPO Assemblies.

	As the SCP session opened, Mokhtar Warida, an Egyptian delegate for WIPO
based in Geneva was elected as Chair of the SCP. Japan, on behalf of Group
B, said that although it accepted the chairmanship, it wished to state
“for the record” that the SCP was a technical committee and should be
chaired by capital experts adding that the current situation should not
“be regarded as a precedent”.

	Egypt also requested for the agenda item “Contribution of SCP to the WIPO
Development Agenda Recommendations” to be added to the agenda. Japan, on
behalf of Group B, reluctantly accepted this item “with the understanding
that this agenda item is not a standing or permanent agenda item.”

	The WIPO Deputy Director General, Innovation and Technology Sector, James
Pooley in his opening remarks referred to the SCP as one of  the few
multilateral fora where all stakeholders could engage on “questions which
were global in nature and be engaged in shaping individual solutions”. He
also welcomed the initiatives that allowed sharing of experiences amongst
member states which would  “enable delegates to be acquainted with
different systems and which could be used in the national and
internationallevel”. He also noted that the convergence of national laws
of key aspects of patent law have also been under discussion and in this
context, member states have been discussing best practices.

	South Africa on behalf of the Africa Group said Development Agenda
implementation requires the SCP to give due account to development
considerations, including  " recognizing the need for policy space for
developing countries to design and implement national patent law in a
manner conducive to their national development ".
It further said "International harmonization of patent laws without giving
due account to differences in levels of social, economic andtechnological
developement would not be in the benefit of all the Member States".

	It added that ซ patents have a direct and significant impact
oninnovation, economic growth and social development, and that is why it
is more necessary than ever to strengthen the fundamental balance between
the private interests of right holders and public interests, especially in
the patent system ป, adding that SCP activities should facilitate the
dissemination and transfer of technology and ensure that the patent system
contributes to the promotion of progress and innovation.

	On the issue of E&L, South Africa stressed that African countries have
recognized the need to adapt their national legislation on patents based
ontheir respective economic and social situations and the importance of
E&L for countries wishing to develop their own system intellectual
property. Africa Group is keen to see the SCP contributing to a better
understanding and better application of exceptions and limitations, on the
basis of the proposal by Brazil, South Africa further said. It also
expressed hopes that the seminar on E&L to patent right will contribute to
an understanding of how E&L serve specific development objectives and the
challenges faced by the countries  in implementing E&L.

	On quality of patents, Africa Group reiterated its concern about the lack
of a precise definition of the concept of "quality of patent", adding that
quality of patents is largely based on the criteria of patentability which
depends essentially on the development objectives of each country.
	South Africa added that quality cannot be improved by simply adopting the
practice of other Patent Offices, and that the harmonization of patent law
may undermine flexibilities existing in various national patent laws. " It
will be important for national offices to retain discretion in determining
the patentability criteria", South Africa further said.
[Currently, there are separate proposals by Canada, UK, Denmark, US and
Spain on this topic. These proposals mainly seek to promote work sharing
between patent offices to promote patent quality. The concern of
developing countries is that the aim is not to address issues of patent
quality but rather to promote harmonization of patent office procedures.]

On patents and health, Africa Group stressed that WIPO must strengthen its
commitment and involvement in this area. South Africa recalled that the
Africa Group and the DAG jointly submitted a proposal (SCP/16/7 and
SCP/16/7 Corr.) which covers a work program which aims to assist Member
States, particularly developing countries and least developed countries,
to adopt and adjust their patent systems in order to take full advantage
of the flexibilities in the international patent system to promote their
policies on public health.

	South Africa also referred to US’ counter-proposal (SCP/17/11) on patents
and health as ซ interesting ป, adding that its elements were not related
to patents and thus
fell outside the mandate of SCP. It expressed hope that the US proposal
will  not distract the discussion from the objective of enabling
developing countries and least developed countries to take advantage of
the flexibilities in the international patent system for their public
health needs.

	With regard to technology transfer South Africa emphasized that documents
of the Secretariat on WIPO’s activities in the context of technology
transfer need to enable the SCP to undertake concrete actions in this
area, adding that this issue must be discussed substantially by the
Committee as it concerned the relationship between patents and innovation.

	[WIPO Secretariat has presented a study onpractical examples and
experiences on patents and technology transfer (SCP/20/10), however, the
revised study is inconclusive particularly as it does not explore cases
where patent holders restrain transfer of technology.]

	Benin, on behalf of the LDC Group expressed hope that SCP’s work on
exceptions and limitations and would improve understanding of how E&L can
be implemented for a better impact on economic and social development. It
also added that the disparity in development levels is behind the
difference of views on quality of patents. It also welcomed the briefing
session on patents and health with the objective of making progress
towards a clearly defined program to enable countries to make use of the
flexibilities for their public health priorities.

	India said that the development of patent system and the use of
patentrights should operate in a balanced manner that meets the objective
of providing protection for the moral and material interests of inventors,
and at the same time meets the objective of promoting the enjoyment of
human rights of the other members of the society as well. Ultimately a
patent is a social product and has a social function, India added.

	On the issue of patents and health, India said that there was an urgent
need not only to study the flexibilities under TRIPS and effective
implementation or utilization of compulsory licensing provisions under
patent law in order to provide the life saving drugs on affordable price
but also to study the impact of grant of compulsory licenses and the
consequential impact on prices of patented drugs. It also emphasized that
ever-greening policies for patenting incremental innovations without
substantial improvement would have adverse impact on delivery of
healthcare services.  It also expressed strong support for the Joint
Proposal by Africa Group and the Development Agenda Group (SCP/16/7).

	With regard to the quality of patent, India said that patent offices
cannot maintain the quality of patents without maintaining standards for
examination and search. It added that quality of examination of patent
applications needs to improve substantially so that we do not create huge
social cost of granting patents to insignificant improvement which only
lead to litigation and create barriers to technology dissemination.

	The sharing of the work of other offices is not the remedy for improving
the quality of patents and thus cannot be considered to be a solution for
addressing backlog and as an answer for improvement in quality of patent,
India said adding its strong belief that work sharing will adversely
affect capacity of the IP offices in developing countries to assess
applications. It also stressed that this should not become an area for
norm setting in future and steps should be taken to build capacity among
IP Offices of the developing countries to enable them to carry out their
quasi-judicial functions in thebest manner possible.

	India also reaffirmed its support to the work program proposed by Brazil
(SCP/19/6) on exceptions and limitations and stressed on the need to study
 in greater detail the various impediments in licensing agreements
relating to transfer of technology so that appropriate steps can be taken
to address this. It also noted that its request for practices adopted by
companies across Member States concerning voluntary licensing of patents
has been noted by the Secretariat [SCP/20/10], adding that it appreciated
a meaningful outcome of the same.
Group B (composed of developed countries) said that the SCP should discuss
issues of substantive law, in particular quality of patents including
opposition systems and the confidentiality of communications between
clients and their patent advisors.

	Czech Republic, on behalf of Central European and Baltic States (CEBS)
also expressed interest on the issue of quality of patents, and cautioned
against any duplication of work in WIPO or with other organizations like

	Greece, on behalf of the EU, stated that it attached great importance to
“advancing work on the quality of patents along the lines proposed by
delegations from Canada, the UK, Denmark, the US, and Spain.” Adding that
it was committed to continuing work on issues of opposition systems and
confidentiality of communication between clients and their patent
advisors, which are of benefit to users of the patent system.

	On patents and health, the EU stated that future initiative of the
Committee in this area should be carefully considered in light of the
great incentive the patent system can provide to innovation in order to
address the evolving global disease burden, and other health challenges.
Similarly, it was of the opinion that possible further activities of this
Committee in relation to the transfer of technology should be balanced,
and objective, and considered in light of the great many examples of the
benefits of the patent system to technology transfer, and the relatively
fewer examples of the patent system as an impediment.

	Third World Network, an observer to the SCP said that deliberations
within SCP should inform member States on how to better equiptheir
national patent law to achieve their development needs by balancing the
public and private rights. Towards this end, TWN called upon Member States
not to treat patents as an end in itself and to treat patent subservient
to the development objectives. TWN also congratulated the efforts in
Brazil and South Africa to reform their patent regime to orient towards
their development needs and expressed its grave concern on the attempts of
pharmaceutical industry to prevent the patent reforms in South Africa and
also the efforts of pharmaceutical industry to exert political pressure on
India to prevent the use of TRIPS flexibilities.

	Exceptions and Limitations
The SCP also commenced discussion on the topic of exceptions and
limitations. The discussion consists of three segments.
On Monday a substantive discussion took place on Secretariat’s documents
on the use of the following exceptions and limitations: (i)Private and/or
Non Commercial Use (SCP/20/3); (ii)Experimental Use and/or Scientific
Research (SCP/20/4); (iii)Extemporaneous Preparation of Medicines
(SCP/20/5); (iv) Prior Use (SCP/20/6) and (v) Use of Articles on Foreign
Vessels, Aircrafts and Land Vehicles (SCP/20/7).
Algeria, on behalf of the African Group commented on Secretariat’s
documents, stating that it paid insufficient attention to the
implementation challenges of the exceptions and limitations in member
states. It added that in cases where the Secretariat mentioned that there
was no implementation challenges it was due to non-implementation of the
particular exception and limitation. It noted that developing countries
andLDCs had significant implementation challenges with respect to
exceptions and limitations due to lack of human resources, awareness and
general mastering of the subject.

	The second and and third segments will entail a seminar on the (i)
effectiveness of exceptions and limitations when addressing developing
concerns and how national capacities affect the use of exceptions and
limitations (which will include a presentation by the WIPO Chief
Economist) and (ii) case studies on implementation of exceptions and
limitations (presentations by Member States). The seminar will be held on
Friday, the last day of the SCP session.

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