[Ip-health] Opening statement of India at 23rd session of WIPO Standing Committee on the Law of Patents

Thiru Balasubramaniam thiru at keionline.org
Mon Nov 30 13:08:59 PST 2015


*Permanent Mission of India Geneva*

*Opening Statement by India at the 23rd session of SCP in World
Intellectual Property Organization (WIPO), Geneva on 30 November 2015,
delivered by Dr. Sumit Seth, First Secretary (Economic)*

*Madam Chair,*

At the outset, on behalf of the Delegation of India, I would like to
congratulate you and the Vice Chairs, elected during this 23rd session of
SCP. We would also like to compliment the WIPO Secretariat for preparing
the documents for discussion in the present session.

*Madam Chair,*

Patent systems have been created, in the interest of national economy and
the Patent Offices have to act as a steward of the public interest so as to
protect the public against the issuance of frivolous patents that add
unnecessary costs and confer unwarranted market distortions.

Issuance of valid patents to encourage invention, disclosure, and economic
development should be the final objective of Patent Systems.

Delegation of India believes that development of patent system and use of
patent rights should operate in a balanced and objective manner and should
meet the goal of providing the protection for moral and material interests
of inventors, and at the same time, should assist the development aspects
of the society.

*Madam Chair,*

India would like to re-iterate that harmonizing of IP laws across countries
with asymmetric distribution of IP assets serves the interests of rent
seekers who are predominantly in developed countries rather than that of
the public in developing countries.

We would like to re-state our belief that Policy flexibility is a SINE QUA
NON if enlightened societies are to ensure that the intended beneficiaries
- the public in each country, would not be worse off as a result of such

India attaches great importance to the work of SCP and notes the work
programme for the present session, in which important issues such as
Exceptions and limitations to patent rights, Patents and health and
Transfer of technology are retained in the agenda.

*Madam Chair*

The Delegation of India would like to reaffirm its views expressed in the
last SCP session, in particular, on the issues related to Exceptions and
limitations, Quality of patents, Patents and health, Client-Attorney
privileges and Transfer of technology.

In absence of an obligation on technology transfer, asymmetric Intellectual
Property rent flows would become a permanent feature and the benefits of IP
protection would forever elude consumers in developing countries. The
disclosure in a patent should divulge the technological information in such
a manner, so that a skilled person can translate the information into
commercial reality without undue burden of experimentation or further

This disclosure is the QUID PRO QUO of the patent system. Unfortunately,
transfers of technologies almost always require transfer of accompanying
trade secrets as well, thereby casting doubt about the true efficacy of
patent as stand-alone system as a vehicle of technology transfer and
knowledge sharing.

*Madam Chair,*

We take this opportunity to recall *Objectives of the TRIPS agreement and
its mandate that *protection* and enforcement of intellectual property
rights should contribute to the promotion of technological innovation and
to the transfer and dissemination of technology, to the mutual advantage of
producers and users of technological knowledge and in a manner conducive to
social and economic welfare, and to a balance of rights and obligations.*

*We take note of the document, SCP/22/4 concerning a study on the
sufficiency of disclosure under the transfer of technology and would like
to express our view in details on this document during the discussion.*

*Madam Chair,*

In the context of flexibilities of the system and exceptions and
limitations,we may recall the *Synthesis Report of the Secretary-General,
United Nations, The Road to Dignity by 2030: On the Post-2015 Agenda*,
where it is mandated that “ we must facilitate access to the benefits of
technology for all, including the poorest, while ensuring that intellectual
property regime creates the right incentives for the technological
innovation needed for sustainable development.

The urgency is particularly great in the case of low-carbon technologies as
part of our efforts to mitigate human-induced climate change”. [as stated
in paragraph 123]. And still further, its mandate to ensure that our global
intellectual property regimes and the application of TRIPS flexibilities
are fully consistent with and contribute to the goals of sustainable
development. [paragraph 126].

We appreciate the painstaking work undertaken by the Secretariat in
collecting information on exceptions and limitations, but at the same time
we reiterate that it is time that this information be properly analyzed to
distil out the contribution of exceptions and limitations to the
development. We reaffirm our full support to the work program as proposed
by Brazil through Document No. SCP/19/6.

While this committee discusses the issues of Patents and Health, the
committee may recall the Resolution adopted by the General Assembly, United
Nations on 25 September 2015 on Transforming our world: the 2030 Agenda for
Sustainable Development and its Goal 3b, that is,

*“Support the research and development of vaccines and medicines for the
communicable and non-communicable diseases that primarily affect developing
countries, provide access to affordable essential medicines and vaccines,
in accordance with the Doha Declaration on the TRIPS Agreement and Public
Health, which affirms the right of developing countries to use to the full
the provisions in the Agreement on Trade-Related Aspects of Intellectual
Property Rights regarding flexibilities to protect public health, and, in
particular, provide access to medicines for all”.*

We may also recall the Objective of the TRIPS agreement in Article 8, and
Doha declaration of TRIPS and Public health and their calls for empowering
states to take appropriate measures to protect public health and nutrition.
We re-iterate our appreciation to the Secretariat for their work related to
patent and health. Also, we take the opportunity to re-iterate our support
to the paper submitted by African Group and DAG through document number

*Madam Chair*

We are keen to take part in the discussion on disclosure of INN as in
SCP/21/9. We believe that these issues have deep implications in public
health and availability of essential medicines. Concerning feasibility
study on the disclosure of International Nonproprietary Names (INN) in
patent applications and/or patents and on the issue of a study related to
Markush formulae, we reiterate the huge impediment created by them in
healthcare industry by creating mysterious cobweb of unreal compounds to be
discovered in future thus stifling innovations in the field of
pharmaceutical technology.

On the issue of Quality of patents, we take note of sharing session on
experiences of experts from different regions on inventive step assessment
in examination, opposition and revocation procedures; however, we would
like to reiterate that the study on inventive step and the present sharing
session must not be construed as a tool for harmonization of the
substantive issues of patents including inventive step.

We would like to reiterate our view that every member state retains its
right to define the inventive steps in its own way to utilize the patent
system to maximize the benefit to the inventors as well as to the members
of the society. As far as quality of patents and related documents are
concerned, we reiterate that the quality of examination needs to improve
substantially in conformity with policy objective of a country and the
sharing of work of other patent offices is not the remedy for improving the
quality of patents.

Rather the sharing of work of other offices could weaken examination
process and capability of patent offices in Developing Countries. Thus,
steps should be taken to build capacity among patent offices of Developing
Countries for enabling them to perform their quasi-judicial functions,
according to their national laws, in the best manner possible. Therefore,
the work sharing should not become an area for norm setting in future.

On the issue of Client-Attorney privileges, we reaffirm our views that the
issue is of substantive nature and could be governed by national laws, and
therefore, should be discontinued from the work of Committee.

On the issue of a proposal by Group of Latin American and Caribbean
Countries (GRULAC), SCP/22/5, we believe that any revision of 1979 WIPO
Model Law for Developing Countries on Inventions should be fully and
adequately development-oriented and should provide the legislative and
policy options for the Developing Countries to fully utilize TRIPS

*Madam Chair*

Before concluding, let me assure you that the Delegation of India will
participate in committee’s deliberations in a constructive manner.

*I thank you once again Madam Chair for this opportunity.*

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