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WIPO committee on patents struggles to decide on future work

The week has been a theatre of strong stances dividing developed and developing countries on areas such as patents on health, patent flexibilities and the quality of patents.

On the last day of the weeklong meeting of the WIPO committee on the law of patents, discussions are ongoing to find consensus on the future work of the committee. The week has been a theatre of strong stances dividing developed and developing countries on areas such as patents on health, patent flexibilities and the quality of patents.

The 18th session of the Standing Committee on the Law of Patents (SCP) is taking place from 21-25 May, and while delegates are trying to find agreement on what should be on the agenda of the next session, the chair expressed concern yesterday about the fragile balance that brought the committee back on track after a hiatus of several years.

Most items on the agenda have been hotly discussed. One of them was the issue of patents and health and whether patents represent a barrier to the availability of medicines, or are having a beneficial impact.

Patents on Health, WHO/WIPO/WTO Trilateral

Delegates discussed two proposals on the table, one submitted by South Africa on behalf of the African Group and the Development Agenda Group, and one submitted by the United States. All official documents for the meeting are made available here.

The South African proposal [pdf] seeks to help developing countries to adapt their patent regimes to make full use of the flexibilities available in the international patent system in the interest of public health.

The United States, presenting its proposal [pdf], warned against any weakening of patent protection as a solution to the lack of availability of medicine in developing countries. To the contrary, the delegate said, less patent rights would be detrimental to innovation. Many other factors are hindering the availability of medicines, the US said, adding that most medicines on the WHO’s list of essential medicines are not protected by patents while their availability is restricted in many countries.

Disregarding the many other factors than patents affecting availability of medicines in a study would “invest WIPO’s limited resources to inaccurately quantify the impact of the patenting system on the availability of medicines,” they said. By contrast, they said, conducting a study on the positive impact of patents in providing medicines to developing countries would “restore balance to the discussion.”

The US also warned against duplication of work between the various WIPO committees, and in particular the Committee on Development and Intellectual Property (CDIP), but also work carried out by other international organisations, such as the trilateral cooperation between WHO, WIPO and the World Trade Organization (WTO).

A joint study on “Promoting Access and Medical Innovation: Intersection Between Public Health, Intellectual Property and Trade,” [pdf] should be released in 2012, according to WTO. The publication of the study should predate any further work at the SCP on the issue, the US said.

Developed countries said the SCP should not duplicate the work done elsewhere, and some of them, such as Switzerland, suggested this item could be addressed in the context of the CDIP instead of the SCP. Developing countries supported the African Group/DAG proposal.

Some developing countries also said that the issue of falsified medicines did not belong in the SCP, as the issue was already discussed widely in WHO, where members were still trying to agree on a common definition. The issue of falsified medicines is mentioned in the US proposal, with the WHO being invited to make a presentation to the SCP.

Future Work, Two Perspectives on SCP’s Mandate

Discussions on the future work of the SCP began on Thursday and in light of a clear divide among member states, Ragonesi issued informal suggestions (IPW, IP Live, 24 May 2012) on 24 May and member states moved into informal consultations.

They reconvened this morning just to decide that the rest of the day would be devoted to more informal consultations on the future work of the committee, and they would reconvene at the end of the afternoon for what Ragonesi hoped would be a successful ending of the 18th session of the SCP.

There is a divide on which agenda items should remain on the agenda of the SCP. One of them is the item on the contribution of the SCP to the implementation of the 2007 WIPO Development Agenda Recommendations. This has been a longstanding issue between developed and developing countries.

The 2010 WIPO General Assembly took a decision “to instruct the relevant WIPO Bodies to include in their annual report to the Assemblies, a description of their contribution to the implementation of the respective Development Agenda Recommendations,” according to WIPO. There have been ongoing discussions between delegates, as developing countries are requesting that an agenda item on the Development Agenda be added to all committee’s agenda.

Developing countries, including the DAG, South Africa, Brazil, Venezuela, Indonesia, India, and the African Group asked that this be a standing item on the SCP agenda [pdf] but developed countries, and in particularly Group B developed countries, said due to disagreement, little progress had been made at the SCP that could be reported to the General Assembly, and said the item should not be on the agenda of the SCP permanently.

Developing countries which took the floor in response said that disagreement did not mean lack of progress, and discussions on important issues such as patents and health were worth reporting.

The European Union as well as Group B mentioned the SCP’s mandate, as stated [pdf] at the first session of the committee in June 1998 was “forum to discuss issues, facilitate coordination and provide guidance concerning the progressive international development of the law of patents, including the harmonization of national laws and procedures.”

Divergences also showed about cross-border aspects of confidentiality of communications between clients and patent advisors, technology transfer, and exceptions and limitations to patent rights.

On the confidentiality of communications [pdf], developing countries said this item should not remain on the agenda of the SCP since the management of this issue is based on national modalities.

Most developed countries are concerned about the fact that some countries do not have a legislation covering confidentiality of communications between clients and patent advisors in cross-border situations, and this could involve possible disclosure.

Developed countries are in favour of further work in this area. Switzerland, supported by a number of developed countries, said it supports the idea of minimum standards, which should not be mandatory, but would give guidelines to WIPO member states on how best to address the issue and to define minimum standards.

This morning, Brazil also presented the second phase of its proposal on exceptions and limitations, indicating a preliminary work programme for this second phase, including a one day seminar to be held at the next session of the SCP on the subject. The seminar would host a presentation of WIPO’s chief economist on the effectiveness of exceptions and limitations in addressing development concerns, and how national capacities affect the use of those exceptions and limitations.

The WIPO secretariat would also be asked to prepare an analysis on exceptions and limitations most commonly used by member states, taking into account public policy objectives and societal needs, the Brazilian delegate said.

NGOs Upset at Blocking of Health Proposal

A group of 34 nongovernmental organisations including the Third World Network, Oxfam, Médecins Sans Frontières, and the People’s Health Movement yesterday issued a letter [doc] strongly supporting the African Group/DAG proposal on public health and reacting to the US proposal, asking the country to withdraw it.

Knowledge Ecology International also published an open letter “to those who collectively produced” the 23 May US statement to the SCP on the topic of patents and health. In particular, the letter underlines the effect of patents on the price of medicines.

“Does the USPTO believe that ‘Conducting a study on the positive impact of patent systems in providing lifesaving medicines to developing countries’ is anything more that defending the indefensible, and using the power of the Obama Administration against the developing countries who have tried to fight the pharmaceutical company’s most egregious abuses in terms of pricing and anticompetitive practices?” the letter asks.

The 23 May US statement is available here.

By Catherine Saez