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09.17.11

Cablegate: In 2010, Patent Harmonisation “Not Welcomed by Developing Countries”

Posted in Africa, America, Asia, Cablegate, Law, Patents at 4:24 am by Dr. Roy Schestowitz

Cablegate

Summary: How US diplomats view negotiations whose goal is to legitimise monopolies in countries that have no interest in these

According to the following year-old cable, specifically in ¶5, “Member States negotiated informally a compromise work program that ensured balanced and focused work for the SCP [Standing Committee on the Law of Patents]. The proposed work program included: 1. further study on technology transfer concerning the relationship of patent technology transfer and innovation; 2. work on limitations and exceptions that included the external expert study and Brazil’s work program proposal; 3. patent administration issues that included work on patent quality management and further work on dissemination of patent information that looked at digitization issues and access to complete patent information; 4. further work on client-attorney privilege to solicit Member State input on national experiences; 5. future conference on public health and food security issues; and 6. reaffirming that the non-exhaustive list of issues for possible discussion by the SCP remain open for further elaboration at the next meeting, but agreeing that Member States would refrain from adding on to the list at this session, so as to ensure that work on the existing studies could be more focused. These items were truly a compromise text, particularly for Group B, as our primary objective to discuss patent harmonization issues was not part of this list and many of the items had more of a developing country interest/slant. On day one of our conversation concerning future work, we reached agreement among Group B countries, GRULAC, Eastern European countries, Singapore, Korea, the regional coordinator of Africa, Angola.”

They are trying to convince developing countries to give up and accept a system which harms them greatly. With our emphasis on the relevant parts, ¶7 carries on by noting that “While Group B and the U.S. were disappointed that the agreement reached the day before did not satisfy all of the Africa Group and the Asia Group, we were willing to negotiate further from our compromise text. However, it became clear that the Africa Group and some Asian Group countries were not willing to move from their position. Group B in particular was willing to add on to the non exhaustive list with the inclusion of “work sharing” and the “strategic use of IP in business” as proposed by the Group of Eastern European Countries. Despite developing countries’ insistence that the non exhaustive list remain open, Indonesia and India opposed the Group B suggestion of “work sharing”, arguing that it was duplicative of work at the PCT working group and that it was patent harmonization-related and therefore not welcomed by developing countries. Further, even though Group B reminded these countries that their proposed suggestions on the list were duplicative of work occurring in the Committee on Development and IP (CDIP), Egypt’s response was that development agenda work in CDIP was a cross-cutting issue throughout the Organization, and therefore duplication was needed.”

Here is the cable in full:


VZCZCXYZ0005
RR RUEHWEB

DE RUEHGV #0136/01 0491710
ZNR UUUUU ZZH
R 181701Z FEB 10
FM USMISSION GENEVA
TO RUEHC/SECSTATE WASHDC 0238
INFO RUCPDOC/DEPT OF COMMERCE WASHINGTON DC
RUEHGV/USMISSION GENEVA
RUEHGV/USMISSION USTR GENEVA

UNCLAS GENEVA 000136 
 
SIPDIS 
STATE FOR EEB/IPC, IO/HS, OES 
COMMERCE FOR USPTO 
 
E.O. 12958: N/A 
TAGS: ECON [Economic Conditions], 
KIPR [Intellectual Property Rights], 
WIPO [World Intellectual Property Organization] 
SUBJECT: Fourteenth Session of the WIPO Standing Committee on the Law 
of Patents 
 
¶1. The World Intellectual Property Organization's Standing 
Committee on the Law of Patents (WIPO SCP) continued to discuss 
preliminary studies requested by the SCP in June 2008 and March 
2009, and commenced a discussion on Brazil's proposal concerning 
exceptions and limitations to patent rights.  However, an impasse 
resulted at the SCP on the future work of the committee.  As a 
result, the agenda from this session will be used for the next 
meeting in October 2010.  During two days worth of negotiations on 
the future work topic, it became clear that Member States fail to 
see eye to eye on the international patent system itself, as some 
view the system to be a threat to development and oppose any global 
efforts - whether normative or cooperative technical assistance 
work -- in improving the patent system.  END SUMMARY. 
 
¶2. The WIPO SCP met from January 25-29, 2010.  Delegations from 103 
countries, 10 international organizations and 28 non-governmental 
organizations participated in the Committee which was chaired by 
Mr. Maximiliano Santa Cruz from Chile.  The United States 
delegation was represented by USPTO External Affairs Administrator 
Arti Rai, Charles Eloshway of USPTO, Janet Speck, Deputy Director, 
State Department and Deborah Lashley-Johnson, IP Attach???? at the 
U.S. Mission to the UN. 
 
¶3. Discussions were based on preliminary studies written by the 
International Bureau at WIPO concerning the relationship of 
standards and patents, client-attorney privilege, dissemination of 
patent information, transfer of technology, and opposition systems. 
Many delegations stated that these documents constituted a good 
basis for discussions, and requested further clarifications on 
various issues contained in the documents.  However, certain 
statements made by developing countries and NGO were worrisome, 
such as: equating work on the client-attorney disclosure problem to 
patent law harmonization work; viewing the topic of dissemination 
of patent information to include the disclosure of proprietary 
information and trade secrets; and stating that a study should 
include how the patent system hinders technology transfer. 
 
¶4. The topic of limitations and exceptions was also discussed, 
although the external experts' study was not available for this 
meeting.  A proposal in respect of exceptions and limitations to 
patent rights was submitted by the Delegation of Brazil, which 
received support by many developing countries.  The proposal has 
three phases:  discussion on national experiences on patent right 
exceptions and limitations; focus work on exceptions and 
limitations that help to address developmental concerns; and the 
development of an exceptions and limitations manual.  Other 
delegations, such as the U.S., Switzerland and other industrialized 
countries expressed concern that they had not received the document 
in advance of the meeting, and therefore had insufficient time to 
consider the proposal, and expressed a wish to consider the 
proposal at the following session in October 2010 when the external 
expert study would also be presented.  Nonetheless, the U.S. noted 
that it was interested in studying the issue more and saw strong 
intellectual property rights and enforcement to be consistent with 
proper, basic limitations and exceptions. 
 
¶5.  Gridlock, however, occurred once the committee moved onto the 
topic of future work.  Several regional coordinators and interested 
Member States negotiated informally a compromise work program that 
ensured balanced and focused work for the SCP.  The proposed work 
program included:  1. further study on technology transfer 
concerning the relationship of patent technology transfer and 
innovation; 2. work on limitations and exceptions that included the 
external expert study and Brazil's work program proposal; 3. patent 
administration issues that included work on patent quality 
management and further work on dissemination of patent information 
that looked at digitization issues and access to complete patent 
information; 4. further work on client-attorney privilege to 
solicit Member State input on national experiences; 5. future 
conference on public health and food security issues; and 6. 
reaffirming that the non-exhaustive list of issues for possible 
discussion by the SCP remain open for further elaboration at the 
next meeting, but agreeing that Member States would refrain from 
adding on to the list at this session, so as to ensure that work on 
the existing studies could be more focused.  These items were truly 
a compromise text, particularly for Group B, as our primary 
objective to discuss patent harmonization issues was not part of 
this list and many of the items had more of a developing country 
interest/slant.  On day one of our conversation concerning future 
work, we reached agreement among Group B countries, GRULAC, Eastern 
European countries, Singapore, Korea, the regional coordinator of 
Africa, Angola. 
 
¶6.  However, on day two, Angola, members of the Africa Group, such 
as Egypt and South Africa, Pakistan, India, Sri Lanka, Malaysia, 
 
 
Yemen, Iran and Indonesia, opposed the compromise text.  Their 
amendments suggested future studies on the negative impacts patents 
have on technology transfer and standards, and a new study on 
patents and public health.  There was also a proposal on the 
establishment of a technology transfer commission to focus on the 
problems of technology transfer.  Their proposal further lacked 
balance in their deletion of the only two issues offered by Group B 
in the initial compromise proposal concerning patent quality 
management and further work on client-attorney privilege.  The 
counter-proposal also included another large conference on patents 
and public policy issues as a follow up to the one held in July 
2009.  Lastly, they pushed to expand the non-exhaustive list to 
include topics such as the impact of the patent system on 
developing countries and LDCs, and the relationship of patents and 
food security. 
 
¶7. While Group B and the U.S. were disappointed that the agreement 
reached the day before did not satisfy all of the Africa Group and 
the Asia Group, we were willing to negotiate further from our 
compromise text.  However, it became clear that the Africa Group 
and some Asian Group countries were not willing to move from their 
position.  Group B in particular was willing to add on to the non 
exhaustive list with the inclusion of "work sharing" and the 
"strategic use of IP in business" as proposed by the Group of 
Eastern European Countries.  Despite developing countries' 
insistence that the non exhaustive list remain open, Indonesia and 
India opposed the Group B suggestion of "work sharing", arguing 
that it was duplicative of work at the PCT working group and that 
it was patent harmonization-related and therefore not welcomed by 
developing countries.  Further, even though Group B reminded these 
countries that their proposed suggestions on the list were 
duplicative of work occurring in the Committee on Development and 
IP (CDIP), Egypt's response was that development agenda work in 
CDIP was a cross-cutting issue throughout the Organization, and 
therefore duplication was needed. 
 
¶8. COMMENT: Group B member states expressed deep concern about the 
events that transpired at this meeting.  Several countries refused 
to negotiate from their maximalist positions, which has been a 
concern in other committees at WIPO.  The inflexibility of 
developing country positions will make reaching a compromise on any 
SCP work program impossible, particularly when this committee has 
had a history of disbanding for three years due to similar 
political impasses.  Further, it is clear that the development 
agenda is the only work these delegations are interested in at the 
expense of issues related to patent law that are important to Group 
B and their constituents.   Targeted demarches to the few countries 
that are blocking progress and preventing the SCP to function are 
being considered.  In addition, Group B will increase its 
coordination to advance its agenda on the various issues before the 
SCP, such as in the areas of technology transfer, limitation and 
exceptions, client-attorney privilege, opposition systems, and 
dissemination of patent information. END COMMENT. 
GRIFFITHS

Next, we are going to look at some EU positions on the subject.

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