WIPO STANDING COMMITTEE ON THE LAW OF PATENTS

UNCLAS SECTION 01 OF 02 GENEVA 001648

SIPDIS

SENSITIVE

E.O. 12958: N/A
TAGS: ECON KIPR WIPO
SUBJECT: WIPO STANDING COMMITTEE ON THE LAW OF PATENTS
(SCP) FAILS (AGAIN) TO ADOPT A WORK PLAN ON SUBSTANTIVE
PATENT LAW HARMONIZATION; FATE OF HARMONIZATION AT WIPO IN
DOUBT

SUMMARY


1. (U) The WIPO SCP met June 1 and 2, 2005, at WIPO
Headquarters in Geneva to once again discuss proposals for
moving work on substantive patent law harmonization forward.
No agreement was reached, thus calling into question whether
WIPO is the appropriate venue for achieving harmonization.
END SUMMARY.

INTRODUCTION


2. (U) The WIPO SCP convened for its eleventh session on
June 1 and 2, 2005, at WIPO Headquarters in Geneva. The
meeting was chaired by Boris Simonov of the Russian
Federation. Representing the Secretariat was WIPO Deputy
Director General Francis Gurry, filling in for the curiously
absent Director General, Dr. Kamil Idris. The central focus
of the limited agenda for the meeting was the discussion of
the future work of the SCP.

BACKGROUND


3. (U) Since its inception in 2000, the SCP has been meeting
to discuss the technical details of a draft Substantive
Patent Law Treaty (SPLT). Over the past two years, however,
the discussions have deteriorated due to disputes between
developing and developed countries over the best way to
proceed with the discussions. The two competing schools of
thought on this issue are represented by a group of
developing countries led by Brazil, Argentina and India, who
argue that the entire draft treaty as a whole must be
considered to take account of the interests of all, and a
group consisting of the United States, Japan and other
developed country members of WIPO Group B, who believe the
discussions should concentrate on a scaled-down first package
of draft provisions related to four prior art issues*the
definition of prior art, grace period, novelty and
non-obviousness/inventive step.


4. (U) In an effort to reinvigorate the stalled patent law
harmonization talks, the United States and Japan co-sponsored
a proposal for the 2004 WIPO General Assembly meeting asking
the General Assembly to adopt the &first package8 as the
work plan for the SCP. The proposal noted the inefficiency
of discussing the treaty as a whole, given the sharp
divisions that had developed over certain issues, namely
patentable subject matter and disclosure of traditional
knowledge and genetic resources, and suggested that the work
of the SCP should be refocused to a smaller set of issues
that were ripe for near-term agreement. The proposal noted
that harmonization of prior art standards would help reduce
duplication of work by national offices, improve patent
quality, and allow users to better predict the results of
examination from office to office around the world. That
proposal was rejected, mainly due to the efforts of a group,
led by Brazil and Argentina, calling themselves the friends
of development that argued the entirety of the draft treaty
documents need to be discussed so that issues of importance
to developing countries could be addressed, notwithstanding
that many of these delegations had previously argued that the
existing treaty documents would result in unacceptably broad
harmonization. The General Assembly did, however, agree that
the future date of the next SCP meeting would be determined
on the basis of consultations the WIPO Director General may
undertake.


5. (U) Pursuant to the General Assembly decision, the
Director General convened an informal consultation in
Casablanca, Morocco in February 2005. Although the various
WIPO member state interests were represented at the
Casablanca meeting, not all member states were invited. The
meeting was chaired by India and presided over by the
Director General. The meeting produced a proposed work plan
to address the various concerns that had been impeding
progress on harmonization. The proposal recommended that the
SCP take up work on the &first package agenda, i.e., the
four prior art issues, and that the WIPO Intergovernmental
Committee on Intellectual Property and Genetic Resources,
Traditional Knowledge and Folklore should discuss issues
related to genetic resources and sufficiency of the patent
disclosure in parallel, accelerated processes in each body.


6. (U) This work plan was agreed to by all present except
the delegate from Brazil. In various press releases and
statements following the meeting, Brazil criticized the
process as unfair, particularly noting that not all
developing countries were represented. The criticism also
eventually led India to back away from its chairman,s
support of the Casablanca proposal.

11th SESSION OF THE SCP

7. (U) The Casablanca work plan was the central item on the
June 2005 SCP agenda, along with a proposal from Brazil,
Argentina, India and others, which argued that the SCP should
continue discussing the draft SPLT as a whole, but also that
the SPLT should include provisions on transfer of technology,
anti-competitive practices, safeguarding of public interest
flexibilities and specific clauses on principles and
objectives.

8. (SBU) It was clear from the opening few interventions at
the start of the meeting that the discussions would be
difficult. Argentina led off with a statement from its
ambassador, stating its commitment to cooperation &as may be
necessary, but emphasizing its view that the Casablanca
process was unbalanced and not representative of all views.
(Note: The participation of Argentina,s ambassador at the
SCP, which is a specialized technical body of WIPO, is
indicative of how politicized and how detached from its core
technical mission the work of the SCP has become) Argentina
continued by stating that the &developing8 countries were
not demandeurs on the SPLT, but had participated
constructively, and noted that the Casablanca proposal was
unacceptable because it was too rigid with respect to TRIPS
flexibilities. India, Brazil, Egypt and Chile supported the
intervention by Argentina. (Note: India,s ambassador led
India,s delegation on day one of the meeting, again
illustrating the politicized nature of the discussions).


9. (U) Italy, on behalf of Group B, voiced support for the
Casablanca approach, and was supported by Sudan, Morocco and
a number of NGOs. Switzerland proposed that all six items
identified in the Casablanca approach be developed in the
respective bodies so that all six can be presented at once to
a diplomatic conference at an appropriate time. This
proposal, however, did not receive support. In addition,
Pakistan proposed that before proceeding further on
harmonization, the SCP should investigate its potential
impact and suggested that the WIPO IB and UNCTAD produce a
joint study of the effects of IPR standards on development.
Australia supported the concept of an impact analysis, but
noted that the SCP should maintain its focus on the law of
patents, not the law of all things. India also supported the
concept, but as part of the overall development agenda, not
as part of the SCP discussions. The United States noted
serious misgivings concerning transparency and inclusiveness
of such a study and suggested that individual member states
were better situated to make a decision on potential impact.


10. (U) The remainder of day one was devoted to different
delegations, including NGOs, expressing different views on
how to proceed. At the end of the day, the Chairman noted
the divergent views, the various proposals put forward and
suggested that the SCP should endeavor to provide a pragmatic
recommendation for the General Assembly.


11. (U) Day two of the meeting was supposed to be a simple
exercise in adopting the two-page draft Chairman,s Summary,
but quickly turned into a lengthy exercise in parsing
language, led again by Brazil, Argentina and India. There
were lengthy discourses on how five short paragraphs, which
did not say a great deal to begin with, should be arranged so
as not to give false or misleading impressions about one
thing or another. The delegation of China, reflecting the
growing anger and exasperation of many delegations in the
room, finally intervened with a plea to either resolve the
issue or have no summary at all. What should have taken, in
terms of reasonable interventions and discourse, perhaps an
hour to resolve ended up taking an entire day finally being
resolved the next morning.


12. (SBU) The unnecessarily contentious Summary drafting
exercise was illustrative of the apparent bad will and
contentious nature that characterizes discussions in this
committee. It does not appear that differences will be
resolved soon. The United States has already initiated
discussions with interested parties outside WIPO and plans to
continue to pursue harmonization in that context to achieve
progress. While these discussions are being undertaken with
the hope, however small, of bringing work back to WIPO if
circumstances change, all options should remain open.
Moley