Cablegate: Fourteenth Session of the Wipo Standing Committee On the Law


DE RUEHGV #0136/01 0491710
R 181701Z FEB 10



E.O. 12958: N/A
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.

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