“A patent is a social product and has a social function”, stated India’s speaker to drive home the point of equitable access to healthcare at the recently concluded 20th Session of the WIPO Standing Committee on Patents (SCP) in Geneva. The SCP was created in 1998 to facilitate WIPO member states to discuss international development of patent law. All WIPO members are allowed to participate in the annually held sessions and NGOs can attend as observers and make “interventions”. The Third World Network and Médecins Sans Frontières International (MSF) are two prominent organizations which regularly make interventions at these sessions. This post has been constructed from comprehensive news reports published by the Third World Network.
The SCP in its initial days successfully negotiated the Patent Law Treaty which came into force in 2005. This treaty only related to formalities of patent law. After this treaty was concluded, another treaty- Substantive Patent Law Treaty (SPLT) was proposed by the SCP. The SPLT was aimed at harmonizing substantive issues of patent law. However, as negotiations continued there was a deepening rift between the goals and policies of developing and developed member states. This led to a disruption of the negotiations and the members decided to focus on fact-finding and not lead to harmonization. This was the concluding consensus in the 19th Session conducted last year.
What the 20th Session brought to the fore
The divide between the groups of developed, developing and least developed countries was evident in the straightforward exchanges between members on various agendas. The agendas included quality of patents, patents and health, confidentiality of communication between clients and patent advisors, technology transfer, exceptions and limitations to patent rights, deciding course of future work and several others. I will attempt to bring forth the most substantive points made by members on these agendas, and highlight the conflicts therein.
1. Improvisation of the Quality of Patents, including Opposition Systems
The developed countries support proposals to promote “work sharing” between patent offices to promote patent quality. Broadly, “work sharing” means improving exchange of patent information between nations’ patent offices. As this news report succinctly put it, “Work sharing is a term used to describe various bilateral and plurilateral arrangements between/among patent offices to assist countries to expedite the examination of applications and granting of patents. These arrangements include: use of search and examination results of other patent offices; accelerating the granting of a patent based on the decision of another patent office; collaboration between/among patent offices to jointly exam patent applications; various platforms and tools to share information on search and examination.”
Wheras the African Group drew attention to the lack of a precise definition of the term “quality of patent” and cited that as one of the reasons for the disparity in standards.
India said that patent offices cannot maintain the quality of patents without maintaining standards for examination and search, since it is important to not block technology dissemination by granting patents to incrementally insignificant inventions. It absolutely dismissed the proposal of “work sharing” stating that it shall only clog the national system.
I wonder why steps can’t be taken towards a more efficient Patent Office by incorporating both arrangements, since disclosure of foreign applications is already crucial to granting a patent in India. I sincerely think work sharing will benefit our search and examination system immensely. It will also benefit potential inventors and other stakeholders to have an efficient search system.
2. Patents and Health
The developing countries opposed the US’s counter-proposal (SCP/17/11) on the subject, citing that they should be allowed to adopt and adjust their patent systems in order to take full advantage of the flexibilities in the international patent system to promote their policies on public health. South Africa also referred to US’ counter-proposal on patents and health as “interesting”, because apparently a few elements were not related to patents at all, for instance “market commitments”, mentioning the Glaxco Smithkline malaria vaccine partnership and other public health initiatives by Big Pharma.
India argued in support of a need to optimally utilise compulsory licensing provisions, nip ever-greening of patents, and flexibility of the international patent system. It added that efforts must also shift towards studying the impact of grant of compulsory licenses and the consequential impact on prices of patented drugs, firmly standing by its pro-equitable healthcare patent regime, a regime the US has expressed its displeasure at.
Wheras in subtle defiance to the US, EU stated that efforts should be made to arrive at a patent system efficient enough to facilitate innovation to reduce the “global disease burden.”
3. Other Agendas
With regard to other agendas, the developing nations drew attention to extrinsic factors such as political pressure or profit driven Big Pharma trying to subvert the implementation of patent regime in South Africa, and lauded South Africa for ultimately going through its patent reform. Progress and discussion on issues like Technology Transfer and Exceptions and Limitations to patent rights either remained static or extremely nascent. The Exceptions and Limitations on patent rights relate to issues such as public health, education, research and experimentation and patentability of life-forms, including from a public policy, socio-economic development perspective, bearing in mind the level of economic development.
MSF urged WIPO to collaborate with WHO to implement the global strategy and plan of action on public health, innovation and intellectual property. It also encouraged members of developing countries to increase information sharing and technical support to one other in the context of patent law reform that promotes public health.
To view the Summary by the Chair on the Sessions, WIPO, click here.