Nations debating whether to harmonise national patent systems have turned their focus to developing country demands to include requirements that patent filers disclose the origin of genetic material and traditional knowledge.
The debate is taking place in a 10-12 April informal meeting of the World Intellectual Property Organization Standing Committee on the Law of Patents (SCP). This week’s informal meeting is tasked with preparing a work programme for the SCP, which is addressing proposals related to a Substantive Patent Law Treaty (SPLT).
Stepping into the centre of the debate on the second day were China and India, who met together with other groups. The two rising economies appeared to take a middle ground between two new proposals put forward today, arguing for at least the inclusion of disclosure requirements while maintaining an openness to discuss other ideas from both sides. At press time, the governments were still meeting.
Developed countries have opposed the inclusion of disclosure in the patent debate, and have suggested relegating disclosure issues to a separate WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC). India on 10 April suggested the two groups might conduct some joint meetings.
Countries such as the United Kingdom argue that the SCP is only about harmonisation, while other countries, particularly developing nations, see it as having a broader scope.
Developing Country Work Programme Proposal
Today, the Group of Friends of Development presented a “list of issues for the work programme of the SCP, taking into account the discussions of the open forum.” It contains nine issues of concern to developing countries in this debate.
The nine issues are: development and policy space for flexibilities, exclusions from patentability, exceptions to patent rights, anticompetitive practices, disclosure of origin, prior informed consent and benefit-sharing, effective mechanisms to challenge the validity of patents, sufficiency of disclosure, transfer of technology, and alternative models to promote innovation.
One source said this document was presented in response to India’s suggestion yesterday of joint meetings of the SCP and the IGC (IPW, WIPO, 10 April 2006). The issue was kept alive today, one source said, but there was political resistance as well as countries raising practical difficulties with such an arrangement.
Disclosure of origin of genetic resources in patent applications is an important issue for many developing countries, but they have pointed out that their concerns about harmonisation go beyond this. A number of developing countries took issue with India’s suggestion, saying that there were more issues than only disclosure that concerned them and thus should be reflected in a future work programme.
Developing countries are also interested in incorporating parts of the debate from an open forum of the SPLT, that took place on 1-3 March, in the work programme, sources said.
A joint SCP and IGC meeting likely would have to wait until July, one participant said, as the next IGC meeting is scheduled for late April.
Toward a Middle Ground?
India has clarified that only patent-related issues common to both committees would be discussed at the joint meeting, a source said, adding that non-patent-related issues such as traditional knowledge (at least in certain cases) would only be discussed in the IGC.
The United States and Japan have maintained that the work programme for the SCP should focus on only four issues: Definition of prior art, grace period, novelty and inventive step.
But China and India suggested combining these two lists, according to sources. China said that the US-Japan proposal could be combined with four issues from the Friends of Development list: exclusions from patentability, disclosure of origin, prior informed consent and benefit-sharing, effective mechanisms to challenge the validity of patents and sufficiency of disclosure.
India suggested the same but said that the three issues: transfer of technology, alternative models to promote innovation and anticompetitive practices could maybe go under the headlined “development and policy space for flexibilities,” thus reducing the list to six items.
Before these suggestions some developing countries seemed to have positioned themselves in between the Friends of Development group and the US-Japan proposal. Mexico lined up with the developed countries, saying that the work programme should be focused on these four issues as other developing-related issues are already being discussed in other WIPO forums, one source said.
A non-governmental organisation observer said that the debate on the work programme seemed to have moved from being technical to being more political.
Regional meetings were held throughout the day and the meeting resumed one hour too late after the lunch break because of this. But little seemed to be moving in the afternoon as one participant said that at one point when the chair said the floor was open, there was a 10-minute silence.
Hybrid Disclosure of Origin
Disclosure of origin debate will never end. It started in 1999 and no progress has been achieved so far.
To me, its objectives are unrealistic and can not be achieved. Both developing and developed countries need to stike a balance and agree on a hybrid of both voluntary and mandatory international instrument. Issues like disclosure in patent application and evidence of benefit sharing could be mandatory but we do not need to ensure that dsclosure of origin or PIC is incorporated in the instrument. This could be optional for special reasons because it could expose the TK holders to abuse and more biopiracy.
Fred Otswong’o
Kenya