Sep 23, 2009

Tightening the screws for a global patent control

While all attention is focused on the high-level climate summit convened by the United Nations Secretary General Ban Ki-Moon in New York, another patently important week of deliberations which has serious implications for the scientific and economic growth of the developing countries, perhaps more than the fallout from even the ongoing fashionable talks on climate change, began in Geneva on Sept 22. The General Assembly of the 'notorious' World Intellectual Property Organisation (WIPO), which is also being attended by 40 ministers from member countries, is pushing for harmonisation of the existing patent laws.

Why I called WIPO a 'notorious' organisation is simply because it unabashedly promotes the commercial interests of the multinational companies. The name WIPO is merely a camouflage to cover its unholy alliance with the industry. No wonder, you shouldn't be surprised to know that WIPO is actually pushing for a proposal, which if accepted, would ensure that whichever patent is passed by three countries becomes an international patent. In my understanding, this proposal if accepted, would be more damaging to the developing countries than all the fake promises of reduction in greenhouse gas emissions. Its deadly implications have been discussed below.

K M Gopakumar of the Third World Network is attending the WIPO General Assembly in Geneva. I requested him to send me a brief overview on what is likely to be discussed in the days to come. I am glad he could find time to send me a small note, which I am sharing with you. I will try to ensure that I keep you abreast of the latest developments at WIPO as we go along.

Here is the report from K M Gopakumar:

The World Intellectual Property Organisation (WIPO) is one of the most controversial international organisations today. WIPO has been often accused of furthering the interest of Multinational Corporations (MNC) and their developed country hosts at the cost of developing countries. WIPO’s technical assistance programmes are subjected to criticism for advocating and promoting intellectual property rights without regard for the level of economic development of a country which is seeking its support for technical assistance. Public interest groups and academicians criticised WIPO for advocating the ideology that high level of intellectual property protection is a necessary condition for the economic growth. The latest developments within WIPO especially with regard to the Patent Cooperation Treaty (PCT) once again puts WIPO in a tight spot. The General Assembly of WIPO from 22nd September to 1st of October 2009 is going to be used by the developed countries and WIPO to push the harmonisation of patent law in the name of reforming PCT and the global IP infrastructure.

The conclusion of the TRIPS Agreement took away the policy space of the developing countries with regard to the subject matter of patent protection and the measures against abuse of patent monopoly. However, the minimum standard of patent protection under TRIPS does not take away the whole policy space to determine the patentability criteria in each technology area like pharmaceuticals, biotechnology. For instance, the TRIPS Agreement creates legal obligation for the compulsory product patent protection for pharmaceuticals and agrochemicals. But this obligation does not mean that TRIPS member countries cannot determine the patentability standards for pharmaceuticals. Using this limited policy space, countries like India refuse to grant product patents on new use of known pharmaceutical substance or agrochemicals. IP maximalists want to eliminate this limited policy space available to developing countries through various tactics including Free Trade Agreements and other multilateral organisations especially WIPO.

After 5 years of TRIPS, in 2000 WIPO introduced its ambitious plan to further harmonise the international patent law to introduce a single patent law and procedure throughout the world. WIPO launched its infamous negotiations on Substantive Patent Law Treaty (SPLT), which was aimed at harmonising the substantive patent law standards viz., definition of invention, patentability criteria, etc. This would have ipso facto created a regime for global patents. The SPLT negotiation was stopped due to the opposition from the developing countries. The new initiative is to harmonise the patent law without harmonising the substantive patent law, which is difficult to achieve. The new initiative to reform the PCT mechanism seeks to grant patents based on a positive examination report from 3 patent offices which will be treated as automatic grant of patent in all other PCT member countries.

Currently, with a membership of 141 countries, PCT facilitates filing of patent application in a single office - either the national patent office or the International Bureau at the WIPO - and ensure their priority in all the member countries without filing separate applications. This single application later enters into a national phase and it is treated as any other patent application. It used to take normally 20 months from the date of filing and entry into the national phase. As a result of the first phase of the PCT reforms the time period for the entry of national phase is now 30 months from the date of filing for all PCT member countries except a few countries who made reservation to that effect. The application under PCT will be published only after 18 months from the date of publication after the issuance of international search report conducted by certain national and regional patents designated International Search Authority (ISA). After the obtainment of the ISR the applicant can further delay entry into national phase for another one year by requesting for an international preliminary examination report. However, there is no binding effect of these international search or examination report on the national patent offices. As a result the PCT application at the national phase will be treated like any other patent application filed in a country.

After the first phase of the PCT reforms, the ISA currently provides a written opinion on patentability based on the application along with international search report. Based on this WIPO issues an International preliminary Report on Patentability ( IPRP). However, the proposed changes in the second phase of the PCT reforms are altering the basic characteristics of the PCT. The most controversial suggestion is in the WIPO Secretariat document called the future of PCT. This suggests a pilot model in which examiners of three different patent examiners work together on a single application to produce a single report. It further says that if three offices are satisfied with the search and examination report other offices should accept the examination report. Further the road map also suggests the elimination of various reservations made to PCT. This proposal, if accepted, would virtually eliminate the flexibilities enjoyed by the developing countries in deciding the patentability criteria. It will be an indirect route to introduce global patents, a long time demand of MNCs.

Apart form the PCT reforms WIPO General Assembly is going to discuss the future of Intergovernmental Committee on Genetic Resources, Traditional Knowledge and Folklore (IGC). Most of the developing countries especially African countries want a legally binding outcome from the IGC rather than mere talk show. As expected developed countries do not agree for a legally binding outcome from IGC. Hence the demand for a legally binding treaty would dominate the discussion on the extension of IGC .

For the first time WIPO General Assembly is starting with a high level segment of more than 40 Ministers from the member countries. This is viewed as an attempt to garner political support for IP reform agenda including the PCT reforms in order to bypass the opposition from the developing country diplomats.

No comments: