People's Democracy

DELIBERATIONS ON PATENT HARMONISATION IN WIPO

Govt Needs To Clarify Its Stand

 A D Dinakar

THE harmonisation of patent law and procedures is one of the most controversial subjects under negotiations in the World Intellectual Property Organisation (WIPO). Positions among member states continue to differ, particularly along North-South lines. Driven by the narrow patenting interests of global flagship firms the governments of US and other developed countries are now keen to push the developing countries towards complete harmonisation in the law of patents. Particularly, after having got the developing countries to successfully implement the Trade Related Intellectual Property Rights Agreement (TRIPS), the US and other developed countries are quite emboldened to direct their guns through the Substantive Patent Law Treaty (SPLT), which has been under consideration for more than a decade in the WIPO.

SPLT harmonised standards would leave little room for the countries to adapt their patent laws to local conditions and need, a key condition for patents to act as tool for development. In the SPLT, the aim of US and other developed countries is to take away even the existing TRIPS flexibilities, such as those contained in Article 27.2 and Article 27.3 of the TRIPS Agreement through the exceptions provided to patentability for plants, animals and inventions taking the form of diagnostic, therapeutic or surgical treatments for humans or animals. The developed countries are also opposed to the inclusion of public interest exceptions relating to public health, nutrition and the environment. They are resisting including the language that would require patent applicants to disclose the origin of genetic resources and traditional knowledge used in claimed inventions. The above provisions and measures are considered essential by the developing countries to ensure a balanced treaty.

The US and other developed countries are determined to push forward the process of SPLT to achieve standards for patent harmonisation that are closer to their own standards. The Standing Committee on the Law of Patents (SCP) has been discussing this subject since May 2001, but the earlier sessions of the SCP were characterised by an asymmetrical participation of developing countries. Starting with the Ninth Session (May 2003), a number of developing countries have actively participated in the SCP negotiations and made various proposals. Faced with opposition from the developing countries, the US and other developed countries are trying out various ways to accelerate the process in their own favour.

A NEW FRAMEWORK

In May 2004, the US and other developed countries had put forth a new framework for patent law harmonisation. It comprised an initial package of priority issues followed by negotiations on other issues at a later stage.  The Trilateral proposal made by the US, Japan and the European Patent Office, which was introduced at the SPLT meeting in May 2004 by Japan, drives the negotiations towards getting the developing countries to agree to harmonisation of these priority issues covering definition of prior art, grace period, novelty and inventive step.

By cutting down the number of provisions to be adopted in the treaty the developed countries are trying to suggest that they are being quite ‘reasonable’ with the developing countries. However, the view of developing countries is justifiably that it does not take away the development concerns raised by harmonisation. By introducing new standards in areas that are not addressed by the TRIPS Agreement, the SPLT will inevitably lead to loss of sovereign flexibility on covered issues. Particularly, when the developed countries are determined to leave out of the SPLT all those articles that could offer an opportunity for balancing the rights of patentees and the public interest or preserving policy flexibilities. These articles are sought to be removed by dismissing them as “controversial”. The opposition of the developing countries has been growing against the move to separate the issues under consideration in WIPO into two sets. They made this quite clear in the last meeting of the WIPO General Assembly. Developing countries opposed delegating the matter to the General Assembly on the basis that, since the SCP was not created to discuss the SPLT, but rather it was the SCP on its motion that took on such a negotiation, any decisions on how to proceed or even on whether to abandon the SPLT were up to the SCP itself.

MEETING HELD IN CASABLANCA

In order to tackle those developing countries that are quite opposed to this new approach of the developed world towards patent harmonisation, the US and other developed countries have been vigorously trying to find a new way out for themselves in the ongoing WIPO negotiations on SPLT. This year they launched, under the aegis of WIPO itself, the track of informal consultations where selective participants were invited to create consensus for the benefit of developed world. At the invitation of WIPO Director General Kamal Idris, selected WIPO members met in Casablanca, Morocco on February 15-16, 2005 to discuss the continuation of the global patent harmonisation process.

During the consultations, the approximately 20 countries and patent offices in attendance came up with an action plan for moving forward on patent harmonisation process’ identifying six issues to be dealt with in an accelerated manner: prior art, grace period, novelty, inventive step, sufficiency of disclosure, and genetic resources. The statement adopted at the end of informal consultations reports that the meeting agreed that these issues should be addressed in parallel accelerated processes, the first four issues in the SCP and the latter two issues in the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC). For the sake of form the meeting did make mention of the need to pursue a “robust, effective and actionable WIPO Development Agenda”. The recommendations that emerged clearly resembled an earlier proposal by the “trilateral” group of the EU, Japan and the United States.

As the Casablanca meeting had been chaired by Dr R A Mashelkar, Director General of the Council of Scientific and Industrial Research of India, this gave rise to questions as to whether the Indian government officially endorsed the outcome of the Casablanca meeting. Brazil was the only country to register opposition to the statement adopted at the end of the meeting. It is important to note that Brazil was the only country among the 14 proponents of a “WIPO Development Agenda” invited to the event, suggesting that this may have been an attempt to make support for the development agenda appear to be an isolated point of view. The other developing countries representatives in attendance were from countries that have been passive in WIPO debates on the development agenda, or from states that are already committed by bilateral or regional trade agreements to intellectual property standards that go beyond those required by the WTO, such as Chile and Morocco. Many developing countries – most of which were not invited – have been obviously critical of the meeting. They argue that although the last meeting of the WIPO General Assembly gave the Director General the mandate to hold informal consultations on patent harmonisation, but the nature and process of the consultations has exceeded the mandate’s original purpose. They point out that the meeting’s lack of transparency and disproportional representation call into question the legitimacy of the resulting course of action as a roadmap for the WIPO General Assembly to move forward on patent harmonisation.

THE DEVELOPING WORLD IS BETRAYED

What is puzzling about this meeting to the observers of patent debate that why did India not take a firm stand along with Brazil. This question has arisen because India was invited to the Casablanca consultations. From the list of participants mentioned in the statement adopted by the participants at the end of informal consultations it is clear that India was a full- fledged participant in the meeting. India has been a leading participant arguing the case for development and developing countries’ interests at WIPO meeting. But the fact of the matter is that India did not side with Brazil and chose to go along with the decisions forced by the developed world regarding the future program of work in the WIPO. The role played by the Director General of the Council of Scientific and Industrial Research and Secretary of the Department of Scientific and Industrial Research in India who was in the chair in the meeting explains much of this puzzle.

Needless to say, by siding with the developed world in the Casablanca meeting, its representatives created a serious doubt about the Indian stand on SPLT. Its intentions were bound to become suspect in the eyes of the 14-member ‘Group of Friends of Development”. In the month of March when this important developing country group met it offered tempered criticism of the invite-only consultation. Faced with a heavy criticism of the reaction to the outcome of Casablanca consultations from the side of his important developing country group, the Indian delegation in Geneva chose to take up the issue of the role played by Dr R A Mashelkar.  On April 5, the Government of India was forced to clarify to WIPO that “India does not support the recommendations made by the Casablanca consultations, which would have the effect of separating the issues by placing them on two different tracks”. India also clarified to WIPO that Dr Mashelkar participated in his individual capacity. Until India’s announcement on April 5, there had been ambiguity over its position since the Casablanca consultation was chaired by Dr R A Mashelkar. India also clarified that in the SPLT talks, which are taking place in the SCP, a “holistic approach be adopted” and that all issues be tackled “within a single negotiating framework’.

THE BIG PUZZLE

But what remains still a big puzzle is that how come a key government official who has been holding important positions in both national and international committees that are dealing with the issues relating to patent law and development of the sectors pertaining to pharmaceuticals, seeds, biotechnology and other high technology areas related issues can be taking a totally divergent stand on an issue where North-South lines are so clearly drawn. The question that the observers of patent scene are asking is that why was Dr Mashelkar made the chair of the Casablanca session? It is obvious that the viewpoints he keeps expressing at the public forums on the patent law related issues in “his individual capacity” has endeared him to the developed world bodies from whom he also keeps regularly receiving honours, awards and contracts.

Is it not a matter of concern for the UPA government that even after his disastrous performance at the Casablanca meeting and continuing close liaison with the agencies of developed world this official is being allowed to hold crucial positions in the government S&T department as a secretary and as DGCSIR? Why is the government of India continuing to entrust the patent issues and other related policy issues concerning the development of new technology areas to an official who does not put forth the government position in international fora? Why has the government of India chosen him to chair the Expert Group to recommend on the pending legislative issues arising out of the process of deliberations on the third patent amendment act concerning the definition of pharmaceutical substance and the determination of patentability in respect of microorganisms?

The continuation of such an official in the patent and technology related committees is making the observers of patent scene to doubt the real stand and intentions of the Indian government on the patent related issues. These observers are concerned as a result about the commitment India has to the development agenda within the negotiations on patents related issues. They do not anymore trust India; it is the sincerity of Indian government that becomes suspect and in doubt within the developing world. Till now this official was under cloud because he had chosen to attend the RSS camp and support unscientific projects relating to the development of work exclusively on cow urine as a bio-enhancer for the drugs when the NDA government was in power but now he is also directly harming the crucial national interest of retaining sovereign flexibilities in respect of patent and technology related issues.

The UPA government owes to the people of India an urgent and clear explanation on the above raised issues.