WIPO developments and upcoming meetings

8 December 2005
Thiru Balasubramaniam

Today the WIPO Secretariat is holding "Consultations on the Open Forum on the Draft Substantive Patent Law Treaty" with Member States in an effort to vet names and topics for this open forum to be held from March 1-3, 2006. According to sources close to the discusssion, Benoît Müller, Director of Software Policy Europe, Business Software Alliance has been nominated to speak on inter-operability issues. David Martin, an expert in domestic and international technology transfer and in patent enforcement and issuance and the founding CEO of M-CAM has been proposed to speak on the patent landscape.

Here are some excerpts of a speech David Martin gave in November 2004 on real economic consequences of the non-accountability of the patent establishment.

"Some of you are familiar with what I talk about when I mean the ethernet plug. That wonderful little thing that actually looks like a phone plug, just a few extra more little spiky things on them. There currently are 683 patents in force covering... the ethernet plug. Not the use of it, the plug.

That means every time any of you actually plugs that thing into the wall, there's an outside chance that you're actually infringing when you even plug your computer into the ethernet plug, much less to a goddamn thing with your ethernet once you get it hooked up.

You actually don't have a place to start. You can't plug a computer in without infringing a series of patents on plugging your computer in...

Our patent systems have sovereign immunity from any economic consequence and until that reform happens, Ladies and Gentlemen, we're rearranging deck chairs on the Titanic."
(http://wiki.ffii.org/ Martin041109En)

Here are the dates associated with the WIPO Standing Committee on Patents.

SCP Open Forum: March 1 to 3, 2006
Informal session of the SCP: April 10 to 12, 2006
Formal session of the SCP (if any): July 3 to 7, 2006

WIPO Provisional Committee on Proposals Related to a WIPO Development Agenda
The dates for the Provisional Committee Meetings on Proposals Related to a WIPO Development Agenda (PCDA) have been set. The dates for the first session are from February 20 to 24, 2006. The dates for the second session are from June 26 to 30 2006. The agenda for the first session of the WIPO PCDA can bee found at this site:
(http://www.wipo.int/meetings/en/doc_details.jsp?doc_id=53452).

WIPO Intergovernmental Committee on Genetic Resources, Traditional Knowledge and Folklore
The next meeting of the WIPO Intergovernmental Committee on Genetic Resources, Traditional Knowledge and Folklore will take place on April 24, 2006 to April 28, 2006.

WIPO Standing Committee on Copyright and Related Rights (SCCR)
The next meeting of the WIPO SCCR will meet from May 1, 2006 to May 5, 2006.

WIPO Advisory Committee on Enforcement (ACE)
The Third Session of the WIPO Advisory Committee on Enforcement (ACE) meets from May 15, 2006 to May 17, 2006.

WTO TRIPS Council meeting-Bad deal expected

Tuesday, 6 December 2005
Thiru Balasubramaniam

The WTO Council for TRIPS will meet today in Geneva at 3 PM. It is expected that WTO Members agree to "forward a proposal to the General Council containing the draft Decision on the Amendment and the text of the Statement to be read out" by the Chair of the General Council (Amina Mohammed) prior to the adoption of the Decision by the General Council.

Two significant developments demonstrating opposition to this initiative have emerged in the last two days. On Monday 5 December 2005, three Congressmen in the U.S. House of Representatives (Waxman, Brown and Allen) wrote a letter to USTR Ambassador Portman seeking immediate clarification on the "U.S. Government’s stance on access to generic medications at the forthcoming World Trade Organization Ministerial in Hong Kong." (http://lists.essential.org/pipermail/ip-health/2005-December/008776.html)

They noted that,

"[b]ecause of the potential threats to public health preparedness in developing countries and at home, we request clarification of the U.S. Government’s position on compulsory licensing for importation. Specifically, we would like to know why the U.S. reportedly wishes to make permanent a system that has been criticized as overly burdensome and has not yet been shown to be effective. In addition, we request an explanation of why the United States should foreclose the possibility of using the importation mechanism. We would like to know if it is the belief of the U.S. Trade Representative that the United States will be able to “opt back in” to the compulsory licensing for importation system if public health requires. If yes, we request a detailed explanation of the procedures that would have to be employed to permit the United States to do so."

The second development was that on Monday, 5 December 2005, 31 NGOs including Oxfam, Action Aid, Christian Aid, Health GAP, CPTech, Health Action International (Africa and Asia Pacific), Ecumenical Advocacy Alliance, Pharmaciens Sans Frontieres Comite International, Medecins sans Frontieres Access to Essential Medicines Campaign, Act Up Paris, Third World Network and scores of treatment access groups issued a public statement urging WTO delegates to reject a bad deal on medicines. (http://www.cptech.org/ip/wto/p6/ngos12032005.html)

The current set of documents that WTO Members will use to facilitate the adoption of a "permanent solution" amending Article 31 of the TRIPS Agreement include: (1) DRAFT ARTICLE 31BIS, (2) DRAFT ANNEX TO THE TRIPS AGREEMENT, (3) DRAFT APPENDIX TO THE ANNEX OF THE TRIPS AGREEMENT, (4) CHAIRMAN'S STATEMENT, (5) IMPLEMENTATION OF PARAGRAPH 11 OF THE GENERAL COUNCIL DECISION OF 30 AUGUST 2005 ON THE IMPLEMENTATION OF PARAGRAPH 6 OF THE DOHA DECLARATION ON THE TRIPS AGREEMENT AND PUBLIC HEALTH, (6) AMENDMENT OF THE TRIPS AGREEMENT, (7) ATTACHEMENT - PROTOCOL AMENDING THE TRIPS AGREEMENT and (8) CHOREOGRAPHY FOR ADOPTION OF THE DECISION ON THE AMENDMENT.

For an earlier version of Draft Article 31BIS and the Draft Annex to the TRIPS Agreement, please see: (http://lists.essential.org/pipermail/ip-health/2005-December/008757.html)

One significant change in the draft annex to the TRIPS Agreement is that the European Communities (EC) have made a change in footnote 3 which lists Members that will not use the system as importing Members. Basically all names of EC members have been deleted and replaced with "European Communities" (in brackets). This change although seemingly minor would have the effect of making the "opt-out" decision apply to the 10 new Member States of the European Union and it would seem to apply to future accession states such as Bulgaria (GNI per capita of $2740) and Romania (GNI per capita of $2920).

For an unofficial version of the choreography document please see:
http://lists.essential.org/pipermail/ip-health/2005-December/008774.html

Step 3 of the choreography document states,

"Representatives of the 11 partial opt-out Members would then make statements in the General regarding their intention to use the system as an importer only in situations of national emergency or other circumstances of extreme urgency. If they do not make such a statement, it would be expected that they would have sent a letter in advance to this effect."

Furthermore, this Choreography document would appear to prejudice any implications the intervention delivered by the Philippines (IP/C/M/41) at the TRIPS Council on 28 August 2003 where the Philippines expressed a broader understanding of the 30 August Decision than the narrow restrictive Chair's text. By accepting the current "Choreography" document as is, WTO Members would prejudice the 28 August 2003 intervention of the Philippines which greatly mitigated the restrictive scope of the Chair's Statement.

Status of TRIPS and Public Health negotiations

2 December 2005

The WTO General Council is holding informal consultations on TRIPS and public health on proposals to amend the TRIPS Agreement to permit the export of medicines produced under a compulsory licence to countries with insufficient or no manufacturing capacity. Currently negotiations have centered on a draft text presented by General Council Chair Ambassador Amina Mohammed of Kenya.

(http://lists.essential.org/pipermail/ip-health/2005-December/008757.html)

This draft text contains the entire August Decision barring the preamble and paragraph 11 of the Decision which contained the mandate to find a permanent solution. In the run-up to the Hong Kong Ministerial the United States has made clear that any permanent solution amending Article 31 of the TRIPS Agreement should contain a clear reference to the text of Chairman Carlos Pérez del Castillo's statement of 30 August 2003. Ambassador Castillo issued this statement to "comfort those who feared might be abused and undermine patent protection". The Chair's statement added more red tape to a deal already abounding in red tape.

It is understood now that the United States has dropped its insistence to a written reference to Charman Castillo's statement in a permanent solution to Article 31 of the TRIPS Agreement. In return for this "concession", it has come to our attention that the Chair's statement will be read out orally at the time of adoption of a permanent solution. The grim prediction from trade diplomats is that a deal based on Chair Amina Mohammed's draft text for a permanent solution amending Article 31 of the TRIPS Agreement will be reached this weekend. The feeling one gets is watching a train wreck in slow motion and feeling powerless to stop it.

According to the definition of an eligible importing Member provided in this draft text, "some Members will not use the system as importing Members". Footnote 3 lists these 23 Members which include: Australia, Austria, Belgium, Canada, Denmark, Finland, France, Germany, Greece, Iceland, Ireland, Italy, Japan, Luxembourg, the Netherlands, New Zealand, Norway, Portugal, Spain Sweden, Switzerland, the United Kingdom and the United States. There is controversy and ambiguity as to whether any of these 23 Members can opt back in.

In the European Communities non-paper circulated earlier, the European Communities did not specify their individual Member States opting out but rather listed the entire European Union as opting out.

This issue is addressed however in part by Chairman Castillo's statement which named 10 WTO Members which since have acceded to the European Union. However, it is still unclear whether the European Union will insist on its 10 new accession states as opting out of the solution.

As the recent avian flu and Tamiflu debate has shown, this policy is clearly misguided. The permanent solution will certainly not engender efforts to employ economies of scale.

Public health and development organizations have expressed serious concerns about locking Members into a permanent solution that has yet to work in practice. If a deal is concluded based on the text of Chair Amina Mohammed's proposal, one has to question whether WTO Members are serious about implementing the Doha Declaration's exhortation that TRIPS "can and should be interpreted and implemented in a manner supportive of WTO members' right to protect public health and, in particular, to promote access to medicines for all". One wonders why WTO Members are so enthusiastic to adopt a solution endorsed by Big Pharma and opposed by virtually every public health group working on this issue.