Tuesday, February 28, 2006

WIPO Open Forum on the draft Substantative Patent Law Treaty (SPLT)

Wednesday, 1 March 2006
Thiru Balasubramaniam
Morning Session of the WIPO Open Forum on the draft Substantative Patent Law Treaty (SPLT)
Background and Summary of Sir John Sulston's address

The WIPO General Assembly of 2005 mandated WIPO (WO/GA/32/13) to hold an informal open forum on
all issues that have been raised in the draft of the SPLT or that Member States wish to include in the draft SPLT. The forum will be of a duration of three days. The various issues will be discussed with contributions from speakers reflecting a balance of geographical representation and perspectives, and technical expertise.

As mentioned in my previous post the agenda is the result of a consultative process held between WIPO Member States and the WIPO Secretariat.

The three day meeting is thematically divided into 5 broad topics: Theme 1-Harmonization of Substantive Patent Law: Purpose, Approaches and Limits, Theme II-Subjects of Patent Law Proposed for Harmonization, Theme III-Patents as a Source of Information and Innovation, Transfer of Technology and Licensing Practices, Theme IV-New Technologies and their Specificities and Theme V-The Interface of the Patent System with Other Areas of Public Policy.

The morning commenced with an excellent overview by Sir John Sulston (Vice-Chair, Human Genetics Commission, London-Nobel Prize in Physiology or Medicine in 2002), entitled "International Patent Law Harmonization, Development and Policy Space for Flexibility". He briefly touched upon his background as a biochemist, a user of knowledge in research. His experience in the human genome project highlighted tensions between the public and private sectors "over whether the human genome sequence should be freely released".

Sir Sulston noted that while
[p]eople need a robust system for handling intellectual property, and world harmonisation of IP is extremely desirable. Removing diversity is good for the majority of those seeking patents, by simplifying the process and avoiding duplication in the work of patent offices, so IP professionals will rightly press the case to do so. But it may not be so good for the rest of us, the ultimate users of the results, and may not be good for all patent holders equally. Precisely because the world is diverse, we are not yet in a position to agree easily on the details of the ideal system. Solutions need to be effective overall, not just for the few. We need to seek balances between sometimes conflicting pressures: between developed and less developed countries, discovery and exploitation in science, private and public, free release and monopoly.

Sir Sulston cited two examples in the difficulties faced by countries with respect to the upward ratcheting of IP regimes. He noted the 1996 European database directive which had been demonstrated to be ineffective, and in some instances counterproductive in encouraging the European database industry. Despite the evidence however, the legislation has not been removed because of the commercial interests of the database industry.

He also noted the example of the opposition expressed by the US Council of Economic Advisers and the Office of Science and Technology to the TRIPS Agreement during the Uruguay Round negotiations. Sir Sulston highlighted that the patent system should exist in balance with other forms of innovation. He cautioned against simplistic causality when affirming the benefits of the patent system by showing parallelism between an increase in patent applications and increasing prosperity. He noted,
One can equally point to parallelisms between obesity and prosperity, or between global warming and prosperity. But nobody suggests that obesity or global warming are causes of prosperity - they are unwanted by-products. Undoubtedly, robust patents have an important part to play, but we should be cautious in giving them too much credit for industrial success. This is especially true in the context of world harmonisation. In general, the developing countries that have shown the fastest growth are those that retained relatively protected markets until they reached a position of strength. The same was, of course, the case for Europe and the US a century ago. Regrettably, harmonisation is a way for those who have already arrived at a prosperous situation to pull up the ladder and stop others joining them.

Sir Sulston noted that given the imperfections of the patent system, harmonisation should not be the first priority for WIPO Member States-especially developing countries. First more efforts are needed to implement TRIPS safeguards. He noted that harmonisation should be pursued gradually and piecemeal.

He welcomed two important themes underway at WIPO: (1) the Development Agenda and the (2) Chilean proposal to appraise the public domain. In this context he mentioned proposed instruments for handling intellectual property including (1) the General Public Licence of the Free Software Foundation, (2) CAMBIA's Biological Innovation for an Open Society (BIOS) open licences adapted for patent technologies in the life sciences, (3) Creative Commons, and (4) the WHO resolution submitted by Kenya and Brazil which "proposes better methods for handling IP in biomedical research and development".

Sir Sulston issued a caveat concerning WIPO's role in the discussion of complementary systems to IP. He cited US and EU efforts to negotiate bilateral agreements and free trade areas in lieu of the international trading system. He noted that the
irony is that these so-called free trade areas are a return to old systems of most favoured nations- and indeed imperialism. It's a disturbing development, and needs a collective response.....Harmonisation but not equalisation is desirable. We need a substantive IP system, but simply heading uncritically down a road of more and stronger exclusivity is wrong for many of us: wrong for science, wrong for many small businesses, wrong for reducing the poverty gap. Wrong indeed for our very survival - for injustice breeds discontent wherever it comes from.