WIPO to convene meetings on ‘development agenda’

As a result of a bold initiative led by Brazil and Argentina at the organisation’s General Assembly in October, the World Intellectual Property Organisation has decided to convene meetings to examine proposals to establish a ‘development agenda’ to guide the organisation in all its activities.

Martin Khor

THE General Assembly of the World Intellectual Property Organisation adopted on 4 October a decision welcoming the initiative for a ‘development agenda’ in WIPO and to convene meetings to examine the proposals submitted on this matter by developing countries.

The inter-sessional intergovernmental meetings will prepare a report by 30 July 2005 for the consideration of the next General Assembly in September 2005.

WIPO’s International Bureau shall also undertake immediate arrangements to organise with other multilateral organisations (including the UN Conference on Trade and Development (UNCTAD), World Health Organisation (WHO) and UN Industrial Development Organisation (UNIDO) and the World Trade Organisation (WTO)) a joint international seminar on Intellectual Property and Development, open to all stakeholders including non-governmental organisations (NGOs), civil society and academia.

The decision represents a successful attempt by developing countries to initiate a process to establish a development agenda in WIPO. On 30 September, Brazil and Argentina had introduced a formal proposal (document WO/GA/31/11) for the establishment of a development agenda, in which the development dimension would be established in the work and in all bodies of the organisation. (For details of the proposal, see ‘”No!” to “TRIPS-plus” IP standards’ in this issue.)

The proposal was co-sponsored by Bolivia, Cuba, Dominican Republic, Ecuador, Egypt, Iran, Kenya, Sierra Leone, South Africa, Tanzania and Venezuela. The proposal and an accompanying decision for a workplan was supported from the floor on 4 October by the Asian and African Groups and by many individual developing countries.

After informal meetings on 1-2 October, a draft decision was agreed to. The original Brazil- and Argentina-led proposal to set up a working group was dropped in favour of the holding of inter-sessional meetings. These will be open to all member states and accredited NGOs, to examine the proposals in the Brazil-Argentina-led document as well as additional proposals of member states.

It was not stated when the meetings will be held or how often. However, the first meeting is expected early next year.

The chapeau to the decision recalled that the relationship between development and intellectual property has continuously been raised in several multilateral fora, took into account WIPO’s activities in the area of development, and bore in mind the internationally agreed development goals (including those in the UN Millennium Declaration, Programme of Action for the Least Developed Countries for the Decade 2001-2010, the Monterrey Consensus, Johannesburg Declaration on Sustainable Development, the Declaration of Principles and Plan of Action of the World Summit on the Information Society and UNCTAD XI’s Sao Paulo Consensus).

‘Small but positive step’

After the adoption of the decision, Brazil expressed gratitude to all the other member states for creating a positive and constructive environment in which the discussion was held. ‘Our document had proposals for action.  We would have liked them to be adopted but this was not possible.

‘We believe that the decision taken by all present is that we will hold a number of intergovernmental meetings to discuss the proposals in the document.  It is a small but positive step for WIPO, for which we are very grateful.’

Canada (which coordinates Group B of developed countries) said the decision faithfully reflects its views and it was happy to support the adoption.

Substantive patent law

The General Assembly also decided that no consensus could be reached on a Japan-United States proposal for a new workplan for the standing committee on the law of patents (SCP).

The proposal (in document WO/GA/31/10) was that the SCP revise its approach and take on a limited agenda of an ‘initial package of priority items’ with a view to ‘concluding a more limited substantive patent law treaty as soon as possible’. The ‘initial package’ would comprise four prior-art-related issues: definition of prior art, grace period, novelty and non-obviousness/inventive step.

A draft decision put forward by the Assembly President said the SCP should concentrate its work on the four items with a view to convening a diplomatic conference to conclude a treaty on those items on dates to be decided by the next General Assembly in 2005; and that the SCP should continue work on all other matters considered in previous SCP sessions with a view to convening a diplomatic conference to conclude a treaty on these matters when discussions on them had reached a sufficiently advanced stage.

This two-stage approach was opposed by many developing countries, which saw it as an attempt by the US and Japan to have the SCP focus only on issues that would be to the benefit of the developed countries - harmonisation of patent laws in areas relating to prior art - and to establish a substantive patent law treaty (SPLT) covering only these issues.

The developing countries had also introduced issues of interest to them in the SCP, in particular the need for a provision in patent laws on the disclosure by patent applicants of the source of origin of genetic resources and traditional knowledge, and issues relating to exceptions and limitations in patent laws.

They saw the Japan-US proposal as an attempt to highlight issues that benefit the developed countries, whilst sidelining issues of importance to the developing countries.  To proceed along these lines would lead to extremely imbalanced results, which would be made worse if they were to be enshrined in an imbalanced SPLT.

With the US and Japan insisting on their proposal and the developing countries opposed, there was no agreement during the informal meetings on 2 October on how the work of the SCP should proceed.

Thus, the decision was adopted on 4 October that no consensus has been reached on the Japan-US proposal, and that the dates of the next SCP ‘should be determined by the Director General following informal consultations that he may undertake’.

Sources said the US appeared to be upset by the inability of its proposal to make headway, and it indicated it may lose some interest in the SCP’s work.  Perhaps it may seek to bring its agenda to other fora, said an expert following the negotiations.

Biodiversity issues

The General Assembly also adopted a decision relating to how WIPO should respond to an invitation by the contracting parties of the Convention on Biological Diversity (CBD) to examine and address issues regarding the interrelation of access to genetic resources and disclosure requirements in applications for intellectual property rights, and to provide reports on this work to the CBD.

The Assembly decided that WIPO should respond positively and that the following modalities would be adopted: WIPO members are to submit proposals before 15 December 2004; a first draft will be prepared by the International Bureau and published on the WIPO website and circulated to member states and accredited observers by the end of January 2005 for observations and comments; member states and accredited observers may submit comments on the draft by the end of March 2005; the comments will be published on the WIPO website; a one-day meeting will be held in May 2005 to discuss a revised draft; and the International Bureau shall prepare a further revised draft following the meeting, to be presented to the WIPO General Assembly in September 2005 for consideration.

Before the adoption of this decision, there was contention along North/South lines on how WIPO should respond to the CBD request. The developed countries had proposed that the matter be discussed solely by WIPO’s intergovernmental committee (IGC) on genetic resources, traditional knowledge and folklore, which would then prepare a report for submission to the CBD.

However, many developing countries did not want the IGC to be the sole body involved in the response, as the issue of intellectual property and genetic resources/traditional knowledge and the related issue of disclosure of source of origin were also being discussed in other WIPO bodies, in particular the SCP. The developing countries did not want a decision on this matter to implicitly give sole authority on the issue to the IGC, as their proposals and the negotiations on this issue in the SCP were seen by them to be perhaps even more important.

The final decision that was adopted did not give the task of responding to the CBD to any subsidiary body or bodies, but gave the opportunity to member states (and observers) to provide suggestions, and then to give feedback to drafts prepared by the International Bureau, including through an ad hoc meeting.

Patent fees

Another controversial issue that cast a shadow over the WIPO assemblies was the proposal, pushed mainly by the WIPO Secretariat, for an increase in the fees charged for processing patent applications under the Patent Cooperation Treaty (PCT).

The Secretariat provided information that WIPO was facing a huge budget deficit and that an upward adjustment of patent fees was needed to reduce or bridge the gap.

However, this proposal was opposed by the US and some other developed countries which did not find the request justifiable.

At a meeting of the PCT Assembly, also held on 4 October, a decision was made in a document ‘Way Forward on Proposal for an Adjustment in PCT Fees’, that the proposal to adjust PCT fees should continue to be considered beyond the 2004 WIPO assemblies to reach a conclusion.

The Program and Budget Committee should meet as soon as possible to analyse any readjustment of PCT fees, and an extraordinary session of the PCT Assembly should be convened if needed to consider any proposal on adjusting PCT fees.

The PCT Assembly took note of concerns expressed on the possible impact that any delay in adjustment may have on implementing WIPO programme activities.  To maintain the present level of technical and development assistance, WIPO will have to draw on its reserves.

After the PCT Assembly adopted the document, a Vice Deputy Director General of WIPO said that the International Bureau wanted to put on record that with a budget shortfall in the 2004/5 period, pending fees adjustment, WIPO would have to deplete its reserves by about 40 million Swiss francs in order to maintain delivery of its programmes, whereas a 12% adjustment of PCT fees as of January 2005 would have contained the reserves depletion to 20 million francs.

The US said it did not agree with this analysis and the issue would have to be looked at in the Budget Committee.                                             

Martin Khor is Director of the Third World Network.