Saturday, February 6, 2010

ITSSD Makes Revealing Submission to the WIPO SCP Concerning Evolving Government Procurement Rules; Brazil's IP Opportunism Shows Thru Again!!

On January 25, 2010, during the 14th Session of the WIPO Standing Committee on the Law of Patents, the ITSSD submitted a quite revealing document entitled, Supplement to ITSSD Comments Concerning the WIPO Report on Standards and Patents (SCP/13/2) Paragraph 44.

This document exposes the growing governmental effort in a number of countries around the world to reform the international law of government procurement, in tandem with desired international patent law reform proposals, such that patent-rich health-tech, information-tech and clean & alternative energy clean-tech technologies embedded in an industry or national standard, will be required to be ROYALTY-FREE or NON-PROPRIETARY, consistent with the 'PUBLIC INTEREST', in order for such a technology to be widely adopted.

In other words, a growing number of national and regional foreign governments have unilaterally decided that 'PUBLIC INTERESTS' trump PRIVATE INTERESTS because, in their view, patents are either utilitarian regulatory instruments enacted by the state to individual inventors to promote a PUBLIC INTEREST, or they are NOT PRIVATE PROPERTY AT ALL!

A recent article appearing in the Intellectual Property Watch blog makes this clear for all inventors and patent holders, the world over, to see. In addition, to trying to express direct or indirect preferences for ROYALTY-FREE or NON-PROPRIETARY technologies in government procurement regulations, foreign national and regional governments are endeavoring to expand the exceptions and limitations to and conditions on the grant of a patent, with the Brazilian government and Group of 77 African nations leading the charge! [SEE BELOW!!]


WIPO Patent Committee Prepares To Discuss Future Work Programme

By Kaitlin Mara

January 27, 2010

Discussions at the World Intellectual Property Organization patent committee this week are focussed on a series of new studies, though one of the more difficult issues on the table - exceptions and limitations to patent law - will not be substantively dealt with until the next meeting in October.

Discussions on future work for the committee, with a proposal on the table from Brazil for a new work programme on exceptions and limitations, are soon to begin and are likely to be the most difficult topic of the week. The WIPO Standing Committee on the Law of Patents (SCP) is meeting from 25-29 January.

Brazil’s proposal, available here [pdf], calls for a three-part programme for the SCP, including an information-gathering phase, in which countries share national and regional experiences; an investigative stage, to find the particular exceptions needed and conditions needed to implement them; and a final stage in which the creation of a manual on exceptions and limitations will be considered.

This work on exceptions and limitations is necessary, the Brazil proposal said, as countries are now “facing a moral deadlock” where “developed countries seem to be the only ones capable of reaping any advantage from the [IP] system,” and it is unclear what benefit membership in WIPO is bringing other states.

“The na├»ve assumption that providing IP title holders with stronger rights will, by itself, foster innovation or attract investments is no longer acceptable… creativity and creative economy do not rely solely on an increasingly stronger” IP regime, the proposal adds. The claims of rights holders “are undoubtedly legitimate, but certainly incomplete from the perspective of the public policy.”

The proposal received strong support from developing countries, though some developed countries said the time was not yet right to discuss it, as the proposal was only circulated Monday afternoon of the weeklong meeting.

The official study on exceptions and limitations - which the committee decided to undertake at its last meeting in March (IPW, WIPO, 30 March, 2009) - is not yet finished, but WIPO sources said it would be by the next meeting in October. The report is still currently with an external group of experts who were commissioned to write it.

Brazil’s proposal further says that there is precedent for this kind of work in Article 30 of the Trade-Related Aspects of Intellectual Property Rights agreement at the World Trade Organization. This article lays out a sort of “three-step test” to establish acceptable limits and exceptions.

Also this week, several small developing countries are trying to ensure that their particular needs are being addressed.

A representative of one of these countries said “WIPO should move from the one-size-fits-all approach,” and asked that their particular situations be reflected in the exceptions and limitations studies and in Brazil’s proposed work programme. This includes help with understanding what rights are available to them, how they may be used, and what political pressure they may receive to avoid using them as well as an analysis of what particular rights are most relevant to small countries in their individual contexts.

New Studies

The rest of the discussions this week have focussed on four new studies: one on client-patent advisor privilege, one on technical solutions to improve access to and dissemination of patent information, one on transfer of technology, and one on opposition systems.

Technical solutions for patent information access primarily revolve around the possibility of digitising such information. Digitally formatted patent information “is still limited globally,” the WIPO report [pdf] notes, especially in “searchable full-text format.” What information is available is often hard to interpret for users not specialising in IP law. And when information is available, it is often not free, which can be burdensome for small patent offices and small companies alike, the report says.

Transfer of technology is considered a critical issue in several international fora, and is often cited as one of the key ways to assist in economic development of poor countries, and to aid in the global fight against climate change. The way in which IP may either incentivise or prevent such transfer has been a subject of much debate.

The WIPO study, available here [pdf], explores this debate. It says “no conclusive evidence can be found with respect to the relationship between patent protection and the transfer of technology,” but does present findings from economic studies on the issue as well as a look into different ways and systems through which technology transfer might be achieved.

Three-Step Test For Patents?

This week the Free Software Foundation of Europe is proposing the committee consider using a three-step test on whether a particular type of knowledge should become patentable subject matter or not.

These three steps take the form of questions: “1, is there a demonstrated failure of the market to provide innovation in this area?; 2, are there demonstrated positive effects of disclosure from patenting in this area?; 3, in this area, does the patent system work effectively to disseminate knowledge?”

"Patents are a form of regulation, and constitute state intervention in the market," said Karsten Gerloff, president of the FSFE. And, he added, “as with any regulation and intervention, the first consideration must be to do no harm.” These questions should help ensure that patents aid the cause of innovation, he added.

William New contributed to this story.

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