US embassy cable - 05GENEVA1648

UNCLAS SECTION 01 OF 02 GENEVA 001648 
 
SIPDIS 
 
SENSITIVE 
 
E.O. 12958: N/A 
TAGS: ECON, KIPR, WIPO, Intellectual Property 
SUBJECT: WIPO STANDING COMMITTEE ON THE LAW OF PATENTS 
(SCP) FAILS (AGAIN) TO ADOPT A WORK PLAN ON SUBSTANTIVE 
PATENT LAW HARMONIZATION; FATE OF HARMONIZATION AT WIPO IN 
DOUBT 
 
SUMMARY 
 
1.  (U) The WIPO SCP met June 1 and 2, 2005, at WIPO 
Headquarters in Geneva to once again discuss proposals for 
moving work on substantive patent law harmonization forward. 
No agreement was reached, thus calling into question whether 
WIPO is the appropriate venue for achieving harmonization. 
END SUMMARY. 
 
INTRODUCTION 
 
2.  (U) The WIPO SCP convened for its eleventh session on 
June 1 and 2, 2005, at WIPO Headquarters in Geneva.  The 
meeting was chaired by Boris Simonov of the Russian 
Federation.  Representing the Secretariat was WIPO Deputy 
Director General Francis Gurry, filling in for the curiously 
absent Director General, Dr. Kamil Idris.  The central focus 
of the limited agenda for the meeting was the discussion of 
the future work of the SCP. 
 
BACKGROUND 
 
3.  (U) Since its inception in 2000, the SCP has been meeting 
to discuss the technical details of a draft Substantive 
Patent Law Treaty (SPLT).  Over the past two years, however, 
the discussions have deteriorated due to disputes between 
developing and developed countries over the best way to 
proceed with the discussions.  The two competing schools of 
thought on this issue are represented by a group of 
developing countries led by Brazil, Argentina and India, who 
argue that the entire draft treaty as a whole must be 
considered to take account of the interests of all, and a 
group consisting of the United States, Japan and other 
developed country members of WIPO Group B, who believe the 
discussions should concentrate on a scaled-down first package 
of draft provisions related to four prior art issues*the 
definition of prior art, grace period, novelty and 
non-obviousness/inventive step. 
 
4.  (U) In an effort to reinvigorate the stalled patent law 
harmonization talks, the United States and Japan co-sponsored 
a proposal for the 2004 WIPO General Assembly meeting asking 
the General Assembly to adopt the &first package8 as the 
work plan for the SCP.  The proposal noted the inefficiency 
of discussing the treaty as a whole, given the sharp 
divisions that had developed over certain issues, namely 
patentable subject matter and disclosure of traditional 
knowledge and genetic resources, and suggested that the work 
of the SCP should be refocused to a smaller set of issues 
that were ripe for near-term agreement.  The proposal noted 
that harmonization of prior art standards would help reduce 
duplication of work by national offices, improve patent 
quality, and allow users to better predict the results of 
examination from office to office around the world.  That 
proposal was rejected, mainly due to the efforts of a group, 
led by Brazil and Argentina, calling themselves the friends 
of development that argued the entirety of the draft treaty 
documents need to be discussed so that issues of importance 
to developing countries could be addressed, notwithstanding 
that many of these delegations had previously argued that the 
existing treaty documents would result in unacceptably broad 
harmonization.  The General Assembly did, however, agree that 
the future date of the next SCP meeting would be determined 
on the basis of consultations the WIPO Director General may 
undertake. 
 
5.  (U) Pursuant to the General Assembly decision, the 
Director General convened an informal consultation in 
Casablanca, Morocco in February 2005.  Although the various 
WIPO member state interests were represented at the 
Casablanca meeting, not all member states were invited.  The 
meeting was chaired by India and presided over by the 
Director General.  The meeting produced a proposed work plan 
to address the various concerns that had been impeding 
progress on harmonization.  The proposal recommended that the 
SCP take up work on the &first package agenda, i.e., the 
four prior art issues, and that the WIPO Intergovernmental 
Committee on Intellectual Property and Genetic Resources, 
Traditional Knowledge and Folklore should discuss issues 
related to genetic resources and sufficiency of the patent 
disclosure in parallel, accelerated processes in each body. 
 
6.  (U) This work plan was agreed to by all present except 
the delegate from Brazil.  In various press releases and 
statements following the meeting, Brazil criticized the 
process as unfair, particularly noting that not all 
developing countries were represented.  The criticism also 
eventually led India to back away from its chairman,s 
support of the Casablanca proposal. 
 
11th SESSION OF THE SCP 
7.  (U) The Casablanca work plan was the central item on the 
June 2005 SCP agenda, along with a proposal from Brazil, 
Argentina, India and others, which argued that the SCP should 
continue discussing the draft SPLT as a whole, but also that 
the SPLT should include provisions on transfer of technology, 
anti-competitive practices, safeguarding of public interest 
flexibilities and specific clauses on principles and 
objectives. 
8.  (SBU) It was clear from the opening few interventions at 
the start of the meeting that the discussions would be 
difficult.  Argentina led off with a statement from its 
ambassador, stating its commitment to cooperation &as may be 
necessary, but emphasizing its view that the Casablanca 
process was unbalanced and not representative of all views. 
(Note:  The participation of Argentina,s ambassador at the 
SCP, which is a specialized technical body of WIPO, is 
indicative of how politicized and how detached from its core 
technical mission the work of the SCP has become)  Argentina 
continued by stating that the &developing8 countries were 
not demandeurs on the SPLT, but had participated 
constructively, and noted that the Casablanca proposal was 
unacceptable because it was too rigid with respect to TRIPS 
flexibilities.  India, Brazil, Egypt and Chile supported the 
intervention by Argentina.  (Note:  India,s ambassador led 
India,s delegation on day one of the meeting, again 
illustrating the politicized nature of the discussions). 
 
9.  (U) Italy, on behalf of Group B, voiced support for the 
Casablanca approach, and was supported by Sudan, Morocco and 
a number of NGOs.  Switzerland proposed that all six items 
identified in the Casablanca approach be developed in the 
respective bodies so that all six can be presented at once to 
a diplomatic conference at an appropriate time.  This 
proposal, however, did not receive support.  In addition, 
Pakistan proposed that before proceeding further on 
harmonization, the SCP should investigate its potential 
impact and suggested that the WIPO IB and UNCTAD produce a 
joint study of the effects of IPR standards on development. 
Australia supported the concept of an impact analysis, but 
noted that the SCP should maintain its focus on the law of 
patents, not the law of all things.  India also supported the 
concept, but as part of the overall development agenda, not 
as part of the SCP discussions.  The United States noted 
serious misgivings concerning transparency and inclusiveness 
of such a study and suggested that individual member states 
were better situated to make a decision on potential impact. 
 
10.  (U) The remainder of day one was devoted to different 
delegations, including NGOs, expressing different views on 
how to proceed.  At the end of the day, the Chairman noted 
the divergent views, the various proposals put forward and 
suggested that the SCP should endeavor to provide a pragmatic 
recommendation for the General Assembly. 
 
11.  (U) Day two of the meeting was supposed to be a simple 
exercise in adopting the two-page draft Chairman,s Summary, 
but quickly turned into a lengthy exercise in parsing 
language, led again by Brazil, Argentina and India.  There 
were lengthy discourses on how five short paragraphs, which 
did not say a great deal to begin with, should be arranged so 
as not to give false or misleading impressions about one 
thing or another.  The delegation of China, reflecting the 
growing anger and exasperation of many delegations in the 
room, finally intervened with a plea to either resolve the 
issue or have no summary at all.  What should have taken, in 
terms of reasonable interventions and discourse, perhaps an 
hour to resolve ended up taking an entire day finally being 
resolved the next morning. 
 
12.  (SBU) The unnecessarily contentious Summary drafting 
exercise was illustrative of the apparent bad will and 
contentious nature that characterizes discussions in this 
committee.  It does not appear that differences will be 
resolved soon.  The United States has already initiated 
discussions with interested parties outside WIPO and plans to 
continue to pursue harmonization in that context to achieve 
progress.  While these discussions are being undertaken with 
the hope, however small, of bringing work back to WIPO if 
circumstances change, all options should remain open. 
Moley