At the Geneva headquarters of the World Intellectual Property Organisation (WIPO), skirmishes between rich nations and the developing world take place with predictable regularity. To the outsider, it may seem like a lot of bickering over trifles — working groups setting up contesting agendas, special interest blocs seeking debate on larger issues, etc. But as in all institutions of global policy and regulation everything here is fraught with consequence. What WIPO decides has a direct bearing on the fortunes of a host of industries in the developing world.
The current WIPO meeting on the patent cooperation treaty — the PCT governs the way the world administers patents — received quite a jolt from the US just a week before it opened on May 4. The Americans, dissatisfied with the way the current treaty was functioning, had proposed a comprehensive revision of the international patent system. The far-reaching proposal, the US Patent and Trademark Office (USPTO) says would result in the establishment of a new treaty, PCT II. Naturally, it set alarm bells ringing across the developing world.
On the face of it, PCT II would promote efficiency and harmonisation, and thus speed up issuance of patents worldwide. “Such a system should result in the issuance of patents having a very high level of confidence for applicants as well as substantial long-term savings for the national/regional offices through its collaboration,” promised the USPTO.
In Delhi, such a claim did not go down well at all. Industry lobbies were quick to point out that the proposal goes far beyond the harmonisation of patent laws envisaged under the Substantive Patent Law Treaty (SPLT) which the developing nations have been opposing, and various departments of the government went into high-alert over the ramifications of the US move. At the heart of the issue is the touchy question of national sovereignty in grant of patents. As some lobbies see it, the US proposal is aimed at instituting a system similar to the one for international registration of trademarks that WIPO administers under the Madrid protocol.
The Indian Pharmaceutical Alliance (IPA), which groups the countries largest pharmaceutical exporters, was quick to say such a system “dilutes our sovereignty in determining patentability of applications for inventions and does away with flexibilities negotiated under the TRIPS Agreement”. The TRIPS agreement negotiated in the World Trade Organisation (WTO) is the benchmark for developing countries.
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For civil society organisations, the concern is that the public health safeguards enshrined in the TRIPS Agreement and the Doha Declaration would no longer hold good if sovereign laws are bypassed. If the PCT comes into being, India’s patent offices would become largely irrelevant and the country’s special criteria for grant of patents, laid down in detail in its Patent Act Amendments of 2005 and the subsequent rules framed under it would become void. True, the international patents can be challenged but how many could a developing country take on?
“If an applicant can get his patent accepted in two of the 11 WIPO-approved offices, and these are all developed-country-members, then the patent becomes a global patent,” says Dilip Shah, IPA secretary general. And all this is to happen within a period of 36 months in the timeline suggested by the US.
For the time being, WIPO has kept the US PCT II proposal on hold. As it is, the working group has its hands full in getting a roadmap for speedy approvals for patents accepted by developing countries. The plan is intended to reduce duplication and encourage work-sharing between offices in order to cut down on the international searches. But this is raising the hackles of developing countries who view this as an attempt to bring about the much-reviled harmonisation of substantive national patent laws through the backdoor.
The irony is that while the developing countries fight it out at WIPO, the leading caucus of the rich nations has signalled in no uncertain terms that the real battles will be fought elsewhere. For one, the intellectual property (IP) experts group of the G-8 had, in meetings held in February and April 2009, laid down a strategy for “realising a well-functioning and efficient intellectual IP system and for combating counterfeiting and piracy”. High on this agenda is the Anti-Counterfeiting Trade Agreement (ACTA) which was kept under wraps because of its lethal search-and-seize provisions but is now being discussed openly. The European Union is pushing hard for ACTA and its officials make no bones about their goals.
ACTA is all about IP enforcement because it was extremely difficult at the WTO and even more so at WIPO,” Luc Devigne, negotiator for the European Commission’s Trade Directorate, was quoted as saying in Brussels on April 21. In fact, Devigne was brazen enough to declare that “TRIPS is the floor, not the ceiling.”
The outlook for developing countries that are being squeezed from different sides by the maximalist agenda of the rich nations appears pretty grim. Is there any way they seek a more balanced system? Henning Grosse Ruse-Khan of the Max Planck Institute for Intellectual Property, Competition & Tax Law says it is all a matter of political clout. “Developing countries, specially the smaller ones, must strengthen their strategic alliances in key forums such as the WTO and WIPO even if this has resulted in deadlocks in these multilateral forums and led to ‘forum-shifting’ towards regional and bilateral negotiations. Here, the developing countries have much less of a chance to stand up against pressures from the EU or the US,” warns Ruse-Khan who is research fellow and head of commonwealth section at the Max Planck Institute.
It is crucial, therefore, that developing countries have an IP agenda of their own — not merely as a defence mechanism but as an offensive strategy as well. “This implies knowing the domestic impact of IP regulation, where and how domestic industries can benefit from lax, medium or stronger protection,” says Ruse-Khan. His contention is that knowing the potential effects of IP regulations, proposed by developed countries, allows poor countries to “negotiate smarter, reject proposals with detrimental impacts and demand more carefully calculated returns (which offset any potential negative impact).”
However, the developing country lobby is hardly likely to buy his argument that the pendulum of increasing IP protection may actually have reached its peak and be swinging backwards, especially in the wake of ACTA and other moves being initiated in the World Health Organisation.
What is being ignored by the rich club is that IP agreements are built on the concept of minimum protection which members must implement in their national laws. Although this implies that members are free to provide more extensive protection, some agreements have provisions which impose ceilings or mandatory limitations. For instance, TRIPS Art.1:1 expressly states that higher protection can be granted “provided that such protection does not contravene the provisions of this Agreement.”
In this context, a research paper prepared by Ruse-Khan with his colleague Annette Kur, senior researcher at the institute, has come up with a solution: The concept of a maximum rights ceiling under TRIPS which would protect the flexibility and policy space under this agreement. But will there be consensus on such a proposal given the deep divide between the IP rights holders and those who are seeking freer access to knowledge? As the two sides become increasingly polarised by the plurilateral measures initiated by rich nations, it would seem that the war for IP rights will become entrenched.