[DMCA-Activists] IP Watch: Washington Patent Meeting Stirs Concerns

[Seth Johnson]

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Subject: <incom> IP Watch: Washington Patent Meeting Stirs
Concerns
Date: Fri, 28 Jan 2005 06:56:37 +0100
From: sz <address@hidden>
To: incom <address@hidden>

Washington Patent Meeting Stirs Concerns
<http://www.ip-watch.org/weblog/wp-trackback.php/17>

IP Watch (27 Jan 2005)

A meeting next week of the world’s top patent-producing nations
to try  to bring their patent regimes closer together is raising
concerns among  developing countries and others who perceive it
as a threat to efforts  to address development issues at a
multilateral level.

The closed meeting, on which public details are scarce, is
expected to  include only the United States, the European Union,
Japan, Canada and  Australia. The U.S. Patent and Trademark
Office (USPTO) is hosting the  meeting.

“This exploratory meeting will be an important step in getting 
substantive patent law harmonisation back on track,” USPTO 
undersecretary and director Jon Dudas said in a statement earlier
this  month. “Harmonisation promises to bring substantial
benefits such as  consistent patent examination standards
throughout the world, reduced  patent office workloads and higher
patent quality. The sooner we can  agree on a basic framework,
the sooner we can begin providing these  benefits to all patents
stakeholders – patent applicants, patent offices  and the public
alike.”

Several developed nation and private-sector sources said the
meeting is  being convened to give the patent offices of key
developed nations a  chance to continue working to harmonise
their patent laws. The offices  have been working for years to
streamline procedures for companies and  other users of patent
laws.

“We were invited by the USPTO to see what avenues could be
pursued,”  said a Canadian official. Canada’s delegation will be
led by David  Tobin, Canada’s commissioner of patents, registrar
of trademarks and  chief executive officer of the Canadian
Intellectual Property Office.  “Patent harmonisation is an issue
of importance to Canada. These are  frank discussions on how we
can get these discussions going. It’s really  a dialogue. There
are no preconceived ideas.”

But sources from some developing countries and consumer groups
have  raised concerns that the meeting is being held in part to
threaten the  Geneva-based U.N. World Intellectual Property
Organization (WIPO) and  certain large developing countries that
have pushed for a development  agenda within WIPO. The fear is
that the larger economies, and the  United States particular, are
trying to show they can take the  negotiations outside of WIPO if
that organization cannot keep the talks  on track by keeping
developing countries in check. That would leave  developing
countries out of any agreement reached by the larger economies.

“My opinion is that the U.S. is convening this meeting to show
that it  is willing to move its agenda of patent harmonisation
outside of WIPO if  developing countries continue to oppose it at
WIPO, thus putting  pressure on developing countries to be more
flexible at WIPO itself,”  said one developing nation official.
“More importantly, the U.S. wants  to corner the WIPO secretariat
and to make the secretariat put more  pressure on developing
countries to go along the US agenda at WIPO in  order to save
multilateralism.”

However, some say such an approach could backfire on the
developed  countries, as key developing countries are not keen to
participate in  patent harmonisation efforts to begin with, while
it is in the interest  of developed countries to get as many
countries on board as possible.

“It may be a case of ‘be careful what you wish for,’” said James
Love,  director of the Consumer Project on Technology (CP Tech).
“If the U.S.  was really to take its marbles home [choosing to
negotiate outside  WIPO], it’s not clear that it would be able to
use WIPO anymore. And the  U.S. has used WIPO effectively.”

Patent laws currently are the subject of negotiations at WIPO,
which  traditionally has shown sensitivity toward the major 
intellectual-property producing members, namely the United
States,  European Union and Japan. WIPO has come under increased
pressure to  consider development goals of poorer countries in
negotiations. It is  unclear whether any WIPO officials will
attend the meeting in  Washington, scheduled for Feb. 3 and 4.
But the organization does not  oppose the meeting, arguing that
it is within the rights of any member  country to hold meetings.

“Any member state is free to organize a meeting on any subject of
their  choosing, whether it is the subject of a WIPO negotiation
or not,” a  WIPO spokeswoman said this week. “That’s standard.”

Some questions had been raised over whether the European Union
would  embrace the Washington meeting. But European Union
officials plan to  make a sizeable turnout for the meeting, an EU
official said this week.  Delegates from the European Commission,
Luxembourg in its role as  current EU president, and the
secretariat of the European Council (the  government
representatives) will attend. “The massive participation of  EU
institutions shows that we are very interested and that our
approach  will be constructive,” the official said.

Under discussion at WIPO is a proposal for a “substantive patent
law  treaty” (SPLT) aimed at harmonising substantive aspects of
national  patent laws. One non-participant source said the
slow-moving treaty  talks are expected to be on the meeting
agenda, along with the WIPO  Patent Cooperation Treaty and
possible alternatives for the  international filing of patent
applications.

Last fall, WIPO’s annual General Assembly agreed in principle to 
consider development objectives proposed by Argentina, Brazil
and  others. Under this Development Agenda, meetings on the
subject are  planned this year, beginning in April.

According to a WIPO spokeswoman, member states agreed at the
October  assemblies that the dates of the next session of the
Standing Committee  on Patents (the forum which is discussing the
draft SPLT) “should be  determined by the director general
following informal consultations that  he may undertake.”

The director general is holding informal consultations on the
future  work programme of the committee in February in Morocco,
the spokeswoman  said. “As the draft SPLT is being discussed in
the [patent committee, it  may be expected that the consultations
will address that issue,” she  said. “Naturally, being informal
consultations, it is not a meeting and  it is not an informal
session of the [committee].”

Suspicion runs deep on both sides of the patent harmonisation
issue. One  Washington-based intellectual property lawyer accused
Brazil and others  of an “effort to weaken WIPO” as well as the
Geneva-based World Trade  Organization by using IP issues to push
a broader agenda.

The argument for such an accusation is that despite the fact that
Brazil  has good intellectual property laws and is nearly in
compliance with key  WIPO treaties, the government recognizes
that better intellectual  property rights protection is important
to the United States and so can  be a bargaining chip in
negotiations, he said.

But CP Tech’s Love countered that developing countries are just
trying  to make WIPO more like a U.N. body where developing
countries’ concerns  get equal weight. “WIPO is the U.N. agency
to do these things,” he said.  “What people are trying to do
right now is make WIPO a U.N. agency.” He  called the Washington
meeting “really an attack on WIPO,” adding, “This  is really like
unilateralism.”

Troy Groetken, president of the (U.S.) Association of Patent Law
Firms  and an attorney with McAndrews, Held and Malloy in
Chicago, said the  meeting is not intended to threaten others but
rather stems from major  patent producers “saying we need to move
forward even though we agreed  to disagree with developing
countries.”

The purpose of the meeting is to continue coordination on patent
laws in  order to increase predictability and ease procedures for
patent  applicants, “so that patenting done on a global scale is
done more  efficiently,” Groetken said. Examples of differences
to be worked  through by the offices include searches of each
others’ records, fees,  and similar application requirements.

Developing countries have placed too much emphasis on
intellectual  property issues as a way to address broader
development goals, he said,  adding, “It cannot be a resolution
for so many other economic issues for  developing countries.”
What developed countries want, he said, is for  developing
countries to develop their own systems and to interact with 
developed countries on the issue “at every opportunity.” But, he
added,  they should not lament when developed countries are able
to make  progress on their own.

Groetken suggested that some developing countries may oppose the
meeting  because they are resisting adherence to intellectual
property laws that  could diminish their lucrative gray markets.
He also said some countries  may recognize the value of adopting
intellectual property laws but have  been displeased to learn of
new costs associated with it, such as using  developed country
patent offices for patent searches and the like.

Ultimately, the concerns about the issue may be diminished by
another  feature of the patent harmonisation issue, some say.
That is, there is  little likelihood that the top
patent-garnering nations will be able to  reach agreement among
themselves. After all, they have been trying for  years and
continue to be far apart. To proceed very far without new big 
players China, India, Brazil and others seems unlikely.
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