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Patent Law Harmonization Talks Stall; Brazil, Argentina, India Oppose Compromise

A compromise plan on patent law harmonization that would have fast-tracked core patent law and development-related issues was put forward by the World Intellectual Property Organization (WIPO) at its June 1 - 2, 2005, meeting of the Standing Committee on the Law of Patents (SCP). WIPO's compromise proposal was blocked by a group of countries led by Brazil, Argentina and India.

The compromise approach presented by WIPO was the result of February 2005 consultations led by WIPO Director General Dr. Kamil Idris in Casablanca, Morocco. Over 22 WIPO Members attended the Casablanca meeting in an effort to find a solution to the lengthy impasse in patent law harmonization talks in the SCP. The so-called "Casablanca compromise" urged the SCP to focus its efforts on basic patent law principles amenable to near-term agreement—the definition of prior art, grace period, novelty and non-obviousness—while requesting that the WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) take up parallel, accelerated discussions on developing country issues concerning genetic resources and patent disclosures.

Despite support from a majority of the WIPO membership, including the United States, the Casablanca compromise was not adopted in the face of fierce opposition spearheaded by Brazil, Argentina and India. These three Members tabled an alternative proposal that the SCP continue working on the entire draft harmonization treaty. This proposal also demanded that any harmonization treaty include provisions on technology transfer, anti-competitive practices and safeguarding of public interest flexibilities. Many other delegations, the United States among them, opposed the proposal as "unworkable," citing the "all or nothing" approach as a contributing factor to the lack of progress in the SCP over the last two years. Discussions further deteriorated when Brazil, Argentina and India led a day-long marathon of editing the two-page draft Chairman's Summary, which ended only after a plea from the delegation of China.

The failure of the SCP to reach an agreement on its work plan puts patent law harmonization talks at WIPO on indefinite hold. The impasse also raises serious questions as to whether WIPO is even a viable forum for further meaningful patent discussions.

"We are very disappointed with the outcome of last week's Standing Committee meeting," noted Jon Dudas, Under Secretary of Commerce for Intellectual Property.

Lois Boland, Director of the Office of International Relations at the U.S Patent and Trademark Office added that, "WIPO appears to be facing a serious identity crisis, underscoring the need to consider alternative approaches for achieving harmonization so that we can realize efficiencies and better patent quality worldwide. Our users have spoken in no uncertain terms about their need for progress in this area."


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