The WIPO patent agenda: the risks for developing countries

This paper is aimed at assessing some of the implications of the Patent Agenda, in the context of the ongoing debates on the benefits and costs of intellectual property protection for developing and least developed countries. It attempts to provide an overview of the processes under the WIPO Patent Agenda, to identify and examine the main issues that are under discussion and to underscore the importance of these issues for developing and least-developed countries.

The paper begins with a brief introduction to the interlinkages between the intellectual property standard setting at WIPO and at the WTO and provides some historical perspective on the trends in international intellectual property standard setting. It goes on to present a brief background to the Patent Agenda and examines some implications and issues arising. Notably…

• the perceived relaxation of standards in the draft Patent Law Treaty.
• the proposals to reform of the Patent Co-operation Treaty to facilitate global patenting.

Next the authors move on to looking at the state of negotiations at WIPO on the Substantive Patent Law Treaty (SPLT) and potential implications of creating uniform substantive patent law standards on issues such as

• prior art,
• novelty
• disclosure
• drafting and interpretation of claims
• grounds for refusal of an application
• issues relating to revocation and invalidation of patents

Some of the main concerns about the SPLT, from the perspective of developing countries are addressed along with the question of who exactly will benefit from the process.

Finally the paper addresses some strategic considerations for the future participation of developing countries in the Patent Agenda process within the context of WIPO - WTO intellectual property standard setting. The paper concludes that:

• The Patent Agenda has been launched without any analysis of its impact on development.
• The Patent Agenda has been conceived and is executed with the goal of benefiting those companies with large-scale international patenting activity, and to support the proliferation of patents on incremental developments, which are often used to erect market barriers.
• The further harmonization of patent law does not therefore seem to be in the best interest of developing countries. Given the objectives of the Patent Agenda, there is little that developing countries could gain through this far-reaching exercise in international intellectual property standard setting.
• To counter this lopsided approach to the development of international patent law what is needed is better coordinated and sustained efforts by developing countries aimed at preserving the currently available flexibility to fashion national laws.

In this regard, the paper concurs with the recommendation by the Commission on Intellectual Property Rights (CIPR) that, the WIPO harmonization process should be rejected by developing countries if it appears that the outcome will not be in their interests. The paper also stresses the importance of developing country representatives in both WIPO and WTO.