The World Intellectual Property Organization (WIPO), located in Geneva, Switzerland, is the UN specialized agency whose mission is to promote the protection of intellectual property. While the international intellectual property protection systems, such as the Patent Cooperation Treaty and the Madrid System for the International Registration of Trademarks, continue to grow, many of the forward looking norm-setting activities at WIPO are in a state of flux. WIPO is also undergoing significant management changes, arising out of the decision of its Director General, Dr. Kamil Idris, to step down a year before his present term expires. In light of this, 2008 promises to be a transitional year for WIPO. These developments will have significant effects on private stakeholders and trade associations active in intellectual property rights policy. Accordingly, they will need to assess promptly whether and in what way they should be engaged in the process.
New Director General for 2008
In 2007, the Director General of WIPO agreed to step down and allow WIPO to select a successor in October 2008, one year before his present term expires. Dr. Idris had been re-elected by WIPO Members to a second six-year term in 2003, but his most recent term in office has been plagued by accusations of misconduct, based on an investigation and report by the Joint Inspection Unit (JIU) of the United Nations. Dr. Idris was compelled to step down early following the loss of confidence of key Member States, including the United States, Japan, and some countries of the European Union.
The Director General of WIPO plays an important role in directing the priorities of WIPO. Dr. Idris was first elected in 1997 on a platform focused on improving the capacity of developing countries to implement and improve the operation of their intellectual property systems. Since his election, however,WIPO has struggled to define a clear mandate to improve intellectual property systems, and develop a consensus on any significant elements of its work program. The new Director General will face significant challenges in shifting the focus of WIPO and placing initiatives back onto a productive path.
Rumours are intense in Geneva on a potential successor. Among the known or likely candidates for the position are the former President of the Brazilian National Institute of Intellectual Property (INPI) José Graça Aranha, who is currently director of the International Registrations Department at WIPO;WIPO Deputy Director General Francis Gurry (Australia); Benoît Battistelli, Director General of the National Institute of Intellectual Property of France; Jorge Amigo Castañeda, Director General of the Mexican Institute of Intellectual Property; Roland Grossenbacher, Director of the Swiss Federal Institute for Intellectual Property; and Enrique Manalo, the Philippine Ambassador to the UN and other international organizations in Geneva. Member States are being asked to provide their nominations for the new DG by February 13, 2008. The WIPO Coordination Committee will nominate a person for appointment as the new Director General at an extraordinary session of that is scheduled to meet May 13-14, 2008. The final decision will be made by the General Assembly in September 2008.
Resumption of the Patents Agenda?
One topic that has faced significant challenges in the past decade has been the effort to conclude a new substantive patent law harmonization treaty. With the growing international filings in all major offices, there is significant pressure to develop uniform patentability standards, which will allow the major patent examining offices to share their work product and simplify the overall process of securing global patent rights.
At the 2007 General Assembly, concluded last October,WIPO Members agreed to resume work on patent issues, and work in the Standing Committee on the Law of Patents (SCP) will resume in 2008. The SCP had been stalled due to disagreements over the scope and direction of its work program since 2004. At that time, discussions on the key elements of a Substantive Patent Law Treaty (SPLT) came to a halt. A number of developing countries, led by Brazil and India, favored talks on high-level policy issues such as genetic resources, exceptions to patentability and broader innovation policies outside of patents. Another group, including most industrialized countries, favored talks on core patentability matters, such as novelty, inventive step and other matters related to examination of patent applications. Due to the ensuing stalemate, the SCP did not even convene a session in 2007.
The Chair of the General Assembly was able to put together a proposal to enable work to resume. A report has been commissioned, to be performed by the WIPO Secretariat, that will address a wide range of patent issues. One set of issues to be addressed will be the core aspects of patent systems, including prior art and other practices, that have been the traditional focus of patent harmonization discussions. A second area of the report will address how patents may relate to high-level policy matters such as public health and the use of genetic resources in inventions. A third area, also new, will be an overview of challenges to the patent system due to increased costs, increased litigation and concerns over “patent thickets.” The report will be considered at a meeting of the SCP this year with the hope that it will facilitate adoption of a practical work plan for the committee.
Development Committee Starts Its Work
In September 2007,WIPO established a Committee on Development and Intellectual Property (CDIP), which will have its first meeting from March 3-7, 2008. The committee is the result of a long, and often contentious, negotiation between Member States over the proper way for WIPO to promote development of intellectual property protection systems. The debates over the so-called “Development Agenda” were initiated by a proposal initially presented by Brazil and Argentina, and later supported by a group of 14 countries known as the “Friends of Development.” The terms of reference for creation of the CDIP were recommended by the Provisional Committee on Proposals Relating to a Development Agenda in June 2007 and agreed by the General Assembly in September.
The CDIP will have, as its main order of business, the task of implementing a list of over 40 agreed recommendations made by the Provisional Committee at its final meeting. The proposals are wide ranging, cast in general terms, and involve five principal areas of work of WIPO: (1) technical assistance and capacity building; (2) norm-setting, flexibilities, public policy and public domain issues; (3) technology transfer, information and communication technologies (ICT) and access to knowledge; (4) assessment, evaluation and impact studies; and (5) institutional matters including mandate and governance. Concerns have been raised that some of these proposals could lead WIPO to pursue activities outside its core mission of promoting intellectual property protection, and it is likely that the discussions regarding implementation of these recommendations will be controversial.
Work on Genetic Resources, Traditional Knowledge and Folklore Marches On
One of the more controversial issues in the international patent policy arena relates to the protection of “genetic resources.” Genetic resources are materials derived from naturally occurring organisms. Some of these materials have proven to provide significant economic value, both directly and as the object of research and development work. Developing countries, since the conclusion of the Convention on Biological Diversity in 1992, have sought to create international norms that will provide greater protection for genetic resources. One particularly contentious issue has been a proposal to require governments to implement standards that would require patent applicants to identify in their patent applications the source or origin of any genetic resources used by the inventors on the application. The proposals generally call for the sanction of holding the patent invalid, or refusing to grant the patent, for failure to comply with the disclosure requirement.
Extensive debates on this and a range of related issues have been conducted in WIPO in the Intergovernmental Committee (IGC) on the Relationship of Genetic Resources,Traditional Knowledge and Folklore. The next meeting of the IGC is scheduled for February 25-29 in Geneva. Member States are still grappling with definitional issues for many items on the agenda of the IGC, including the scope of what is meant by “traditional knowledge,” what groups may be considered to be proper holders of such knowledge, and appropriate ways of promoting, preserving and/or protecting such knowledge. A similar discussion is taking place with respect to traditional cultural expressions that are known under the more familiar term of “folklore.” On the topic of “genetic resources,” a wide array of divergent views persists relating to the relationship of the use of genetic resources in what may become patentable inventions, as well as the merits of using the patent system to enforce compliance with benefit-sharing obligations. The discussions are expected to remain contentious.
Trademarks: Shifting Focus
The Standing Committee on the Law of Trademarks, Industrial Designs and Geographical Indications (SCT) is tentatively scheduled to meet in June of 2008. Still fresh from a successful diplomatic conference in Singapore that concluded with a revised Trademark Law Treaty (TLT) in March 2007,Members are considering new ideas for work programs in different areas of interest. In the near term,the work of the SCT will focus on non-traditional marks, trademark opposition procedures, industrial designs and International Non-proprietary Names for pharmaceuticals (INNs).
Copyright and Related Rights: Picking Up the Pieces?
The Standing Committee on the Law of Copyright and Related Rights (SCCR) will be convening from March 10-12, 2008. In the last few years, the main focus of work had been toward the convening of a diplomatic conference to conclude a treaty with respect to the protection of broadcasting organizations. However, disagreements over the scope of the proposed treaty were unable to be bridged after many years of discussions, and no diplomatic conference was convened. Instead, the protection of broadcasting and cablecasting organizations will now be moved back to the agenda of the SCCR for further discussion and a diplomatic conference will only be convened if an appropriate level of agreement can be reached. The SCCR will also be addressing the long-standing issue of audio-visual protection
Enforcement Committee Continues Sharing of Experiences
In November 2007, the Advisory Committee on Enforcement held its fourth session, sharing national experiences on counterfeiting and piracy, including experiences relating to criminal sanctions in the enforcement of intellectual property rights. As a follow-up, the ACE agreed to submit proposals for future work program ideas in February 2008 for the fifth session of the ACE likely to be held later in 2008.
All in all, 2008 promises to be a transitional year for WIPO. New leadership, a potential new start in patent-related discussions, and consideration of new themes in the trademarks and copyr ights committees will be commenced. The continuation of the contentious discussions on the relationship of intellectual property standards to development, as well as issues relating to genetic resources, traditional knowledge and folklore, will be a significant focus of the organization. Many Developing Country Members, including countries with emerging markets where the protection of intellectual property for domestic industries is more important than ever, are leading the debates on perceived conflicts between effective intellectual property systems and development priorities. It is against the backdrop of these challenges that work “promoting the protection of intellectual property rights,” central to WIPO’s mission, will take place in the coming year.