International patent law harmonization efforts: a fine mess

Didn’t think harmonization was a hot issue?  It is.  In fact, its scorching right now.  Harmonization efforts are currently a complete mess.  The US is leading a group of developed nations, including Japan, Canada, Australia, and parts of Europe, to limit harmonization talks to certain “first package” issues (scope of prior art, grace period, novelty, etc.).  Agreement to have future meetings amongst these and other developed nations, and on an agenda for the talks, was reached at a recent non-WIPO meeting held at the USPTO.  Subsequently, the WIPO Director General held an invite-only meeting in Morocco on harmonization efforts.  Invitees were mostly representatives of developed nations, with a few from underdeveloped nations (which some say were carefully selected).

The statement issued at the end of the Morocco meeting includes an agreement that six issues (prior art, grace period, novelty, inventive step, sufficiency of disclosure and genetic resources) should be addressed within WIPO and in an accelerated manner.  The Brazilian delegate formally registered his “non-association” with the statement.

Underdeveloped and developing nations have a vastly different agenda from that of developed nations.  These countries have great interest in focusing talks on the scope of patentability and compulsory licenses, among other issues.  Indeed, a group of these countries, the Group of Friends of Development (which includes Brazil), recently issued a statement that reiterates the need for a WIPO-based development agenda and even challenges the propriety of the Morocco meeting.

So the process by which harmonization discussions are held is under scrutiny, as is the agenda.  There should be significant action on the issue in coming months.  In April, the Intersessional Intergovernmental Meeting is holding a session that will include discussion of WIPO’s International Development Agenda.  In May, the WIPO Standing Committee of Patents is meeting to consider the objectives of the Morocco statement.

Meanwhile, India sits on the sidelines struggling to deal with its TRIPs obligations.  I wonder if India would have joined the Friends of Development had it not been obligated to make certain changes to its patent law.