?TRIPS flexibilities sacred; no plans to touch them?

Francis Gurry, the director-general of the World Intellectual Property Organisation was in the capital recently, amid the controversies over multilateral body?s plans to reform the Patent Cooperation Treaty (PCT) which, some quarters allege, would lead to infringing upon the powers of national governments in matters of patent examination and grant.

Francis Gurry, the director-general of the World Intellectual Property Organisation (WIPO) was in the capital recently, amid the controversies over multilateral body?s plans to reform the Patent Cooperation Treaty (PCT) which, some quarters allege, would lead to infringing upon the powers of national governments in matters of patent examination and grant. The fear is that WIPO?s efforts to de-clog patent pipeline will practically necessitate dilution of powers of national governments to use their hard-earned freedom to set limits for intellectual property rights (IPRs) even while being signatories to the Trade Related Intellectual Property Rights (TRIPS) agreement. Gurry, who has been part of WIPO?s top management team since 1997, attempted to allay these concerns in an exclusive interview with FE?s KG Narendranath.

WIPO?s plans to reform the Patent Cooperation Treaty (PCT) are being viewed with certain scepticism by many governments and sections of the global industry. The fear is that the reformed PCT would undermine the ability of national government to make use of TRIPS flexibilities to strike the right balance between patent rights and national interests.

We plan to reform the PCT to address certain dysfunctions in the global patenting system, some of which are purely mechanical in nature. There is a choking of the patent offices across the world due to the spurt in number of patent applications in recent years.

When the Paris Convention for the Protection of Industrial Property was first concluded in 1883, there were approximately 80,000 patent applications, or new technological solutions, filed around the world. As opposed to that, there are 1.8 million new patent applications every year. With the systems struggling to cope with the mammoth task of processing these requests, the number of unprocessed processed applications at last count was 4.2 million.

Besides, there are also questions about the quality of the output of patent offices. PCT, being a very representative body of 144 member states, is an apt platform to initiate corrective steps to address these dysfunctions.

I wish to make one thing very clear-nothing that we will do would in anyway infringe upon the member states? freedom to use the TRIPS flexibilities. In fact, that principle lies beneath the very foundation of PCT and we absolutely don?t have any plan to change that. TRIPS flexibilities would be deemed sacred. The proposed PCT reform, the road map for which was announced in September 2009, clearly won?t affect the rights of any sovereign government to grant or refuse patents. We don?t intend to deal with such substantive matters of patentability.

There are two reasons for the steep growth in number of patent filings across the world. First, with technology being infused in every aspect of human life, the economic value of innovation has increased manifold. Secondly, cross ?border transactions are now part and parcel of corporate business strategies in a rapidly globalising world wherein IPRs are one of the important tools to beat competition. So, across the frontiers of knowledge, there are more focussed attempts to acquire IPRs that transgress national boundaries.

The PCT facilitates ?international application? but does not result in issuance of ?international patents? as suspected by some quarters. The PCT system is immensely helpful to patent seekers as it allows patent protection for an invention simultaneously in a large number of countries by filing a single international application with a single patent office. The decision on whether to confer patent rights is purely that of national /regional patent offices. Also, the rights are limited to the jurisdiction of the authority that grants them. So, one purpose of PCT is to reduce duplication of efforts.

Delays in decision-making are a risk to each and every stakeholder?the applicant, the industry, competitors and the society at large. Uncertainties are a huge burden on businesses.

The plan, therefore, is to have mechanisms for international search and international preliminary examination, both of which would be helpful to the national patent offices that strive to build capacities, but won?t in anyway be binding on them. The search system would enable the patent seeker to evaluate his chances and use that information for business planning whereas the competitors can also validate their potential abilities.

We already have 17 patent offices that are conferred the status of international authorities to take these plans forward. These authorities are from both the developed and emerging economies. India and Brazil offices secured the title two years ago. Egypt and Israel are expected to join the bandwagon soon.

There have been attempts to reduce the backlog of patent applications through bilateral initiatives like patent prosecution highways. The US and Japan have been particularly active on this front. But what PCT reform would offer is multilateral solution to this problem that would be much more effective.

With China, Russia and Japan being important players in the world of patenting, collaborative search under the PCT is also required to deal with language problems. A linguistic directory for collaborative search is being set up. These kinds of initiatives would improve the quality of outcome of patent offices, without constraining the freedom of any national government.

How serious is WIPO in fulfilling one of its key mandates viz supporting capacity building of patent offices in developing countries?

Capacity-building is integral to WIPO?s mandate. We have been interacting with all member countries on this. We have a budget for 60 million Swiss francs a year for the capacity-building programme.

Although recent years have seen considerable increase in the number of patent filings by China, Korea etc, developed-world continues to have a huge lead in the area.

In the last 15 years, the geography of technology and production has changed significantly. In 1994, Japan, Korea and China accounted for 7.4% of global patent filings, whereas the corresponding figure in 2008 was 26.2%.

The US patent office received the largest number of patent filings (0.45 million) in 2007, followed by the patent offices of Japan (0.39 mn), China (0.25 mn), Korea (0.17 mn) and Europe (0.14 mn). Significantly, Japan accounted for the largest number of resident filings (31.7%).

Between 2003 and 2007, the share of these five largest patent offices in total filings increased from 73.5% to 76.1%. But the increasing ability of emerging economies to benefit from patent system is evident from the fact that Brazil and China reported the steepest hikes in the number of patent filings during the 2003-2007 period, with rates of growth of above 10% a year. In contrast, there was actually a decline in filings in Japan and UK.

Patent offices of India also received significant number of filings (28,940 applications in 2006). Of course, majority of these filings originate from non-resident applicants.

Has the global economic crisis impacted the scenario?

Available data for the year 2008 shows a slowing of the growth rate of patent filings in the US. The number of applications through the PCT route also showed a decline in the year. There was zero growth in patent filings at the US Patent and Trademark Office in 2008, compared to over 7% increase in the previous year. Similarly, PCT filings increased by 2.3% in 2008 compared to 5.9% increase a year earlier.

However, this is a temporary setback. Clearly, the long-term trend is one of steady intensification in the use of intellectual property. This reflects the development of the knowledge economy, in which knowledge and education are at the centre of the economy, development and social change.

You have met senior functionaries of the Indian government during the current visit. How have they responded to the planned PCT reform?

I have met the Prime Minister, the deputy chairman of the Planning Commission, the commerce and industry minister and the HRD minister among others. They have been quite supportive of the idea of having strong IPR system. They have also stressed on the need for policies that would ensure that the social benefits of innovation are sufficiently diffused for them to be truly meaningful to the people at large. The foremost question of how intellectual property can contribute to the reduction of knowledge gap, that is at the root of social problems.

India introduced a provision in its patent law in 2005 ? Section 3(d)?with a view to ensuring that minor modifications of known pharmaceutical substances do not qualify for patents unless they meet the criterion of substantial improvement in efficacy. International opinion is divided on the TRIPS compatibility of this provision. What is WIPO?s position?

That decision (to introduce Section 3d) was entirely that of the government of India, which is clearly entitled to take a call on what it deems the best policy for the country.

It is not for WIPO to sit in judgement over this. Member of states of WIPO have never considered the issue of TRIPS compatibility of section 3(d); neither would be allow that. As far as such policy issues are concerned, WIPO is a facilitator of dialogue; a neutral battleground, so to say. I have emphasised that at WIPO all decisions are taken by consensus.

India?s generic drug makers are worried over the recent incidents of the ?unlawful? confiscation of their Africa-bound export goods by the EU Customs authorities on charges of them being ?counterfeit.? There are also many other non-tariff barriers that they face in the EU and US markets.

In this case, India can approach the TRIPS dispute settlement forum. Counterfeiting is a serious global problem that affects everyone. It is not a North-South problem, but a problem of globalization, of open markets, good transportation systems and the free movement of persons, goods and capital. It is deliberate, large-scale imitation of brands; identity and trade dress that leads to counterfeiting. In the area of medicines, African countries have expressed concern over the issue in view of the danger such products pose to health and safety of their citizens. Clearly, generic medicines are not counterfeit medicines. Generic medicines have their legitimate place within the competitive and regulated market for pharmaceuticals.

Patent is basically a right to exclude others. Have you any estimate of the extent of actual commercial use of these rights?

In the 20 years since one filed for a patent, he is supposed to pay a maintenance fee to the authorities. The experience has been that most applicants do not continue to pay the fee after 9 years or so, from the date of filing, which indicates how valuable is the right to them. This would give one an idea of the incidence of actual sue of patents. Companies like IBM used to publish information on their patent filings for defensive purposes. It is part of the strategic thinking of research-oriented firms as to what they would like to patent, what information would be kept confidential and what would have to be published to pre-empt competitors.

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First published on: 17-11-2009 at 23:14 IST