Oct 10, 1989
WIPO: PATENT HARMONISATION AND DISPUTE SETTLEMENT WORK TO GO FORWARDGENEVA, OCTOBER 6 (BY CHAKRAVARTHI RAGHAVAN) - The governing bodies of the world intellectual property organisation (WIPO) have given the green signal to further work in WIPO towards concluding treaties on patent harmonisation and dispute settlement (among states and among private parties).The patent harmonisation treaty is already on WIPO agenda since 1985, and the intention is to hold one or more expert meetings in 1990, leading to a diplomatic conference, perhaps in second half of 1991. Dispute settlement is a new item proposed by the WIPO director-general, and would provide for a WIPO mechanism for settlement of disputes between states on matters dealt with in WIPO under various treaties. As for disputes on these matters arising among private parties, the idea is to explore the possibility of setting up in WIPO an arbitration centre whose facilities could be made use of by the parties concerned. However, the WIPO governing bodies were unable to move forward on the decade-old efforts at revision of the Paris conventions on industrial property protection, an area where further work has been blocked by the U.S. and other industrial countries. The efforts aimed at reconvening of the UN diplomatic conference to revise the Paris conventions have been blocked by the U.S. and other industrial countries. The revision of the Paris conventions on industrial property has been on the UN agenda for over a decade. The third world countries seek changes to promote and facilitate their development by modifying the international regime. They want provisions, at least in its application to them, to enable them to provide for compulsory licensing and working of patents in their territories and prevent patents being used as import monopolies. The UN diplomatic conference, which met in 1978, and has held several sessions, has been deadlocked on these matters. The U.S., Japan, Germany, Britain and Switzerland - the major countries of TNCS and their technologies - have been blocking action at the WIPO, even as, since 1982, the U.S. has been trying to use the GATT to effect changes to suit its own and other industrial country interests. With the so-called "trade-related" aspects of the issue figuring on the Uruguay round agenda, the U.S. is pressing (and hoping to secure) through these negotiations an international regime providing for enhanced and uniform rights for the TNC owners of intellectual/industrial property rights, extend its scope to areas not patentable under the WIPO conventions, and provide for application of GATT dispute settlement mechanisms and its coercive retaliation powers. For these reasons they disfavour any work in WIPO, which would undercut their GATT efforts. As a result, the WIPO governing bodies were able to agree on no more than a holding action in this area. These appear to be the broad outcome of the meetings of the governing bodies of the WIPO which have just concluded a two-week session here Thursday, after approving the budget and programme for the biennium 1990-1991 in respect of the WIPO and the various agreements administered by it. The overall biennium budget shows an estimated income of 159.102 million Swiss francs (SFS) and an expenditure of 136.106 million, involving respectively an increase of 44.3 and 27.1 percent over the previous biennium. WIPO is the UN specialised agency dealing with industrial and intellectual property issues, and administers a score of programme and registration union, all set up by treaties. The international bureau of WIPO is the common secretariat which services all these activities - dealing primarily with governments and servicing their needs in respect of the programme unions, and servicing (for a fee) private parties who make use of its information and facilities in the registration unions. Patents, trademarks and other such rights are "industrial property", while copyright and other related rights are "intellectual property" rights, though in the Uruguay round the U.S. is trying to merge and equate both. Though as an UN specialised agency WIPO is perhaps relatively new, some of the international treaties and agreements it administers, each with its own intergovernmental body, institutional and financing arrangements, are over a century old. Programme unions are financed by contributions of member countries, while the registration unions are financed by fees for services rendered. The three major issues for the WIPO governing bodies were for further work, leading to successful conclusion of treaties to revise the Paris conventions, to conclude a treaty on patent harmonisation, and another on the issue of settlement of disputes in the areas covered by WIPO activities and conventions, disputes among states and among private party. WIPO treaties have no provision for dispute settlement except the use of international court of justice. The U.S. has made this absence a major point in pushing for GATT regime in industrial/intellectual property rights. The recently concluded WIPO treaty on semiconductors however contains provisions for dispute settlement, and one of the ideas initiated by the WIPO international bureau is for a general international treaty on dispute settlement covering all its conventions. The semiconductor treaty was concluded in Washington in May, with the U.S. and Japan alone voting against it. Despite their reservations, the WIPO governing bodies have agreed on a programme to develop a model law that states could adopt, when the treaty comes into force. The U.S. and other ICS have agreed to further work in the next biennium towards the patent harmonisation and dispute settlement agreements, but blocked the work on concluding revision of the Paris union conventions. Some third world sources said that, given the current tensions and jurisdictional disputes between GATT and WIPO as a result of the Uruguay round and the TRIPS issue on its agenda, there was surprisingly little tension at the WIPO governing bodies even in respect of patent harmonisation and dispute settlement treaties. The revision of the Paris convention having figured in the consultations preceding the meetings of the governing body, there was also little dispute, though Brazil, Cuba and others made clear their grievances and concerns over the blocking of WIPO work on the revision, and the implications of tying up further work to the conclusion of the Uruguay round, as also on the proposed pace of work on patent harmonisation treaty (which had been initiated long after the Paris revision work). At the Paris union assembly, Cuba was apprehensive as to the future of the industrial property system and of WIPO since it was now clear that process of revision was linked to the conclusion of the GATT negotiations. Under the circumstances, Cuba said, WIPO was running the risk of losing its position as the appropriate organisation for dealing with the problems of intellectual property. The report of the meetings also showed that Brazil, speaking on the patent harmonisation proposals and programme, expressed its concern that the Paris convention revision process had been suspended for the time being, while harmonisation of patent law issue was being promoted to a rapid conclusion. When examining the possibility of harmonisation, account had to be taken of the social and economic structure of each country. In Europe patent law harmonisation had been achieved only recently. Important differences still existed between industrial and third world countries, and it was not clear whether all the provisions of the draft patent law harmonisation treaty were in the interests of the third world countries. The latter had to be convinced that it would be in their interest to adhere. (The WIPO biennium programme provides for an information meeting of experts of the third world to precede the normal consultative meeting of experts to meet in 1990 and if needed to hold another session early in 1991, and for the diplomatic conference to meet in second half of 1991). Brazil said that the third world experts meeting should be not only for information but also to enable an evaluation of the impact of the proposed harmonisation on the economic of the third world countries. The diplomatic conference should be convened only after these preliminary steps. Statements by other third world countries also took a cautious view of the demand for a 1991 meeting, even while supporting the proposals of the WIPO secretariat. Some third world sources noted that there was little confrontation or tension between third world and industrial countries on the patent harmonisation or dispute settlement proposals. The issue of revision of Paris convention, which the U.S. and others blocked, was largely dealt with at the consultation meetings before the WIPO governing body, and was thus open only to the signatories of the Paris convention. While some third world sources saw the lack of tension as suggesting as something positive, it was clear that the U.S. and other industrial nations while pressing with their objectives in the Uruguay round are keeping their options open. They want to keep alive the harmonisation and dispute settlement ideas in WIPO, so that they could take it up in WIPO if their GATT efforts failed or if third world countries ultimately decided not to join any such Uruguay round agreements and block their incorporation into GATT. But on Paris convention revision, where any WIPO work might be to their disadvantage, particularly if the compromises being talked about in the WIPO context become a reality, they made sure that WIPO work is put into deep freeze.