The World Intellectual Property Organization’s (WIPO) Twenty-Second session of the Standing Committee on the Law of Patents (SCP) will be convened from 27 July 2015 to 31 July 2015 in Geneva, Switzerland. For consideration of the Committee, the Group of Latin American and Caribbean Countries (GRULAC) have submitted a proposal entitled, Revision of 1979 WIPO Model Law for Developing Countries on Inventions (SCP/22/5). The proponents of the submission intend for this paper to be discussed under Agenda Item 7 – Other Issues – which will also include a treatment of the following topics: Exceptions and limitations to patent rights, Patents and health, Confidentiality of communications between clients and their patent advisors and transfer of technology.
In contrast to the coercive, opaque approaches to crafting patent standards through secret trade agreements, the GRULAC proposal addresses the question of patent norms in an open, multilateral forum, the WIPO Standing Committee on the Law of Patents.
The background section of the GRULAC proposal on revising the 1979 WIPO Model Law for Developing Countries on Inventions notes:
1. In the two 2014 meetings of the SCP held in January and November last year, the GRULAC proposed to engage in discussions on the revision of the 1979 WIPO Model Law for Developing Countries on Inventions, taking into consideration the following aspects, among other issues:
i. The availability of funds in the 2014-2015 Program and Budget to carry out “progress on the revision of the Patent Model Law for developing countries and LDCs”;
ii. The relevance of such an exercise in addressing the main chapters related to patent law in a comprehensive and holistic manner;
iii. The need to respond to the increasing demand from Members States for legislative and policy assistance in line with the Development Agenda Recommendations 13 and 14;
iv. The opportunity to update a document from the 70s to reflect changes occurred after that period in the patent law area, in particular the entry into force of the TRIPS Agreement in 1995 and the implementation of its provisions in national legislations; and
v. The usefulness of a revised document that would be the basis for consideration of Member States when updating or reviewing their patent legislations.
For context, Development Agenda Recommendations 13 and 14 state:
13. WIPO’s legislative assistance shall be, inter alia, development-oriented and demand-driven, taking into account the priorities and the special needs of developing countries, especially LDCs, as well as the different levels of development of Member States and activities should include time frames for completion.
14. Within the framework of the agreement between WIPO and the WTO, WIPO shall make available advice to developing countries and LDCs, on the implementation and operation of the rights and obligations and the understanding and use of flexibilities contained in the TRIPS Agreement.
In the proposal, GRULAC recalls paragraph 22 of the Chair’s Summary of SCP 21 (November 2014) which notes:
GRULAC suggested that the Secretariat prepare draft modalities and terms of reference for the revision of the WIPO Model Law for Developing Countries on Inventions of 1979. Some delegations stated that the current five substantive agenda items that reflected a balance of different priorities should be maintained. The Chair noted that the proposal by GRULAC could be presented and discussed at the next session.
As a decision point for SCP 22, GRULAC proposes the following:
3. Following this guideline, the GRULAC would like to hear Members’ views on this approach and based on comments received, propose that the SCP 22 take the following decision:
The SCP requested WIPO Secretariat to allocate the funds necessary to carry on the “Revision of the 1979 WIPO Model Law for Developing Countries on Inventions” in the 2016-2017 Program and Budget and to prepare for SCP 23 a proposal for consideration of Member States on the terms of reference and modalities that such a revision could follow.
4. It is worth recalling that Members States will be able to intervene and participate in this process as usual and the final product will not constitute a binding document.
The next session of WIPO’s Programme and Budget Committee is meeting next week (13 July 2015 to 17 July 2015), two weeks prior to the WIPO SCP. As the GRULAC proposal references the 2016-2017 biennium, it is possible that this proposal will be the subject of consideration at next week’s Programme and Budget Committee.
The 1979 WIPO Model Law for Developing Countries on Inventions
The preamble to the 1979 WIPO Model Law for Developing Countries on Inventions provides a fascinating history of the 1979 Model Law’s antecedents.
The preamble notes,
1. In 1965, the United International Bureaux for the Protection of Intellectual Property (BIRPI), the predecessor of the World Intellectual Property Organization (WIPO), published a Model Law for Developing Countries on Inventions. About ten years later, the need was felt for a revision of this Model Law, in particular because of new trends appearing in the legislation of certain developing countries.
2. Placed under the guidance of the WIPO Permanent Committee for Development Cooperation Related to Industrial Property (hereinafter “the Permanent Committee”), the work on the revision of the BIRPI Model Law began in 1974. A Working Group on the Model Law for Developing Countries on Inventions and Know-How (hereinafter “the Working Group”) was established and held eight sessions (November 1974, May 1975, November 1975, June 1976, November/December 1976, June 1977, May 1978 and March 1979).
3. The Working Group was composed of experts, acting in their personal capacities, from a certain number of countries and of observers representing a certain number of intergovernmental organizations and international non-governmental organizations. The experts had been appointed by the International Bureau of WIPO after consultation with the interested Governments. Experts from the following countries participated at sessions of the Working Group: Algeria, Argentina, Brazil, Cameroon, Cuba, Egypt, France, Germany (Federal Republic of’), Hungary. Indonesia. Israel. Kenya, Mexico. Poland, Soviet Union, Spain, Sri Lanka, Tunisia, United Kingdom. United States of America, Yugoslavia, Zaire. Observers at sessions of the Working Group have been delegated by : the United Nations (UN), the United Nations Conference on Trade and Development (UNCTAD), the United Nations Industrial Development Organization (UNIDO), the International Labour Organization (ILO); the following intergovernmental organizations: African Intellectual Property Organization (OAPI), Industrial Development Centre for Arab States (IDCAS), Permanent Secretariat of the General Treaty on Central American Economic Integration (SIECA), Secretariat of the Cartagena Agreement (Andean Group) ; the following international nongovernmental organizations: Council of European Industrial Federations (CEIF), European Federation of Agents of Industry in Industrial Property (FEMIPI), InterAmerican Association of Industrial Property (ASIPI), Inter-American Bar Association (¡ABA), International Association for the Protection of Industrial Property (1APIP), International Chamber of Commerce (ICC), International Federation of Inventors’ Associations (IFIA), International Federation of Patent Agents (FICPI), Licensing Executives Society (LES), Pacific Industrial Property Association (PIPA), Union of Industries of the European Community (UNICE). A complete list of the experts and other participants appears at the end of the present volume.
Chapter Two of the 1979 WIPO Model Law for Developing Countries on Inventions contains model provisions for Novelty, Inventive Step and Industrial Application; Chapter IX contains model provisions for Non-Voluntary Licences and Chapter X contains model provisions on Exploitation by Government or By Third Persons Authorized by Government.”
If the GRULAC proposal moves forward, it will be interesting to see how WIPO updates the 1979 Model Law to “reflect changes occurred after that period in the patent law area, in particular the entry into force of the TRIPS Agreement in 1995”.
In the 1970s revision, WIPO after consultation with interested governments, appointed the experts (who acted in their personal capacity) in serving on the Working Group that drafted the 1979 Model Law; the experts came from governments, intergovernmental organizations and non-governmental organizations. If there is a reboot of the 1979 WIPO Model Law for Developing Countries on Inventions, will the same process be followed?
The GRULAC proposal to produce a revised WIPO Model Law for the post-TRIPS context is a welcome alternative to the approach conducted in the TPP, TTIP and RCEP negotiations where trade, investment and regulatory norms are crafted in secret.