Asia Pacific Group asks WIPO to initiate exploratory discussions on the Report of the UN High Level Panel on Access to Medicines

On Monday, 11 December 2017, Indonesia, on behalf of the Asia Pacific Group, delivered the following opening statement at the 27th session of the WIPO Standing Committee on the Law of Patents (SCP).

The Asia Pacific Group issued a clarion call exhorting WIPO to initiate exploratory discussions on the Report of the UN High-Level Panel on Access to Medicines (UNHLP).

Mr. Chair,

With regard to patent and health, as the Group has stated in previous session of this committee, we would like to draw the attention of this Committee to the Report of the United Nations Secretary General’s High Level Panel on Access to Medicine. It has specifically explored the policy incoherence between IP, trade and human rights and has made a number of recommendations in this regard. Some of these recommendations are specifically addressed to WIPO. Hence, Asia Pacific Group would like to request the SCP to initiate this exploratory discussion based on this important report. This committee should ensure that studies on the constraints faced by developing countries and LDCs in making full use of patent flexibilities and their impacts on access to affordable and essential medicines in developing countries and LDCs must involve the UNDP which facilitated the UN High Level Panel Report.

The full intervention of the Asia Pacific Group is reproduced below.

Opening Statement by the Republic of Indonesia  on behalf of the Asia & the Pacific Group at the 27th session of the SCP December 2017

Mr. Chair,

Indonesia is honored to deliver this statement on behalf of the Asia and the Pacific Group.

In this opportunity, the Group would like to congratulate you, and the vice chairs, for your election as Chair and Vice Chairs of this important Committee. Allow us to express our confidence in your experience and leadership skills. We are hopeful that you will be able to guide this session and the upcoming session of the SCP towards successful outcomes. The group would also like to put on record its appreciation for the hard work put in by the WIPO Secretariat in preparation for this meeting.

The Asia and the Pacific Group notes that even when minimum international standards of patent protection were set out by the Paris Convention and the TRIPS Agreement, the patent laws essentially remain territorial.

As a result, countries have significant room or flexibility to formulate domestic patent laws. Maintaining this flexibility is critical for policy planners to craft, amend or delay domestic patent laws in accordance with national development priorities and social and economic realities.

TRIPS flexibilities take into consideration these differences. It allows governments – especially in countries with limited resources – the necessary policy space to meet their health needs and at the same time foster innovation. Hence, the work of this committee is very important in creating a balance between the rights of patent owners and the larger public interest particularly in the area of public health, technology transfer and patent related flexibilities.

Members of the Asia and the Pacific group will constructively participate and contribute towards a productive discussion on these issues.

Members of the Asia and the Pacific Group are looking forward to the information exchange on publicly accessible databases on patent information status and data on medicines and vaccines; to the sharing session on patents and other related issues on access to medicine; to the information exchange on cooperation between patent offices in search and examination; to the sharing session on examples and cases relating to inventive step; to the sharing session on the experiences of Member States in implementing the confidentiality of communication between clients and their patent advisors; as well as to the sharing session on Patent Law Provisions that contributed to effective transfer of technology.

Member of the Asia and the Pacific Group are hopeful that the information exchanges sessions and the sharing sessions that will be held in this session of the SCP will provide better understanding to improve and further enhance the efficiency of the current patent system in a manner sensitive to the diverse needs of the Member States.

We would also like to thank the Secretariat for Document SCP/27/2 on the Report on the International Patent System and encourage that such practice to update the SCP

Mr. Chair,

The Group looks forward to the discussion on exceptions and limitations to patent rights. We would like to thank the Secretariat for the Draft Reference Document on Exceptions Documents regarding acts for obtaining regulatory approval from Authorities, document SCP/27/3 and its summary. The Asia and the Pacific Group looks forward to the presentation of the draft reference and hope that work on the draft would be continued until completion.

The Asia and the Pacific Groups appreciates the additional submissions by members and observers to supplement the document SCP/26/5 on the study of constraints faced by developing countries and LDCs in making full use of patent flexibilities reflected in document SCP/27/6.

The submissions and the additional submissions in the said document ensure WIPO’s technical assistance in designing national patent laws or national IP strategies taking these constraints into consideration and provide assistance on how developing countries can overcome such constraints and make full use of the available flexibilities.

With regard to patent and health, as the Group has stated in previous session of this committee, we would like to draw the attention of this Committee to the Report of the United Nations Secretary General’s High Level Panel on Access to Medicine. It has specifically explored the policy incoherence between IP, trade and human rights and has made a number of recommendations in this regard. Some of these recommendations are specifically addressed to WIPO. Hence, Asia Pacific Group would like to request the SCP to initiate this exploratory discussion based on this important report.

This committee should ensure that studies on the constraints faced by developing countries and LDCs in making full use of patent flexibilities and their impacts on access to affordable and essential medicines in developing countries and LDCs must involve the UNDP which facilitated the UN High Level Panel Report. The Group has taken note the revised proposal by the Delegation of Canada to conduct a review of existing research on patents and access to medical products and health technologies,the Group is looking forward to the discussion on the said proposal.

The Asia and the Pacific Group would like to draw attentions to the fact that a protocol amending the WTO TRIPS Agreement that would enable developing countries with insufficient or no manufacturing capacities in the pharmaceutical sector to import cheaper generic medicines produced under compulsory licencing finally came into force on Monday, 23 January.

Under paragraph 6 of the Doha Declaration on the TRIPS Agreement and Public Health of 2001, Ministers recognised that “WTO Members with insufficient or no manufacturing capacities in the pharmaceutical sector could face difficulties in making effective use of compulsory licensing under the TRIPS Agreement.”

It is an extremely important amendment that gives legal certainty that medicines can be exported at reasonable prices to satisfy the needs of countries with no pharmaceutical production capacity, or those with limited capacity, we hope this committee could also consider a work programme to support Members’ commitment and brought this important measure into force in accordance with the mandate of the Committee and the organization.

Mr. Chair

Asia Pacific Group supports the idea that SCP should have discussions on the opposition systems, which is an important issue in the Agenda Item nine. The Committee should give equal prominence to the issue of opposition systems in the SCP work as patent quality. There should be a work programme on opposition systems that could, comprise a questionnaire survey on the different kinds of opposition mechanisms available in a country, the procedures and modalities for their use, constraints in using the opposition system effectively and how such opposition systems could be strengthened and their constraints removed.

Our group welcomes the updated responses reflected in documents SCP/27/4REV and SCP/27/5REV of the the Questionnaire on the term Quality of Patents and Cooperation between Patent Offices in Search and Examination.

The Asia & the Pacific group is of the view that the SCP should arrive at a common understanding on what is meant by quality of patents – does it mean efficiency of patent offices in disposing patent applications, or does it mean the quality of patents granted that is how to ensure that patent offices do not grant patents of questionable validity. Our group would like to request the WIPO Secretariat to provide regular information to the member States about the outcome of patent applications in different jurisdictions as well as outcomes of opposition procedures.

Article 29.2 of TRIPS Agreement states that a Party to the TRIPS Agreement may require patent applicants to provide information about the applicants corresponding foreign applications and grants. In this regard the Secretariat should conduct a study on the extent to which Article 29.2 of TRIPS is implemented in different countries and how its broader use may be promoted to improve patent quality.

Mr. Chair,

Our group hopes that the sharing session on the experiences in implementing the confidentiality of communication between clients and their patent advisors would further guide us to better understanding and would be able to guide this committee with regard to the issue and further enhance the efficiency of the current patent system in a manner sensitive to the diverse needs and diverse legal system of the Member States.

Mr. Chair

Members of the Group will intervene in their national capacity on specific agenda items. We look forward to a productive session under your able guidance.

I thank you.

thiru