On Thursday afternoon, 10 July 2025, Knowledge Ecology Interational (KEI) delivered the following statement on agenda item 12(ii), Report from the Standing Committee on the Law of Patents (SCP).
KEI statement on the Standing Committee on the Law of Patents
Thursday afternoon, 10 July 2025
A lot of people have commented about the benefits of the information sessions that have been held at the SCP. Having attended the sessions, I agree, they have been informative.
It is a significant contrast from the SCCR which is struggling with norm setting. The SCP has focused on information sharing.
It is a completely different culture in the two different committees.
One thing that we think would be an interesting presentation for an SCP meeting would be the system in the United States, where if a drug that is in short supply, it can be placed on something called the FDA drug shortage list.
Once a drug is on that list, generic suppliers can basically ignore not only patent rights but regulatory exclusivities.
Importantly it has been used recently for weight loss drugs where a very large number of people throughout the United States have used generic compounded versions of drugs, under this exception.
I really haven’t seen this exception to patent rights discussed before at the SCP.
Going forward, there have been a lot of discussions and negotiations at WHO and other places, on whether or not you should use compulsory or voluntary measures in order to get access to patented inventions or technology transfer.
The Group B countries are all really big on how great voluntary measures are.
But there has been a slowdown in voluntary licensing to the Medicines Patent Pool.
It has been difficult to expand voluntary licensing of medical patents beyond a handful of infectious diseases, and voluntary licensing for patents for noncommunicable diseases have not had much success.
Some people would like to see more work done on the incentives for voluntary licensing.
I think it would be good for the SCP to talk about what the incentives that exist or have been proposed to induce voluntary licenses that serve some social purpose, and if this is something that countries could cooperate on.
Lastly, when people talk about AI, which is the topic that all the IP offices are really focused on right now, on the output side, a lot of patent offices, and I agree with this, do not think that a machine should be considered an inventor.
On the other hand, I think it is pretty obvious that these machines are doing an impressive job of doing things that look like inventions.
In some cases, this can be expensive. Although not exactly the same as for non-AI inventive activity, it is not completely different either.
It would be useful to have some debate about whether there should be a sui generis regime for the outputs (AI inventions) as opposed to just extending the patent system to IP inventions.
The patent system has been designed for activities of human inventors, and everything including the term were always based upon this.
If AI really becomes important in doing things that used to be done by human inventors, it might be a candidate, not for just making the patent system apply to machines as inventors, but considering some type of sui generis regime.
Having a non-norm setting environment at the SCP facilitates having debates about policies, with negotiators have to man the ramparts on some domestic industrial policy position, and thus the SCP might be a good place to have that conversation.