The Patent Law harmony

S K Arya

Keeping in view of the fact that there are highly divergent interests and priorities of developed and developing countries, manoeuvring of MNCs for harmonisation of patent laws has been a point of contention for a long time. Developing countries have pursued adequate flexibilities against dictates of the developed world that is demanding to enact one uniform patent law.

TRIPS under WTO has much more to offer the developing world. At the same time, WIPO is fully engaged in negotiating harmonisation of patent to bring on international patent system. As it is known, Uruguay Round negotiations led to Agreement of TRIPS. Paris Convention led to Patent Harmonisation Treaty in 1985, but remained inconclusive in the conference held in Hague in the year 1991. On account of exhaustive discussions which took place in the conference, it led to subjects like patentability, protection, rights, were incorporated into the Agreement on TRIPS. By virtue of this scenario, WIPO and TRIPS are to be discussed together and not in isolation.

National legislations are being worked out by different countries keeping in view their own priorities. Simultaneously, WIPO's Harmonisation Treaty was revived in the year 1995 and 2000 as Patent Law Treaty (PLT). They have been working remove the loopholes in patent laws being adopted by different countries. This has become a sort of continuous process, which has ultimately given rise to the Substantive Patent Law Treaty (SPLT).

Substantive Patent Law Treaty

Provisions of a draft SPLT was considered in the 10th Session of the Standing Committee on the Law of Patents, WIPO in 2004. The story does not end here. Instead, it is the beginning of whether or not the adoption of patent laws through SPLT will give rise to TRIPS PLUS regime. Proposals on harmonisation of patents has never been easy to swallow because of severe differences between the negotiating countries, for that matter even United States is in same basket. Discussions on IPRs in GATT, its opposition and again its discussion in WIPO and UNCTAD has always been on the surface in various meetings since 1980 till 1994. In the Agreement on TRIPS, there was a proposal to set minimum standards for patent protection across the board. Yet another effort to harmonise patents was to establish links with the major international conventions like the Paris Convention, Berne Convention and Rome Convention. TRIPS has always provided working relationship between different countries and under WIPO, facilities to be created for mutual recognition of search and examination results of different patent offices like definition of prior art, novelty, inventive step, industrial applicability, sufficiency of disclosure, interpretation of claims etc.

Developing countries are aware of the realities of the negotiations in WIPO, PLT, SPLT. In these negotiations, dominance of the developed world has always remained and developing countries are scrutinised for any minor development in SPLT. Developing countries have been demanding that life form, micro-organisms have to be kept outside the purview of patentability and to be the prerogative of respective governments.

TRIPS vs SPLT

There exist serious conflicts between SPLT, which is aimed at expanding scope of protection and TRIPS, which is more flexibile. Article 27.1 of TRIPS says that patents available for any invention, product or processes in all fields of technologies provided it is new, involves inventive steps, capable of industrial application. TRIPS Agreement to these three criteria has been limited to National Legislation whereas SPLT talks of uniform standards across the countries.

Further Article 27.2 of TRIPS goes to the extent for exclusion from patentability when it comes to commercial exploitation, morality, protection of human animals and even plant life, health and damages to the environment.

Article 27.3 of TRIPS goes further to protect plants and animals by diagnostic, therapeutic and surgical methods. SPLT on the other hand is vague in terms of discoveries and talks of aesthetic creations. Technical character of the invention is highly debatable and there is no consensus on this.

The concept of industrial application is also very different for different countries, especially on biotechnological inventions.

On the prior article, TRIPS Agreement is silent, thus giving leverage to the patent office to determine the standards as it suits the country. SPLT defines it like information made available to public anywhere in the world in any form. It has its own advantages and disadvantages, India of course, is in an advantageous position since number of oral information outlets are prevalent in this country.

Traditional knowledge and biological resources have given rise to the term "disclosure norms". Agreements on TRIPS do not agree with Convention of Biological Diversity (CBD), which recognises the rights of the state and traditional knowledge over their genetic resources and knowledge respectively. Patenting of inventions by use of biological resources and traditional knowledge has been in controversy for a long time. The developed world wants this issue to be taken up in WIPO's Inter-Governmental Committee on Intellectual Properties and Genetic Resources, Traditional Knowledge and Folklores established in 2000. After all these controversies, agreements and disagreements, one important development which has been globally recognised is the importance of "disclosing source" and "country of origin" of genetic resources and traditional knowledge in the patent application.

WIPO's harmonisation plans and TRIPS flexibility concerns of the developing countries are moving side by side. The process received further impetus in declaration on TRIPS and Public Health at the Doha Ministerial Conference in November 2001. Implementation of Doha Declaration at National Level and its acceptance at the International Fora vis-à-vis signing of SPLT is moving through a very crucial process. At the moment co-ordination between the authorities at the national level, busy looking into the nitty-gritty of TRIPS Agreements and those who are in the process of negotiating for signing the SPLT is critical.

(The writer is Joint Director, IDMA, New Delhi)