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Standing Committee on the Law of Patents E SCP/17 /13 ORIGINAL: ENGLISH DATE: MA Y 21 , 201 2 Standing Committee on the Law of Patents Seventeenth Session Geneva, December 5 to 9, 2011 REPORT adopted by the Standing Committee INTRODUCTION 1. The Standing Committee on the Law of Patents (“the Committee” or “the SCP”) held its seventeenth session in Geneva from December 5 to 9, 2011. 2. The following States members of WIPO and/or the Paris Union were represented: Afghanistan, Algeria, Argentina, Australia, Austria, Azerbaijan, Bangladesh, Bahrain, Barbados, Belgium, Bosnia and Herzegovina, Brazil, Burundi, Cameroon, Canada, Chile, China, Congo, Costa Rica, Cyprus, Czech Republic, Democratic People’s Republic of Korea, Denmark, Dominican Republic, Ecuador, Egypt, El Salvador, Estonia, Finland, France, Georgia, Germany, Greece, Holy See, Honduras, India, Indonesia, Iraq, Ireland, Italy, Japan, Jordan, Kuwait, Lithuania, Malaysia, Mexico, Morocco, Nepal, Netherlands, Nigeria, Norway, Pakistan, Panama, Peru, Philippines, Poland, Portugal, Republic of Korea, Republic of Moldova, Romania, Russian Federation, Saudi Arabia, Serbia, Singapore, Slovenia, South Africa, Spain, Sudan, Sweden, Switzerland, Thailand, The former Yugoslav Republic of Macedonia, Togo, Trinidad and Tobago, Turkey, Uganda, Ukraine, United Kingdom, United States of America, Uruguay, Viet Nam, Zambia and Zimbabwe (83). 3. Representatives of the African Union (AU), the Cooperation Council for the Arab States of the Gulf (GCC), the Eurasian Patent Office (EAPO), the European Patent Office (EPO), the European Union (EU), South Centre (SC), the World Health Organization (WHO) and the World Trade Organization (WTO) took part in the meeting in an observer capacity (8). SCP/17/13 page 2 4. Representatives of the following non-governmental organizations took part in the meeting in an observer capacity: American Bar Association (ABA), American Intellectual Property Law Association (AIPLA), Asian Patent Attorneys Association (APAA), Centre for International Intellectual Property Studies (CEIPI), Chartered Institute of Patent Attorneys (CIPA), Civil Society Coalition (CSC), Computer and Communications Industry Association (CCIA), European Law Students’ Association (ELSA International), German Association for Industrial Property and Copyright (GRUR), Institute of Professional Representatives before the European Patent Office (EPI), Intellectual Property Institute of Canada (IPIC), Intellectual Property Owners Association (IPO), International Association for the Protection of Intellectual Property (AIPPI), International Centre for Trade and Sustainable Development (ICTSD), International Chamber of Commerce (ICC), International Federation of Intellectual Property Attorneys (FICPI), International Federation of Pharmaceutical Manufacturers Association (IFPMA), IP Federation, Japan Patent Attorneys Association (JPAA), Knowledge Ecology International, Inc. (KEI), Medicines Patent Pool (MPP) and Médecins sans Frontières (MSF) (22). 5. The list of participants is contained in the Annex to this report. 6. The following documents prepared by the Secretariat had been submitted to the SCP prior to the session: “Transfer of Technology” (SCP/14/4 Rev.2), “Quality of Patents: Comments received from Members and Observers of the Standing Committee on the Law of Patents (SCP)” (SCP/17/INF/2), “Patents and Health: Comments received from Members and Observers of the Standing Committee on the Law of Patents (SCP)” (SCP/17/INF/3), “Report on the International Patent System: Revised Annex II of document SCP/12/3 Rev.2” (SCP/17/2), “Responses to the Questionnaire on Exceptions and Limitations to Patent Rights” (SCP/17/3), “Addendum to the Compilation of Responses to the Questionnaire on Exceptions and Limitations to Patent Rights” (SCP/17/3 Add.), “WIPO Activities on Patents and Health” (SCP/17/4), “Information on Cross-border Aspects of Confidentiality of Communications between Clients and Patent Advisors” (SCP/17/5), “Revised Rules of Procedure” (SCP/17/6), “Proposal by the Delegation of Denmark” (SCP/17/7), “Revised Proposal from the Delegations of Canada and the United Kingdom” (SCP/17/8), “Opposition Systems” (SCP/17/9), and “Addendum to Opposition Systems” (SCP/17/9 Add.). 7. In addition, the following documents prepared by the Secretariat were also considered by the Committee: “Revised Rules of Procedure (SCP/17/6 Rev.), “Proposal by the Delegation of the United States of America” (SCP/17/10), and “Patents and Health: Proposal by the Delegation of the United States of America” (SCP/17/11). 8. The following related documents were also considered by the Committee: “Proposal submitted by the Delegation of South Africa on behalf of the African Group and the Development Agenda Group” (SCP/16/7), “Corrigendum: Proposal submitted by the Delegation of South Africa on behalf of the African Group and the Development Agenda Group” (SCP/16/7 Corr.), “Proposal by the Delegations of Canada and the United Kingdom” (SCP/16/5), “Proposal from Brazil” (SCP/14/7), “Report on the International Patent System” (SCP/12/3 Rev.2) and “Addendum to the Report on the International Patent System” (SCP/12/3 Rev.2 Add.). 9. The Secretariat noted the interventions made and recorded them on tape. This report reflects all the observations made. AGENDA ITEM 1: OPENING OF THE SESSION 10. The seventeenth session of the Standing Committee on the Law of Patents (SCP) was opened by Mr. Francis Gurry, Director General, who welcomed the participants. Mr. Philippe Baechtold (WIPO) acted as Secretary. SCP/17/13 page 3 AGENDA ITEM 2: ADOPTION OF THE REVISED DRAFT AGENDA 11. The SCP adopted the revised draft agenda (document SCP/17/1 Prov.2) as proposed. AGENDA ITEM 3: ADOPTION OF THE DRAFT REPORT OF THE SIXTEENTH SESSION 12. The Committee adopted the draft report of its sixteenth session (document SCP/16/9 Prov.2) as proposed. AGENDA ITEM 4: REPORT ON THE INTERNATIONAL PATENT SYSTEM 13. The discussions were based on documents SCP/12/3 Rev.2, SCP/12/3 Rev.2 Add., SCP/17/2 and 2 Add. 14. The SCP agreed that this agenda item would remain on the agenda of the next session of the SCP. Document SCP/17/2 will be updated based on the comments received from Member States. GENERAL DECLARATIONS 15. The Delegation of Algeria, speaking on behalf of the Development Agenda Group (DAG), stated that the questions on the agenda for the seventeenth session of the SCP would enable participants to have a very fruitful exchange of views on a wide range of subjects related to patents. Discussions within the Committee were of particular interest for the members of the DAG given that intellectual property rights related to patents had a very considerable and direct impact on innovation, economic growth and social development. The DAG continued to urge that in the work of the SCP, the fundamental balance which should be maintained in the patent system between the private interests of right holders and the interests of the broader public, should be strengthened. That was why the activities of the SCP should help to facilitate transfer and dissemination of technology in responding to the public interest related thereto, and to ensure that the patent system contributed to promoting progress and innovation. The Delegation observed that the consideration of the questions relating to exceptions and limitations, transfer of technology, anti-competitive practices and patents and health shed further light on challenges developing countries were facing regarding economic and social development, and furthermore contributed to a better understanding of the complex nature of the patent system. In so doing, it would help to understand how better to adapt the system and adjust it to respond to national development needs. The DAG was convinced that it was more essential now than in the past to make intellectual property a tool for development which would contribute to economic and social growth and development in developing nations. The Delegation welcomed the first contribution of the SCP on its work to the General Assembly on the implementation of the Development Agenda in accordance with the coordination mechanism and modalities for follow-up to the Committee on Development and Intellectual Property (CDIP). That use of the coordination mechanism would enable the SCP to contribute effectively to the real inclusion of the development action plan in all the activities of WIPO. The Delegation had the following preliminary comments on the agenda of the 17 th session of the SCP: first of all, it attached considerable importance to the elements of flexibility provided in the intellectual property system: the recommendations of the Development Agenda meant that that was a fundamental issue for the DAG. The development of the concept of intellectual property and the gradual involvement of developing countries in intellectual property rights had had a direct effect in throwing overboard the dogma that the area of patents and patent law automatically generated innovation. Developing countries were aware of the need to adapt the national patent legislation depending upon their individual economic and social situations and of the importance SCP/17/13 page 4 of exceptions and limitations for countries that had the intention to develop their intellectual property system. Therefore, the Delegation stated that the 17 th session of the SCP should make it possible to advance in considering the proposal by the Delegation of Brazil. The Delegation expected that the questionnaire of the Secretariat and the contributions of other
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