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| Latha Jishnu: The WIPO knife edge | | Officials are working at cross purposes in the apex patent body and undermining India?s position on critical issues |
| Latha Jishnu / New Delhi Nov 26, 2009, 00:28 IST |
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For well over a decade, the chirpy sounding acronym for the WTO’s agreement on intellectual property (IP) rights, TRIPS, has rolled familiarly off tongues albeit with fear and loathing in the developing world. To the poor nations of every classification, from the emerging economies to the least developed countries, TRIPS embodied all that was wrong with the global trading system because it placed an additional burden on their development plans. But there has been a marked change in perception of late.
TRIPS, with its innate flexibilities and the embedding of the Doha development agenda, is emerging as a less malignant beast. The bigger danger lurking on the horizon, according to several groups of developing countries, is WIPO, or the World Intellectual Property Organisation, a UN body that they say is baring its fangs. WIPO’s harmonisation agenda, according to a vocal group led by Brazil, Argentina and Algeria among others, is replacing TRIPS as the new instrument of a restrictive world order by changing the architecture of knowledge-sharing and IP protection. The IP debate, in fact, has shifted quite markedly from the WTO to WIPO where director-general Francis Gurry is pushing reforms aimed at bringing about a harmonisation process that the developing countries view with misgiving if not outright distrust.
Recently, Gurry was in Delhi on a high-profile visit where he explained, in a series of media interviews and a keynote speech at a conference on creativity and inventions, what WIPO was attempting to do. Gurry is an old WIPO hand, a man who has spent nearly 25 years with this specialised UN agency, and his major project is to reform the Patent Cooperation Treaty (PCT) which has been signed by its 141 members. As the WIPO chief sees it, there are compelling reasons for overhauling PCT. Primarily it is to unclog the system which is choked with some four million applications. Then he wants to harmonise national search and examination procedures.
Should developing countries object to such laudable goals? The general fear is that a reformed PCT, or PCT II, would undermine the right of individual governments to formulate their own IP regimes. India, for instance, has come under intense western pressure for a certain section in its Patent Act that specifies what kind of drugs are not patentable, and a sizable section of opinion here believes PCT II will undermine such laws.
WIPO officials have been insisting that harmonisation and reform of PCT are not intended to bring about changes in substantive matters of patentability or to take away the rights of sovereign governments to grant or refuse patents. But critics of the Gurry plan insist that the underlying idea is to introduce a system of global patents since WIPO has, to all intents and purposes, accepted much of the reform agenda put forth by the US Patent and Trademark Office (USPTO). What that American plan envisages is an elimination of search and examination in the national phase, and it provides that applications which have been granted patents by two patent authorities will be automatically eligible for patents in all member-states.
The point is IP cannot be a one-size-fits-all regime. And this clearly is India’s stance. If reiteration was needed, it came at the Delhi conference when Commerce Minister Anand Sharma made a sharp rebuttal to Gurry’s harmonisation theme. Sharma, whose ministry looks after patent matters through the Department of Industrial Policy and Promotion (DIPP), made it clear that the concerns of developing countries were different from those of the industrialised world. “You were talking of balance, how to create a balance in this world where there is no uniformity (of processes and regulations). It’s not expected to be,” he stated rather bluntly. So, although India believes in strong IP protection and has established a huge institutional mechanism to enforce and protect IP rights, it also has its concerns as a developing country.
The problem is that in WIPO India’s stance is not so unequivocal. At times, the ministry does not send officials to crucial meetings of WIPO and when it does, there is a clear divergence of views between them and officials at India’s permanent mission to the UN. While the latter goes by India’s officially stated position, DIPP officials tend to have their own interpretation on issues such as PCT reforms, technology transfer for coping with climate change and traditional knowledge protection. In an organisation where senior Indian officials are present in strength — Gurry’s chef de cabinet is NN Prasad, a joint secretary in DIPP who has been sent on a two-year deputation — this has been a cause for concern, specially since the divergence has alienated India from its traditional allies in this forum.
The grapevine has it that a deeply concerned official at the UN mission has written to the cabinet secretariat listing the omissions and commissions of officials representing India’s interests. It would seem that commerce ministry politics rather than the challenge of difficult international negotiations will be the undoing of the country.
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