Original Document

FFII WIPO workgroup: Discussing patents with diplomats of developing countries

This evolving page collects information around the project of working with developing countries in order to adopt a position against the abuse of patents. News about this action will be sent to wipo-help list. If you want to contribute, make suggestions, please send a message to the list.

The basic idea

The activity I propose is to contact the diplomatic body of developing countries to propose a joint action against the abusive usage of patents in the international sphere.

The first idea is that this action will consist in writing a declaration demanding the change of practice of WIPO in the process of granting patents. This declaration would be a followup of the Geneva Declaration and would be based on the principles prensented on it.

Contrary to the Geneva Declaration however, this document would contain more detailed, concrete requests. A central one would be to exclude the patentability of software.

What the document/manifest/declaration could contain

In my opinion the non-patentability of software is best defended when coming together with other topics, notably with business methods. Ideally other controversial domains could be included (expand).

I believe also that a new test for patentability could be created: the one that condition the patent to a minimum development cost (TODO: add explanation).

The main argument to be explored in the document is that patents are market barriers, which are particularly harmful to emerging countries trying to develop their industry. We have to make a strong case, based on studies and clear arguments; claiming that if the present trends of US, EU and Japanese patent system are adopted world-wide, it would be hardly possible to develop new industries of in the emerging countries, specially in the high tech sector.

First steps

The first thing I will try to do is to meet diplomats of developing countries and try to find out whether the idea of such an initiative seem interesting to them and get suggestions on which form it could have.

What has been done so far

I August 2007 I had a meeting with the Director of the Department of Intellectual Property of the Brazilian Ministry of Foreign Affairs and the other people in the staff. They showed great interest in establishing a collaboration with the FFII. From what they told I realised that:

  • On the positive side:
    • Basically they agree that patents are almost always a bad thing for developing countries.
    • TRIPS was "sold" as a instrument to foster the development of less developed countries by protecting their inventions. Now it is clear that developing countries had no interest of signing it. They consider TRIPS as an error and they are determined to reject any other initiative trying to reinforce patents further than TRIPS.
    • Software patents were absent in the last proposals of bilateral agreements. They suggested that perhaps US, EU and Japan are trying to reach a better agreement on this issue before trying to impose it to other countries.
  • On the negative side:
    • The main concerns of the department are copyright issues (Brazil is sometimes accused of not severely fighting piracy) and trademarks (so called biopiracy). Besides for drugs, patent issues seems neglected.
    • They don't really care about software patents. No Brazilian company contacted them expressing concerns on that topic. Besides there is actually no software industry (Alberto argues that this is rather a positive side, since that means that there is nobody to block an anti-swpat initiative or law).

From this meeting I concluded that:

  • Fighting against software patents alone is not a good strategy. They are not a priority. They have to be combined with other issues.
  • The case against software patents has to be well documented. We have to show that many industry sectors can be affected.

Next steps

I will try to have approach the diplomat Geneva and the NGO working there, in particular those around the A2K initiative.

Answers to questions I have been asked

1. What do you mean by developing countries?

A. Countries like Brazil, India, China, South Africa. Countries that are able to increase its industry presence in high tech market sectors but that still don't have a strong presence in these sectors.

2. Why did you choose to work with developing countries?

A. Watching the patent issue in a geopolitical perspective, where actors are the nations, it is clear the the developing countries are those who lose the most with the reinforcement of patents. In the developing countries we can find some companies, like Microsoft, Philips, Siemens demanding the strengthening of patents. We can hardly imagine something similar in a developing country. The least developed countries (LDC) are too poor to be concerned about developing their industry (they care however about the drug patents, but that issue is quite distict from the one I am mainly interested in).

3. Why did you chose to work with WIPO?

A. WIPO is of course the most important international entity if we are working with patents.

4. Isn't WIPO in crisis and discredited? Wouldn't it be better to work with WTO groups or to try to influence bilateral agreements?

A. The main aim of the project is organizing the ideas together and making noise, i.e. getting diplomats together and explaining them that patents, as well as the so-called IP in general, serves to maintain the leadership of rich countries more than anything else, and getting them to sign a document in that sense. I think WIPO is the perfect arena for this in particular because it is discredited. In WTO or in the domain of bilateral agreements we have to deal strong political forces on the play, shorter deadlines, and more intricate legal issues. They should be let for a second step. In a sense WIPO is a good playground for developing documents, contacts, and strategies, that could be later used in WTO or the bilateral negociations. Besides, WIPO is fairly democratic, in a sense that non rich countries have more power than in most international institutions.

5. Why didn't you mention drug patents? Aren't they a central issue?

A. I have the opinion that the rhetoric against drug patents, which is mainly "you are rich, please share your wealth/knowledge" hides the main argument we are trying to present, which says "you are cheating by blocking the market for new entrants". But of course drug patents are a very important issue and relevant to many developing countries so we have to find a way to link that question with our priorities. Moreover drug patents is a perfect example of how harmful the so-called IP can be.

6. Wouldn't it be better to focus on software patents alone?

A. One of the our main tasks is to explain the evident increase of (harmful) impact that the software patents will have on all industry sectors. For the moment however software patents are far from being a priority for developing countries, as far as I know. So in order to get these countries to work with us I think it is preferable to consider a wider range of patents, and argue that they have all a strong potential to block the economic growth of those countries. Business methods patents go well together with software patents. I believe that it is easier to explain the potential harm of these kinds of patents than of the software patents. So once a person understand that in one sector it is bad to have patents it is easier to accept that other such sectors exist.

7. Shouldn't we start by trying to get anti-swpat legislation in those countries?

A. I find it harder to do than the present initiative. In Brazil for instance software patents are outlawed but are granted by the patent office, more or less like in EU. I believe that even if the software patents are not outlawed in a developing country, this country can participate in a joint declaration against this kind of patents.

Resources

Overview of WIPO by itself:
http://www.wipo.int/freepublications/en/general/1007/wipo_pub_1007.pdf

Patent Cooperation Treaty (PCT):
http://www.wipo.int/pct/en

Patent Law Treaty (PCT):
http://www.wipo.int/treaties/en/ip/plt

A2K
http://www.access2knowledge.org

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