US intervention at WIPO Committee on Development and Intellectual Property: Patent related flexibilities

This was the first intervention delivered by the United States of America during last week's discussion at the 10th session of World Intellectual Property Organization's Committee on Development and Intellectual Property on the item of patent related flexibilities.

US intervention #1 on CDIP/10/11

• The United States would like to express its appreciation to the Secretariat for its preparation of the document CDIP/10/11. We have several comments on the patent-related flexibilities proposed to be studied at CDIP.

• As we mentioned in our comments, at least two of the four flexibilities, that is exclusions from patentability of plants and software-related inventions, have been studied extensively and thoroughly at SCP. The SCP studies addressed the exclusions from the perspectives of their policy objectives and role, the international legal framework and provisions contained in national and regional laws. MS can draw their own conclusions regarding using (or not) these flexibilities for their national needs. Therefore, we would not support any further studies on these two exclusions.

• The DAG proposal to analyze the exclusions from patentability of plants and software-related inventions more “comprehensively” and study their developmental impact is too prescriptive and presumptive of the outcome. Member States may, in fact, believe that providing reliable incentives for innovation through the patent system is the best method to achieve the same developmental and public policy objectives that the DAG notes as being important. There is ample evidence to show that the patent system is a key component in industrial development. Without the incentives provided by patent protection, few companies would invest in life-saving medicines, much less those that enhance quality of life for those with chronic conditions. Using the patent system to stimulate advances in biotechnology and agriculture is the best route to food security. We believe that more work needs to be done on measuring the positive role that IP plays in economic development.

• As we also mentioned in our comments, the United States favors organizing and making more accessible the studies and resources on flexibilities that WIPO has already produced in the subject matter committees and would encourage the Secretariat to transmit those studies to CDIP. We would also encourage the Secretariat to share with Member States the information collected by WTO on the issue of patent-related flexibilities.

• In summary, the United States would oppose any work that would not be faithful to the full scope of Development Agenda recommendation 14, that is would shift the balance towards flexibilities at the expense of rights and obligations; would jeopardize the neutrality and objectivity of the Secretariat or sovereignty of Member States; would place WIPO in the position of criticizing other international agreements on the ground that they constrain the use of TRIPS flexibilities; or would be duplicative and not respect the subject matter expertise of other committees.

• With respect to the suggestion for CDIP to analyze “how the exclusion of software from patentability has contributed to the development of the software industry in different countries” made by some delegation, the premise of this suggestion is flawed and it presupposes the outcome. One of the problems with the premise here is that the software industry is the only one relying on software patents. The "software industry" primarily relies on copyright protection. Software-related patents have many applications, e.g. in automotive, medical, telecommunications and other industries. So the software industry is not the only
industry affected by software-related inventions. We can’t support the additional studies of this flexibility.

The second intervention the US delivered on this topic dealt with the exclusion of software from patentability.

US Intervention #2:
• With respect to the suggestion for CDIP to analyze “how the exclusion of software from patentability has contributed to the development of the software industry in different countries” made by some delegation, the premise of this suggestion is flawed and it presupposes the outcome. One of the problems with the premise here is that the software industry is the only one relying on software patents. The "software industry" primarily relies on copyright protection. Software-related patents have many applications, e.g. in automotive, medical, telecommunications and other industries. So the software industry is not the only
industry affected by software-related inventions. We can’t support the additional studies of this flexibility.