In my earlier writings on World Intellectual Property Organization’s (WIPO) work on patents (e.g., in the paper in 2003 on TRIPS-plus at WIPO with Graham Dutfield and a 2005 paper on Rethinking Innovation and Development)  I characterised WIPO’s Patent Agenda as one driven by a partisan Secretariat (the International Bureau), in industry and ideology-dominated processes and lacking in socio-economic analysis.  Since then, thanks to, among other things, the development agenda process in WIPO and enlightened leadership, a lot has changed.

An ambitious, balanced and forward-looking work programme

To start with, at the 12th Session of the WIPO Standing Committee on the Law of Patents (SCP), WIPO members agreed to an ambitious and forward-looking list of 18 issues as a basis for the organisation’s future programme on Patents. These include: economic impact of the patent system; technology transfer; competition policy and anti-competitive practices; dissemination of patent information; standards and patents; alternative models of innovation; harmonisation of substantive patentability requirements; disclosure of inventions; database on search and examination reports; opposition system; exceptions from patentable subject-matter; limitations to patent rights; research exemption; compulsory licenses; client-attorney privilege; patents and health; relationship between the patent system and the Convention on Biological Diversity (CBD); and the relation between patents and public policy issues.

A work programme on patents in WIPO that seeks to address these issues not only gives the SCP more than enough work to do but also offers something for developed and developing countries as well as a range of non-governmental actors from industry and business through to civil society groups. It is now for every stakeholder to make their case and for the evidence to speak.

Professionalising secretariat

Since 2007, there have been clear signs that the International Bureau of WIPO was at least working to be seen to be a neutral and professional partner to the WIPO Member States and other stakeholders. The constructive role that the International Bureau played in helping Member States agree to the 18 item list is notable. Though fully-fledged socio-economic research is yet to take root in WIPO, professional analysis is clearly taking a foothold. The quality of the Report on the International Patent System (WIPO Doc. SCP/12/3) and the four preliminary studies to be discussed at the SCP’s 13th Session which takes place from 23 – 27 March 2009 (on patents and standards; exceptions and limitations; client-attorney privilege; and dissemination of patent information) is a source of hope going forward. Specific posts on each of these studies will follow. Similar promising signs have been seen in the copyright area as well.

Improvements in the quality of WIPO reports and studies should, as a corollary, force other stakeholders, be it governments or other actors, to also improve the quality of their engagement. The more the International Bureau puts a premium on quality and professionalism the less we will see quackery, pamphleteering and ideological rhetoric at SCP meetings. The appointment of a high calibre and respectable chief economist by the new Director General of WIPO should help to boost this emerging trend.

WIPO as a forum for examining the role of patents in addressing key global challenges

On 13 and 14 July 2009, WIPO will also be holding an international conference on Intellectual Property and Global Challenges. This conference is intended to address the interface between intellectual property (IP) and other areas of public policy particularly the interface between patents and health, environment, climate change, food security and disability. While it is too early to have a clear sense of the quality of speakers, since the programme has not been made available, it is fair to assume that the new administration at WIPO will want to use this conference to stamp WIPO’s imprint on a range of international issues on which WIPO has hitherto been a spectator.

In some sense, a successful conference, coupled with high quality deliberations on issues such as limitations and exceptions at the SCP, might challenge the growing legitimacy of organisations such as the World Health Organization (WIPO) on issues such as patents and health. While I have previously argued, and I still hold the view that organisations such as WHO have a role and need to engage on these issues, time has come for WHO and other UN agencies to demonstrate their relevance to IP debates in the face of a resurgent WIPO.

The jury is still out

There is no doubt that  WIPO’s patent agenda has been changing for the better since our critique in 2003. While substantive patent law harmonisation, which is a legitimate ask by a range of stakeholders, is still on the table, the SCP’s programme reflects a better balance between the interests of various stakeholders in the patent system. The quality of the work of the Secretariat and its facilitative as opposed to partisan role is also notable as is the balance between industry voices and civil society in the SCP debates.

The jury is still out, however. Time will tell if the changes we are seeing constitute systemic changes implying a cultural change in WIPO or whether it is a blip. The work of the economics and statistics team that is being assembled, on patent-related issues, is also something to wait for.