Among the four preliminary studies being discussed by WIPO at the 13th Session of the Standing Committee on the Law of Patents (SCP) this week is a study titled Dissemination of Patent Information. This is an informative and useful background document regarding the theory of patents as a source of information and potential pathways to access such information. The study also provides useful details regarding WIPO’s current information services and planned projects.

There are three areas related to the study which warrant critical comment. The first is the balance between theory and reality. The second is the misinterpretation of the development recommendations with respect to patent information. And finally, the failure of the study to address the issue of transparency in the patent system and of patent information.

Theory versus reality

The main challenge with this study is that there is just a bit too much theory compared to the reality especially in developing countries. In the first 71 paragraphs of the study, theoretical availability of patent information is confused with dissemination of patent information. Indeed, the study itself, belatedly, recognises the distinction between the theory of patent law and disclosure and the reality of accessing useful patent information in paragraph 72. Here the study states that availability of information does not always mean it is accessible in practical terms. Based on the figures provided in the study, in practical terms, accessibility of patent information is quite poor. Full text patent documents in electronic form is only available in a minority of countries.

Development agenda and patent information: History lessons might be needed

There are two important points to make with respect to the study’s characterisation of the Development Agenda. First, it is quite doubtful that the recommendations in the Development Agenda prove the role of patent information in development as the study suggests in paragraph 40. What the related Development Agenda recommendations demonstrate is rather the failure of patent information to play the theoretical role of being a great source of information in developing countries. Hence, the Development Agenda proposals constitute recommendations for reform in WIPO to try and make patent information relevant to development. How important a role patent information plays in development can only be shown when these reforms and other measures are put in place.

The second point worth making with respect to the study’s approach to the Development Agenda is with respect to the erroneous suggestion that Recommendation 19 of the Development Agenda is about dissemination of patent information. While dissemination of useful patent information may be important in the context of access to knowledge , Recommendation 19 is about something much more fundamental, the idea that WIPO should consider evolving norms, for example, for a treaty on access to knowledge. An example is the proposal for such a treaty available on Knowledge Ecology International’s (KEI) website. Probably, a time has come to write out the negotiating history of the WIPO Development Agenda to explain what problem or challenge each recommendation was aimed to address as well as capture the overall idea that the Development Agenda is about reform which is what we need to see.

One practical issue to address – transparency

There is one practical issue which could have added alot of value if it was addressed in the study. This is the issue of transparency in the patent system and information.

The study usefully highlights the WHO global strategy on essential health research and the issue of patent-related information. The main issue in the WHO context is transparency. Even for an international organisation like WHO with the help of the European Patent Office, and other major medical agencies such as MSF, determining the patent status of specific essential health products has proved a hard task. It is not that WHO and MSF do not have access to the internet or have not striven to do patent searches, rather it is because the system suffers from an important transparency deficit which is something the SCP should be thinking about. What this means in concrete terms is that while WIPO’s recent efforts are welcome and will help improve the situation, a transparency based approach is likely to achieve much more for most stakeholders.

Indeed, an approach based on transparency would also have led the study authors to the issue of disclosure of origin of genetic resources and associated traditional knowledge used in inventions. The proposals on this subject at the WTO as well as at WIPO itself are, to a large extend, aimed at improving the transparency of the patent system and patent information.