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RR RUEHWEB

DE RUEHGV #0416/01 1551138
ZNR UUUUU ZZH
R 041138Z JUN 09
FM USMISSION GENEVA
TO RUEHC/SECSTATE WASHDC 8478
INFO RUCPDOC/DEPT OF COMMERCE WASHINGTON DC

UNCLAS GENEVA 000416 
 
SIPDIS 
 
STATE FOR EEB, IO/T 
COMMERCE FOR USPTO 
 
E.O. 12958: N/A 
TAGS: ECON KIPR WIPO
SUBJECT: Third Session of the WIPO Committee on 
Development and Intellectual Property 
 
¶1.  SUMMARY:  The 3rd session of the WIPO Committee 
on Development and Intellectual Property (CDIP) 
moved ahead (slowly) in its implementation of 45 
recommendations concerning development and IP. 
These recommendations were approved by the WIPO 
General Assemblies (GA) in October 2007.  In the 
first two sessions of the CDIP, Member States 
approved activities and work programs for 11 
recommendations and initiated discussions on another 
four recommendations.  The focus of discussion in 
the third session included new activities to 
implement eight related recommendations under three 
broad themes:  IP and the Public Domain; IP and 
Competition; and IP, Information and Communications 
Technology (ICTs) and the Digital Divide. Reaching 
agreement on the activities for these eight 
recommendations will allow the WIPO Secretariat to 
seek funding for their implementation during the 
2010/2011 program and budget meetings in the fall. 
Debate also centered on how to coordinate and report 
on development agenda implementation with other WIPO 
committees. 
END SUMMARY. 
 
¶2.  The Third Session of the CDIP was held from 
April 27 to May 1, 2009.  111 Member States and 49 
Observers participated in the meeting.  U.S. 
delegation members were Michael Shapiro, Senior 
Counsel, Office of Intellectual Property Policy and 
Enforcement, USPTO (head of delegation); Neil 
Graham, Attorney Advisor, Office of Intellectual 
Property Policy and Enforcement, USPTO; Carrie 
LaCrosse, Foreign Affairs Officer, Office of 
Intellectual Property Enforcement, U.S. Department 
of State; and Deborah Lashley-Johnson, IP Attache, 
U.S. Mission, Geneva. 
 
¶3.  At the start of the meeting, and per the 
invitation of the Chair of the CDIP (Ambassador 
Trevor Clarke of Barbados), Director General Francis 
Gurry addressed the Committee.  The DG reiterated 
his personal commitment to the Development Agenda, 
and noted that all sectors/divisions of the 
Organization would contribute to ensuring that all 
recommendations are implemented and integrated into 
WIPO?s activities.  He explained that coordination 
of the implementation of the Development Agenda 
would be the responsibility of the Development 
Agenda Coordination Division (DACD), which reports 
directly to him.  The Director General emphasized 
that implementation of the Development Agenda 
recommendations is a shared responsibility of the 
Secretariat and WIPO Member States.  The Director 
General also highlighted the importance of reporting 
and evaluation, and expressed his commitment to 
report to the CDIP annually on the implementation of 
recommendations. 
 
SLOW GOING: Focus on the Past 
----------------------------- 
 
¶4.  Despite the commitment demonstrated by the DG on 
effective implementation and coordination, certain 
delegations engaged in extensive, time-consuming, 
and substantially unproductive discussion of ongoing 
WIPO activities to implement 19 recommendations 
already approved by the 2007 GA for early 
implementation.   India, Egypt, Sri Lanka, and South 
Africa were particularly active in questioning WIPO 
?expert? staff members on these activities, setting 
a contentious tone for the meeting. 
 
¶5.  On day three, discussions opened regarding a 
proposed, new ?thematic approach? to the work of the 
CDIP.  Under the thematic approach, activities 
proposed by the Secretariat to implement identical 
or similar elements of selected GA-approved 
recommendations would be grouped under a single 
theme (such as ?IP and the Public Domain? or ?IP and 
Competition?) and assigned to a single WIPO project 
manager.  The new approach was previewed in two 
informal ?information sessions? in advance of CDIP 
¶3.  Group B (group of industrialized countries), the 
United States and a few other member governments 
intervened to support the new approach, which was 
generally viewed by these countries as time- 
efficient and financially prudent (eliminating 
potential duplicative activities).  However, certain 
developing countries intervened repeatedly to demand 
 
certain procedural and substantive safeguards (to 
ensure that the process remained ?Member State- 
driven" and that the proposed projects would not 
exhaust the recommendations).  In particular, India, 
Pakistan, Sri Lanka, Egypt, Brazil and South Africa 
asserted that for recommendations that had not yet 
been discussed, guarantees were needed to ensure 
that the projects fully and adequately implemented 
the recommendations.  Further, these countries said 
that the new thematic projects were based on 
recommendations that had (for the most part) not yet 
been discussed, and were therefore problematic.  To 
address these concerns, Chairman Clarke tabled his 
own document (?Conditions for Thematic Projects?), 
which appeared to be aimed at closing the discussion 
of the proposed ?thematic approach? and opening the 
discussion of the thematic projects themselves. 
However, contentious debate ensued over the 
document, and the Chairman withdrew his document. 
Nonetheless, general agreement was reached that: (i) 
each recommendation would be discussed first in 
order to agree on the activities for implementation; 
(ii) recommendations that dealt with similar or 
identical activities would be brought under one 
theme, where possible; and (iii) implementation 
would be structured in the form of projects and 
other activities, as appropriate, with the 
understanding that additional activities may be 
proposed. 
 
NEW ACTIVITIES 
-------------- 
¶6.  On days four and five, the Committee finally 
moved forward in its discussion of proposed new 
activities for recommendations under the themes 
concerning IP and the Public Domain; IP and 
Competition; and IP, ICTs and the Digital Divide. 
The US delegation intervened to support the full 
range of the proposed public domain activities, 
including a proposed pilot exercise to establish a 
national traditional knowledge (TK) database to 
prevent the granting of erroneous patents.  In the 
end, the CDIP ?broadly agreed? to move forward on 
the activities to implement the public domain 
thematic project.  However, on the basis of an 
intervention by Brazil, and to US displeasure, this 
component of the project was dropped.  In its place, 
CDIP members instructed the Secretariat to begin a 
survey of existing national TK databases, with a 
longer term view of establishing a WIPO TK portal 
with links to national TK databases. 
 
¶7.  Brazil also tabled a three-part amendment to the 
TK database project to advance within CDIP its 
longstanding proposal (within the WIPO Standing 
Committee on Trademarks, Geographical Indications 
and Industrial Designs, SCT) on the ?Non-Exhaustive 
List of Customary Names Used in Brazil Associated 
with Biodiversity,? which drew a sharp response from 
the US delegation.  Under the proposed amendment, 
the Secretariat would be required to (1) publish 
Brazil?s list of 5,000 names falling into this 
category, (2) conduct an investigation of the 
misappropriation of such names (beginning with cases 
supplied by Brazil, which would be likely to target 
U.S. companies), and (3) prepare a study on the 
?adverse impact? of such misappropriations on 
Brazil?s indigenous populations. 
 
¶8.  In response, the US delegation reminded CDIP 
members that the Brazilian proposal raised complex 
issues of trademark law (such as the territoriality 
of trademarks and diverse national concepts of 
?distinctiveness), which are under active 
consideration in the SCT.  The US went on to say 
that the SCT is the appropriate committee for 
consideration of this proposal because of its 
subject matter expertise.  Finally, the US 
delegation noted that the Brazilian amendment raised 
important issues of how the CDIP would coordinate 
its work with other WIPO committees.  However, 
Brazil was very adamant in having its proposal 
approved by the Committee, arguing that any CDIP 
member could table any amendment to any proposed DA 
implementing activity at any time, without regard to 
the work program of other committees.  Brazil also 
took the Secretariat to task for using ?scarce 
resources? as a pretext for hobbling DA activities 
proposed by Member States (a view later supported by 
 
India and other delegations) and for the 
Secretariat's earlier suggestion that Brazil should 
have tabled a written proposal to give the 
Secretariat and Member States sufficient time to 
review it.  In addition, Brazil threatened to 
withdraw its support for the thematic approach 
entirely, which the Brazilian delegation 
characterized as conditioned on its understanding 
that Member States would be unfettered to propose 
and modify any activity before the CDIP.   The US 
reminded the CDIP that, like all WIPO committees, 
the CDIP was governed, among other things, by 
adopted Rules of Procedure, pointing specifically to 
Rule 21 (governing the tabling of proposals by 
delegations). The US further argued that Brazil?s 
proposal was very complex and dropped on Member 
States without prior notice or a formal written 
submission. 
 
¶9.  With respect to the proposed thematic project on 
"IP and Competition Policy," the US delegation 
intervened to raise general concerns and specific 
questions to this proposal, consistent with 
interagency cleared instructions.  With the 
assurance given by the Secretariat that the project 
would be non-normative in nature, non-duplicative of 
IP related competition activities undertaken in 
other international organizations, and any WIPO 
activities conducted in this area would be on a 
policy-neutral (given lack of an international 
framework and the diversity of views on competition 
policy among countries and regions), the US 
delegation decided not to block consensus on this 
proposal.  However, on the basis of the same 
concerns expressed above, the US intervened to 
oppose a proposal tabled by the delegation of Egypt 
to amend the competition project to include the 
preparation by WIPO of a ?Guide? on anti-competitive 
practices, a proposal that is likely to be re- 
introduced in CDIP 4 at the November 2009 meeting. 
 
¶10.  Late on the last day of the meeting, the CDIP 
took up discussion of a thematic project on the ?IP, 
ICT and the Digital Divide,? which sets forth 
activities to implement three recommendations, 
including Recommendation 19 (which states the goal 
of facilitating ?access to knowledge and technology 
for developing countries and LDCs? as part of WIPO's 
norm setting activities).   The delegation of Egypt, 
supported by India, intervened to request the 
Secretariat to remove Recommendation 19 entirely 
from this thematic project largely because Egypt and 
others argued that the concept of facilitating 
?access to knowledge? was sufficiently broad and 
important to warrant separate implementing 
activities.  While the US could not support removing 
the projects' reference to Recommendation 19, DG 
Francis Gurry suggested adding the phrase ?Access to 
Knowledge? to the title of the project in an effort 
to bridge differences.  The US delegation accepted 
the DG?s suggestion, and Egypt and others eventually 
agreed, on the condition that the project document 
note that Recommendation 19 is only ?partially 
implemented? by this project. 
 
OVERSIGHT ARGUMENTS 
------------------- 
¶11.  The Committee discussed coordination mechanisms 
and modalities for monitoring, assessing and 
reporting on the implementation of recommendations. 
The Committee decided that interested Member States 
may submit their proposals to the Secretariat by 
June 30, 2009.  These submissions, in addition to 
the ideas offered in the discussions during the 
present session, will be compiled and presented to 
the fourth session of the CDIP for further 
discussion and possible decision on this subject. 
Discussion on this issue was highly contentious as 
both the Africa Group and Pakistan, supported by 
other Asian countries, tabled proposals giving the 
CDIP broad-ranging authority to interact with the GA 
and other WIPO Committees while also diminishing the 
role of the Secretariat in coordinating development 
agenda programs and activities.  The African 
proposal, for example, called for the creation of a 
new, freestanding Working Group under the authority 
of the CDIP (composed of the Chairs and Vice Chairs 
of all WIPO committees and regional coordinators 
plus two). Pakistan?s proposal called for all WIPO 
 
reports, studies, documents and negotiating texts to 
incorporate the DA recommendations on norm-setting. 
In its statement, Group B rejected the formation of 
new CDIP coordinating bodies, instead proposing a 
broad set of principles that would discharge this 
part of the CDIP?s mandate consistent with 
longstanding WIPO procedures applicable to all 
committees.  The EU, US, Canada and Korea also 
expressed disapproval with establishing new 
coordination mechanisms, with the UK making a 
particularly strong intervention, noting that the 
CDIP itself was the ?coordination body? envisioned 
by the GA.  This debate will likely continue in CDIP 
for some time, as Egypt persisted in arguing that 
submissions of Member States on coordination should 
allow sufficient time to bring these proposals to 
the attention of the 2009 GA (which for timing 
reasons will not occur) and proposed conducting 
informal consultations between CDIP 3 and the 2009 
GA, which was rejected by the US. 
 
¶12.  The next CDIP meeting is scheduled for November 
16-20, 2009.  The Chair?s summary of the 3rd session 
of CDIP can be found at: 
http://www.wipo.int/edocs/mdocs/mdocs/en/cdip _3/ 
cdip_3_summary.pdf 
 
STORELLA#