THE COMMITTEE

Industrial Property offices devote a significant part of their activities and resources to international relations. This is because practically all States have an office in charge of industrial property (patents, trade-marks and designs), a single body, even in those States with a federal structure, since industrial property rights are territorial, in other words, they must be applied for in each State, although there are some regional patents, with simultaneous effects in several States.  In this European Industrial Property Office, its international relations are focused on three major international organisations: the European Patent Office – EPO (headquarters in Munich, The Hague, Vienna and Berlin), the European Internal Market Office – EUIPO (headquarters in Alicante) and the World Intellectual Property Organisation – WIPO (headquarters in Geneva). As a result, civil servants who fortunately or unfortunately work there sometimes have to travel to these bodies, although the pandemic and the rapid implementation of “hybrid” meetings have considerably reduced the number of trips.

Arnaldo, with a focus on patents, had as regular destinations the European Patent Office and to a lesser extent WIPO, and over a period of about 12 years had to visit Geneva on a regular basis, once or twice a year.

Our official had already travelled in the past to attend, in the place of a colleague, the meetings that regularly take place to update the IPC (International Patent Classification) established by the Strasbourg Agreement. Those meetings are regularly held at WIPO headquarters, and there he saw for himself that it was possible to hold heated debates lasting several hours on the most appropriate position of a comma.

The 12-year period began, however, years later. In the first half of that year, the country where the Office where Arnaldo worked was located, had held the European presidency and had been very busy, even with a civil servant based in Geneva for several months. Once that stage was over, it was necessary to continue the Office’s participation in the various committees that were regularly held at WIPO.

The obscure civil servant had to attend a supposedly very important committee on patents though it seemed exaggerated to Arnaldo, and as he was also obedient, he went there with the instruction from his superior to take part in this Committee with interest. On that first trip, he does not remember having any problems finding a decent hotel. In that year, the travel and living allowances established in an old Decree still allowed travel without major problems, or perhaps he was lucky with the dates of the meeting, early October. The economic crisis was in full swing and only one official was allowed to travel. Travel for a couple of civil servants, as had been formerly the norm, was considered an intolerable luxury in those years of salary cuts.

Arnaldo read the numerous documents on a priori highly technical topics related to patent law. After arriving at the building of WIPO he was surprised, to say the least, when he listened to what the diplomat there told him (practically every state has a diplomat from the permanent representation to the United Nations in Geneva in charge of national interests at WIPO, including getting nationals into WIPO) . He was dumbfounded to see that the civil servant the Office had sent was a novice in the field, which did not seem the most appropriate when WIPO and more specifically this Committee was a “nest of spies”…..

Our protagonist soon realised that the atmosphere was not the best in the Committee, which was recovering from the suspension that had occurred a few years earlier when the objective for which it had been set up had been abandoned. That goal was the drafting of a substantive patent law treaty following the adoption of another treaty on the harmonisation of formalities. Since then, discussions had focused on what studies or documents WIPO would prepare or what activities WIPO would organise for the next session. To this end, the Committee had been meeting a couple of times a year.

The grey, obedient, overly technical civil servant realised that he was in the wrong place, a building with a long history and a meeting room that seemed to be stuck in the 1960s, where the visceral discussions centred on the goodness and badness of the patent system, especially with regard to its relationship with medicines. Arnaldo continued to attend the meetings, usually one in autumn-winter and another one in spring-summer, began to suffer the effects of the depreciation of the euro against the Swiss franc, paid for the naiveté of using his mobile phone on the Swiss “island” where roaming was non-existent and had to go to distant hotels, in France or very humble ones. However, he could still enjoy luxuries such as an individual bathroom, or afford a very, very frugal dinner or a menu from an international hamburger chain.

After seeing diplomats from the USA, Switzerland, Germany, Algeria, India, Brazil, Iran, South Africa and other nations in action, he realised, not without surprise, that the aim of all parties was to prevent the Committee from functioning. In some cases because this could lead to the much-maligned international harmonisation of patent law, which as had been seen after the implementation of TRIPS, allegedly harmed the economies of the least developed or developing countries. For others, the underlying reason was that if substantive issues were to be dealt with in the committee, this would be done from the point of view of the “third world” since the so-called “Development Agenda” was omnipresent in WIPO in those years.

Our protagonist had two options, either to doze off in the interminable plenary sessions after having listened to the same statements by the coordinators of the Regional Groups (there the states were grouped geographically) for several sessions in a row, or to try to change the situation. Given his technical background, he knew the difficulty involved in assessing a given patentability requirement and being somewhat naïve, he felt that he could try to make the resources that WIPO made available to the Member States of the Committee produce something of interest to patent practitioners and to society at large.

For this reason, and following the technique used for the presentation of some proposals already under discussion in the Committee, he drafted a document suggesting an in-depth study of a patentability requirement, which is so difficult for patent professionals to assess. The civil servant informed his superiors and some colleagues in his office who, while not opposed, were not enthusiastic either, one commenting that he “had too much free time” to devote to something like this. The presentation of the proposal to the Committee was not received with interest either, for some it was an attempt to push harmonisation, for others it was a waste of time. Only a few naïve professionals from national patent offices supported it timidly.

The sessions of the Committee and the years passed slowly, the travel conditions worsened, having dinner was no longer possible and some products bought in a cheap supermarket replaced it. When one of the meetings coincided with an international fair, so frequent in Geneva, the accommodation circumstances worsened even more. On one occasion, Arnaldo had to stay 40 km away, in France, on another in a guesthouse with shared bathroom facilities.

Repeatedly did Arnaldo try to sell the merits of his proposal, sorry, of his country’s proposal to study this very complicated patentability requirement, in plenary, in the coordination meetings of his regional group, of which there were two, without much success. In the meantime, a malaise was simmering in the committee. Since there was rarely agreement on what WIPO should organise or prepare for the next session, much of the time was devoted to meetings of the regional coordinators, who competed in some of the rooms of the building to show who was more radical in their defence or attack on the patent system. Many delegates, the chair on duty and the WIPO staff watched in amazement at the spectacle, which often ended in the wee hours of the morning with no agreement or a minimal one, with the situation repeating itself at the next session of the Committee some six months later, as the Committee’s agenda lacked a meaningful content.

The last day of each session of the Committee was held in an atmosphere of high tension. There was always uncertainty about what would happen. The grey official witnessed scenes worthy of a thriller.

On one occasion, Arnaldo was directly involved in this bizarre situation in which almost everyone was trying to dynamite the Committee. One of the most powerful states wanted to block agreement on the activities to be carried out at the next session of the Committee, but under the cover of its regional group, to which Arnaldo’s country also belonged. In those years, Arnaldo had befriended the diplomat from his country who dealt with these matters and they were in agreement on the need to keep the Committee functioning. This diplomat had already intervened on several occasions to facilitate agreement on the content of the next session and WIPO was very grateful to him. Like Arnaldo, the diplomat was outraged that this and other states were using the regional group to torpedo the functioning of the Committee.

 The diplomat had to leave Geneva on the last afternoon of the session and Arnaldo had to abandon his low profile and putting himself under the spotlight pointed out that his country could accept what had already been agreed with the other regional groups. He also added that if any member state of the regional group wished to block the agreement it should do so in the plenary and not hide behind the regional group. In the end, that State decided not to tarnish its image in the plenary and to appear as the one to blame for the lack of agreement, which eventually was achieved. That evening Arnaldo felt the eyes of a few delegates piercing him like daggers and feared he would end up floating in the waters of Lake Geneva.

Two moments from those cold-war-like years remained engraved in the memory of the grey civil servant. After intense negotiations to try to reach an agreement on the activities of the next session, this seemed to have been achieved. However, there remained what was usually considered a formality, the reading of the chair’s summary, including those future activities, for subsequent approval. The chair read out his summary and before banging the gavel, symbolising approval, he allowed a few moments of courtesy for possible comments from delegations. He was about to bang the gavel when a delegate from a, shall we say, contentious country raised his arm. The two senior WIPO officials on the podium, on either side of the chair, began to sweat profusely. The delegate expressed his disagreement and stated that he could not endorse the summary. The WIPO vice-president swooped down on the delegate and reproached him for his attitude. Several conversations ensued in an attempt to get the rebellious delegate to reconsider his position, but to no avail. The faces of the WIPO staff spoke volumes. All delegates, including Arnaldo, returned to their “capitals” with the feeling of having wasted not only time but also numerous resources for a week away from home.

On another occasion, the African group stood up to another group’s refusal to include in the agreement an activity relating to what is known as compulsory licensing. One of the African group’s delegates made a speech denouncing the lack of empathy of certain delegations who refused to make such a concession when people were dying in the streets in their countries due to the Ebola disease. Arnaldo himself could not help but empathise with that statement.

Time went by, there were changes of government in some states, the people who attended these meetings changed, especially the regional coordinators, and all this contributed to an improved atmosphere in the Committee that made it possible to end the meetings with agreement on the activities of the next session at a reasonable time. The dark civil servant was gaining some colour and, taking advantage of the favourable context, managed to get two proposals from his country, sometimes jointly with other countries, on the agenda. All this and the knowledge he was acquiring of everything that revolved around the Committee led him to consider the possibility of running for the presidency. Traditionally, with a few exceptions, Directors or senior officials of Industrial Property Offices, ambassadors or IP personalities from member states, hold the posts of Committee chairpersons. However, Arnaldo had observed that these chairpersons did not know the Committee in depth and that this made their work difficult. He therefore launched his candidacy and, with the support of his country’s permanent mission, succeeded in his goal of chairing the Committee.

Arnaldo usually found it difficult to achieve his goals, and it was no different on this occasion. He had to share the mandate with the candidate of another member state of the Committee who had been faster to put forward his candidacy and made use of the so-called “silence procedure”.

Then the pandemic broke out and he had to travel to Geneva in the midst of the health crisis on two occasions and with the corresponding PCR tests. When he was first elected, he was the only “non-resident” in that city who had travelled to attend the Committee. Moreover, his election was jeopardised when the presentation as a candidate for one of the vice-presidencies of the delegate of a country with a complicated internal and external situation provoked the veto of certain states and very powerful groups. The first day of this first session held in the pandemic and entirely telematically (with the exception of the chair who was there) was devoted to acrimonious statements in favour of and against the representative of that country. In the end, Arnaldo was elected, but the situation was unpleasant and the unrest continued throughout the whole session of the committee.

Arnaldo’s election was greeted with joy by his office, which boasted of the success it represented for the office and its management. A piece of news was even published on the Office’s website stating that the chair of the Committee would propose and moderate the discussions in line with the policies of the Union to which Arnaldo’s country belongs. He could only hope that the note would not be read by many people, because it showed very little knowledge of what chairing a committee in that organisation entailed.

Only the last session he chaired took place with a large number of delegates attending in person. Fortunately, the atmosphere was then more relaxed and Arnaldo was able to leave his chairmanship with agreement on future activities on the three occasions he chaired the committee.

Although the atmosphere in the Committee had improved considerably, the financial difficulties associated with travelling to Geneva had worsened, which was not surprising, given the rampant inflation. In fact, he had not been able to get breakfast at the hotel paid for by his Office. After 12 years, his country’s visibility in the Committee was hard to match, but neither the event nor the visibility were publicized by his Office. However, in the mind of the civil servant, who was rapidly regaining his traditional greyness, a sentence echoed over and over again during his trip back from Geneva: “they are not going to pay for your breakfast”, “they are not going to pay for your breakfast”.

Author’s note: Any resemblance to reality is purely coincidental.

En español

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