IPR ISSUES IN STANDARDIZATION

2. MDIC–STI BEIJING APRIL 17, 2007 IPR ISSUES IN STANDARDIZATION Manuel Lousada Soares Ministry of Development, Industry and Foreign Trade of Brazil Secretary for Industrial Technology

3. MDIC–STI 2 Globalization The new frontiers Global markets Global production

4. MDIC–STI 3 Where is the problem? • When a company protects an innovation and uses their own technical standards? Of course not! • When a companies’ consortia do the same and promotes their own standards around the world? Probably not! The problem arises in a much wider perspective: when we consider national, regional or international consensus standards. Because the rationale of these standards is directly related with public interest issues

5. MDIC–STI 4 The use of national or international standards in technical regulations • It is widely accepted as a good practice for technical regulation (Brazil is preparing his own Good Practices Guide) • It is one of the basic rules of WTO’s TBT (Technical Barriers to Trade) Agreement Whenever a technical regulation is prepared, adopted or applied for one of the legitimate objectives explicitly mentioned in paragraph 2, and is in accordance with relevant international standards, it shall be rebuttably presumed not to create an unnecessary obstacle to international trade TBT Agreement

6. MDIC–STI 5 To avoid conflict… • ISO/IEC orientation is to avoid inclusion, in international standards, of items covered by patent rights If, in exceptional situations, technical reasons justify such a step, there is no objection in principle to preparing an International Standard in terms which include the use of items covered by patent rights – defined as patents, utility models and other statutory rights based on inventions, including any published applications for any of the foregoing – even if the terms of the standard are such that there are no alternative means of compliance ISO/IEC Directives — Part 1: Procedures, 2004 If, in exceptional situations, technical reasons justify such a step, there is no objection in principle to preparing an International Standard in terms which include the use of items covered by patent rights – defined as patents, utility models and other statutory rights based on inventions, including any published applications for any of the foregoing – even if the terms of the standard are such that there are no alternative means of compliance ISO/IEC Directives — Part 1: Procedures, 2004

7. MDIC–STI 6 To avoid conflict… • Standards, and of course technical regulations, must specify performance, and not product description • Technical regulation can be based on parts of an international standard and exclude technical solutions protected by patents 2.8 Wherever appropriate, Members shall specify technical regulations based on product requirements in terms of performance rather than design or descriptive characteristics. TBT Agreement

8. MDIC–STI 7 Brazil supports… • The enforcement of international standardizing systems, such as ISO • The use of IPR tools to protect industrial and intellectual property (intangible assets) • Un effort towards a more effective collaboration between ISO/IEC and relevant standardizing bodies (the good example of Vienna Agreement) • The use of new deliverables of ISO/IEC in order to accelerate international bodies’ response to technological development speed, especially in high tech areas

9. MDIC–STI 8 Brazil suggested… • At WTO, Brazil proposed the inclusion of a footnote in the 4th Triennial TBT Review report (G/TBT/19): “A list of documents submitted and discussed during the Fourth Triennial Review is contained in Annex 1. This Annex constitutes an integral part of this Report.” • This proposal was accepted. China’s documents (IPR Issues in Standardization – G/TBT/W/251 and G/TBT/W/251/Add.1) are part of the list.

10. MDIC–STI 9 Brazil suggests… • An accurate analysis, by ISO/IEC, of current concrete situation, mainly in certain sectors/areas considered more vulnerable (mainly IT) • Report by ISO/IEC to WTO/TBTC • Consideration, by ISO/IEC, of possible solutions keeping in mind the appropriate use of international standards as a basis for WTO members technical regulations - future guidance • Cooperation, on this issue, between ISO/IEC and WIPO • Cooperative work in order to reach more objective understanding of “reasonable and non discriminatory” – RAND – approaches to be used by standardizing bodies

11. MDIC–STI 10 Brazil expects… • Governments to strongly support international standardizing systems through domestic standardizing and technical regulation policies • An effective effort towards convergence related to terms and definitions (not only between TBT and ISO Guides and Standards, but also among WTO Agreements, such as SPS and GATS) • An increased use of a tech blocks philosophy, based on international standards, that may be used in several technological applications

12. MDIC–STI 11 Brazil also expects… • That all efforts to be done in this field may lead to a refinement and increasing acceptance of international standardizing systems, not only on account of their intrinsic importance, but also because they are the basis for technical regulations harmonization around the World and are opened for every country participation.

13. MDIC–STI 12 lousadasoares@gmail.com Obrigado Thank you 謝謝 Trusting in automatic translation…