Ultimately, in meetings held May 8 – 9, 2014, the General Assembly will decide who is appointed Director General for the next six-year term that will being October 1, 2014. Having said that, the importance of the nominating decision by the Coordination Committee cannot be understated. In the unlikely event that the candidate nominated by the Coordination Committee were not to be appointed the Coordination Committee would nominate another candidate, and the process would repeat until the General Assembly finally appoints a nominated candidate.
Despite some turmoil surrounding WIPO sending computers to North Korea and Iran, until several months ago no one really believed the appointment of the next WIPO Director General would be anything other than a foregone conclusion. By all outward appearances Francis Gurry is a personable and knowledgeable diplomat that has lead WIPO very well. Indeed, appointment for a second term seemed almost inevitable. But then a bizarre DNA scandal erupted and ensnared Gurry, and this scandal seemed to be of a wholly different magnitude than the computer deal that had previously raised the ire of the U.S. Congress. Unknown to WIPO employees Gurry apparently ordered the collection of DNA samples to attempt to identify who had sent letters complaining of Gurry financial improprieties and sexual harassment.
There is a lot at stake as WIPO picks its next Director General. Gurry himself replaced a WIPO Director General mired in scandal, and the WIPO mission is far too important to allow the agency to be tainted. Still, there is anything but complete unanimity within the patent community about who should lead WIPO moving forward. For reasons that are unexplained, Hal Wegner recently proclaimed that if Gurry is not re-elected doom and disaster would certainly follow, saying: “The slow path to destruction of the PCT through fee diversion would take place, coupled with an anti-innovation leadership.” Wegner does not explain why this would be the case, likely because there is little to no rationale reason to believe disaster would follow or that Onyeama, Seilenthal and Alfaro are anti-innovation.
I see no evidence that the challengers to Gurry are philosophically against innovation and technology, or that they are hell-bent on destroying the PCT. The reality is the world needs to at least have a harmonized international filing process and the numerous bilateral agreements between nations and extraordinary popularity of the PCT suggest predictions of its demise under anyone other than Gurry are greatly exaggerated. Still, this type of over the top hyperbole seems to be growing, not waning. There are those who believe Gurry should be re-elected and there are others that consider the Gurry tenure at WIPO to be utterly embarrassing. So what is the truth?
While some may make excuses or explain away the computer deal and DNA scandal, these are not the only problematic issues to have arisen under the Gurry stewardship of WIPO. The Director General decided that he would open up remote WIPO Offices in Russia and China and entered into agreements to do so without seeking authorization from the Coordination Committee even after explicitly promising Member States he would get back to them with a strategy for opening remote WIPO Offices before anything happened. Senior management within WIPO found out about the new Offices in China and Moscow through newspaper announcements touting the signing of those agreements and Member States were similarly caught by surprise. The tension caused by the remote office debacle caused Member States to fail to adopt a budget for the 2014/2015 biennium during the September 2013 WIPO General Assembly. This necessitated scheduling of a special session of the General Assembly from December 10-12, 2013.
These scandals, as well as internal reports of intimidation and an exceptionally unhealthy workplace environment at WIPO have lead many, including distinguished Members of the United States Congress, to question Gurry’s judgment and openly advocate for the Obama Administration to do everything in its power to support an alternative candidate and see that Gurry does not win reelection.
At least three letters have been sent from Congress imploring the Obama Administration to do something. On September 19, 2013 several members of the House Subcommittee on Intellectual Property wrote a letter to Secretary of State John Kerry urging the U.S. government to oppose the re-election of WIPO Director General Francis Gurry. Again on November 21, 2013, another letter was sent to Secretary of State John Kerry, this time by a growing number of House Members on both sides of the political aisle. This letter urged the Obama Administration to support an alternative candidate to become Director General of WIPO in light of the growing scandals engulfing Gurry. Finally, on February 10, 2014, another letter was sent to Secretary of State John Kerry, this time by Congresswoman Zoe Lofgren (D-CA), who has been spearheading the charge.
In her letter Congresswoman Lofgren says that she is pleased to finally learn that the State Department is going to conduct an intensive review of the candidates for WIPO Director General, but is unhappy to learn that the U.S. does not plan to publicly disclose its preferred candidate. Lofgren wrote: “While I am aware that the election is conducted by a secret ballot, the U.S. has in the past shown leadership in the selection of directors and was also publicly active in opposition to a predecessor WIPO Director General accused of misconduct, Mr. Kamil Idris. This situation calls for similar leadership by the United States.”
The Lofgren letter goes on to detail her concerns over the various scandals facing Gurry, and concludes:
With the election only four weeks away, I believe it is critical that the Department of State and Commerce come together now – in the interest of the United States and its industries, as well as the reputation of the U.N. – to agree on the alternative candidate that will best serve those interests. The U.S. government should also immediately engage with the WIPO Group B countries at the national capitol level, given that these Member States share our interest in seeing that WIPO remain an organization with integrity committed to protecting intellectual property rights. To do less would mean that the U.S. is willing to both backtrack on its commitment to U.N. reform as well as our solemn obligation to protect the IP interests of our citizens and companies.
Some have said that there is a conspiracy against Gurry, which seems ridiculous on its face once you consider that there has been bi-partisan support in the U.S. House of Representatives for the United States to support an alternative candidate. Even the casual observer has to know that Republicans and Democrats agree on practically nothing in Washington, DC, these days. To believe there is some bi-partisan conspiracy on any issue seems practically laughable. Of course, those claiming there was a conspiracy against Gurry were also certain that those pointing out the WIPO scandals were somehow doing so in a clandestine effort to nominate a U.S. candidate to take over WIPO. That was never in the cards, never had any chance of happening, and actually didn’t happen.
The trouble for Gurry and his supporters isn’t just that they have to continue to explain away scandal after scandal. It isn’t just that their conspiracy theories have fallen apart like conspiracy theories virtually always do. Rather, the real problem is that the DNA scandal, which may be the most damaging because it shows an extraordinary level of vindictiveness, has gained new momentum over the last several days.
On February 5, 2014, Miranda Brown filed a complaint against the World Intellectual Property Organization with the International Labour Office Administrative Tribunal. Brown, a former Deputy Permanent Representative at the Australian Mission in Geneva, was most recently a Strategic Advisor to the WIPO Director General, Francis Gurry. Her complaint does not seek any monetary damages, but rather seeks an full, fair and open investigation into the DNA scandal, which she believes was improvidently quashed by Gurry.
The Brown complaint begins:
While preparing in 2007 to run for Director General of WIPO, Mr. Francis Gurry, then a Deputy Director General at WIPO, was the target of anonymous letters accusing him of financial improprieties and sexual harassment. In response, Mr. Gurry filed a complaint against “unknown persons” with the Swiss authorities. In February 2008, he asked that DNA and fingerprint samples be taken from two dozen WIPO staff, in order to help locate the perpetrator(s). The request was denied by then Director General, Mr. Kamil Idris… Mr. Gurry apparently gave secret instructions to one of the WIPO security officers, Mr. Drew Donovan, to enter their offices and take personal effects such as lipsticks, dental floss and other personal items, without their consent or knowledge. The personal effects were then handed to the Swiss police for DNA analysis. Later, in May 2008, on the same day that Mr. Gurry was elected as the future Director General, he elicited a request from Switzerland to waive immunity of eleven WIPO staff, including the three who had been victimized by the theft of personal effects and DNA, in order to have the police gather their DNA directly — possibly in order to provide cover for the earlier theft of DNA. Subsequent genetic testing exonerated all who had proved samples. One of the victims later requested the official file from the Swiss authorities; the hospital report within the file revealed evidence of the theft of personal effects and DNA (it also provided direct evidence of Mr. Donovan’s involvement). In 2011, shortly before the victim’s complaint about this was about to be considered by the International Labor Organization Administrative Tribunal, Mr. Gurry suddenly, and against her will, ordered that her post be transferred to Singapore. At this point, the Complainant, Ms. Miranda Brown, joined WIPO as Strategic Advisor to the Director General (a D2-level post). Upon learning of Mr. Gurry’s order to transfer the victim to Singapore, and that he intended to fire the victim should she refuse to move, Ms. Brown intervened, and he was eventually convinced to reconsider. WIPO entered into a settlement with the victim, requiring her permanent silence concerning the illegal collection of DNA, in exchange for revoking the enforced transfer.
This is problematic for Gurry for many reasons. First, the underlying allegations that lead to the DNA seizure were accusations of financial improprieties and sexual harassment, which add to the scandal list in and of themselves. While there is not any conclusive proof that Gurry was the one behind the DNA theft, there was a conscious decision not to conduct an investigation. Brown’s complaint says point blank: “In addition to being profoundly corrupted, the decision not to investigate was wrong. The facts underlying the request [to investigate] are compelling, and no reasonable person could have concluded that there was insufficient evidence to warrant an investigation… the evidence on the theft of DNA from WIPO staff was overwhelming, and point to Mr. Gurry — the only actor with a person interest…”
Frankly, I don’t know what happened at WIPO. I know what I have been told about how Gurry manages WIPO behind closed doors, I know what the Wall Street Journal has reported, and I know what the Tribune de Geneve reported (original article and English translation). I also know that Congresswoman Lofgren is particularly disturbed, I know that WIPO did not conduct an investigation into the DNA scandal and I know that the candidates nominated who are not named Gurry are highly qualified and capable of running WIPO.
Perhaps there is no fire, but there is certainly a lot of smoke and it seems fair to say that there has been no real effort to explain or even address the myriad issues surrounding Gurry’s tenure at WIPO. I suspect there was a hope that things could be managed until after he was appointed Director General for a second term, but the failure to address these issues and conduct an investigation which well could have exonerated him is hardly reason to look the other way. In fact, the failure to explain and the failure to investigate suggest that there is something to hide.
What will happen is anyone’s guess at this point. If I were forced to predict I would say that I don’t expect that Gurry will see a second term as Director General of WIPO. Of course, with the U.S. not publicly leading on the issue it is hard to know what will ultimately transpire, but if I had to pick a winner I think at this point I would lean toward Ambassador Alfredo Suescum Alfaro of Panama. Alfaro is a U.S. educated lawyer who attended Wesleyan University, Columbia University and Tulane Law School. He was an alternate Representative of Panama to the United Nations and Permanent Representative of Panama to the World Trade Organization in Geneva Switzerland. He has a long a distinguished diplomatic career with great expertise in law and trade. If the U.S. does not back Gurry it would seem logical for the Obama Administration to select Alfaro, who I understand had very positive meetings with U.S. officials.