WORLD TRADE

ORGANIZATION

RESTRICTED

IP/C/M/43

7 May 2004

(04-2044)

Council for Trade-Related Aspects

of Intellectual Property Rights

MINUTES OF MEETING

Held in the Centre William Rappard

on 8 March 2004

Chairman: Ambassador Vanu Gopala Menon (Singapore)

The present document contains the record of the discussion which took place during the TRIPS Council meeting held on 8 March 2004.

Subjects discussed Page Nos.

A. NOTIFICATIONS UNDER PROVISIONS OF THE AGREEMENT 2

B. REVIEW OF NATIONAL IMPLEMENTING LEGISLATION 2

C. REVIEW OF THE PROVISIONS OF ARTICLE 27.3(B) 5

D. RELATIONSHIP BETWEEN THE TRIPS AGREEMENT AND THE CONVENTION ON BIOLOGICAL DIVERSITY 5

E. PROTECTION OF TRADITIONAL KNOWLEDGE AND FOLKLORE 5

F. REVIEW OF IMPLEMENTATION OF THE TRIPS AGREEMENT UNDER ARTICLE 71.1 14

G. REVIEW OF THE APPLICATION OF THE PROVISIONS OF THE SECTION ON GEOGRAPHICAL INDICATIONS UNDER ARTICLE 24.2 14

H. DECISION ON THE IMPLEMENTATION OF PARAGRAPH 6 OF THE DOHA DECLARATION ON THE TRIPS AGREEMENT AND PUBLIC HEALTH 16

I. REVIEW UNDER PARAGRAPH 2 OF THE DECISION ON THE IMPLEMENTATION OF ARTICLE 66.2 OF THE TRIPS AGREEMENT 18

J. TECHNICAL COOPERATION AND CAPACITY-BUILDING 18

K. INFORMATION ON RELEVANT DEVELOPMENTS ELSEWHERE IN THE WTO 18

L. OBSERVER STATUS FOR INTERNATIONAL INTERGOVERNMENTAL ORGANIZATIONS 18

M. OTHER BUSINESS 19

N. ELECTION OF CHAIRPERSON 19

A. NOTIFICATIONS UNDER PROVISIONS OF THE AGREEMENT

(i) Notifications under Article 63.2

- Notifications from Members whose transitional periods under Article 65.2 or 65.3 expired on 1 January 2000 or who have acceded to the WTO after that date

1. The Chairman drew attention to the Secretariat's updated note reflecting the status of the notifications received from Members so far (JOB(04)/5). The note showed from which of the Members in question notifications had been received and/or circulated by 2 March 2004. From the 81 Members in question, there were still four who had not yet submitted any notification concerning their implementing legislation, namely Papua New Guinea; Saint Kitts and Nevis; Saint Vincent and the Grenadines; and Swaziland. Notifications from a number of other Members were incomplete. Recalling that pursuant to Article 63.2 of the Agreement the notifications of the laws and regulations in question were generally due as of 1 January 2000, he urged all Members with unfulfilled notification obligations to submit the outstanding material without delay.

- Notifications of amendments of laws notified earlier

2. The Chairman informed the Council that, since its November meeting, the following updates to earlier notifications of laws and regulations had been received: Germany had notified a Law to Revise the Rules on Cost in the Field of Intellectual Property; the United States had notified the most current versions of its three main intellectual property laws, namely its patent, copyright and trademark laws; Moldova had notified a law amending and completing various intellectual property laws; and Spain had notified its Industrial Designs Law. These notifications were being circulated in the IP/N/1/- series of documents.

3. The Chairman drew attention to Thailand's responses (IP/C/W/417) to the questions posed by Japan relating to the notification of certain Thai laws and regulations circulated on 21 and 28 March 2003.

4. The representative of Japan thanked Thailand for its responses. Given that his delegation had not had enough time to analyse the responses, he reserved the right to submit additional and follow-up questions.

5. The Council took note of the statements made.

(ii) Notifications under Article 69

6. The Chairman said that, since the Council's meeting in November 2003, updated notifications of contact points under Article 69 of the Agreement had been received from Israel and Thailand. These notifications had been circulated in an addendum to document IP/N/3/Rev.7. There were now 118 Members who had notified contact points under Article 69.

B. REVIEW OF NATIONAL IMPLEMENTING LEGISLATION

(i) Follow-up to reviews already undertaken

7. The Chairman said that the Secretariat had updated its informal note that listed all the outstanding material required to complete the reviews that the Council had already undertaken (JOB(04)/6). The table attached to the note listed 15 Members whose reviews had been initiated at the Council's meetings since April 2001 but which remained on the Council's agenda. In addition, the note also listed a number of Members whose reviews had already been deleted from the Council's agenda, but to whom further questions had been posed.

8. Since the Council's last meeting, Moldova had provided responses to all of the outstanding questions posed to it in the context of its review, and all of these responses had been circulated to Members prior to the present meeting. He proposed that the regular review of the legislation of Moldova be deleted from the agenda, it being understood that any delegation should feel free to revert to any matter stemming from this review at any time.

9. The Council so agreed.

10. The Chairman turned to the remaining 14 Members whose reviews had been initiated since April 2001 but which remained on the Council's agenda, namely Congo; Cuba; Egypt; Fiji; Grenada; Mauritius; Nigeria; Pakistan; Qatar; Saint Kitts and Nevis; Saint Vincent and the Grenadines; Suriname; Swaziland; and Zimbabwe. Since the Council's last meeting, Nigeria had provided responses to most of the outstanding questions, but there were still a few questions to which responses had not yet been received.

11. The representative of Cuba said that she was hoping that two of the pending laws before the Council of the State would be adopted in the third quarter of 2004, after which they would be notified along with the responses to the outstanding questions posed to her delegation.

12. The representative of Egypt said that his delegation would shortly respond to the outstanding questions and notify an Executive Order, which was being finalized.

13. The representative of Nigeria said that his delegation would provide responses to the outstanding questions in the near future.

14. The representative of Pakistan said that he hoped that a response to the one outstanding question would be received from the capital shortly.

15. The representative of Zimbabwe said that unfortunately his delegation was not in a position to indicate when exactly it would be able to provide responses to the outstanding questions since the delay was due to circumstances totally beyond its control. His delegation might need to have discussions with the Members who had posed the more than 200 questions which still remained unanswered and Zimbabwe might in fact need technical assistance to answer them.

16. The representative of the European Communities thanked all those Members which had replied to the questions put to them and urged those which had not yet done so to do their best to provide responses as soon as possible. If some Members were having problems replying to the questions, his delegation would be very happy to discuss this bilaterally and provide technical assistance, if requested.

17. He noted that a number of Members had adopted new legislation since their reviews had been deleted from the Council's agenda. His delegation might have questions relating to some new legislation. He wondered whether in such cases the review could be formally reopened or whether new questions could be sent and dealt with on a more informal basis.

18. The representative of the Secretariat said that he believed that the practice that had evolved, insofar as there was a practice on this type of issue, was that if there was a matter which stemmed from what had already been taken up under the review, then there would be a possibility to come back to that matter. Reviews were removed from the Council's agenda on the understanding that there would be a possibility to revert to any further matter stemming from those reviews. Normally, a new piece of legislation which had not been the subject of the review would be considered under the Council's first agenda item relating to notifications of legislation. Any points which might arise from that notification could be taken up under that heading.

19. The representative of the European Communities asked whether it would be possible for Members to pose questions concerning legislation which had not yet been notified by the Member in question, but which had already been effectively implemented by that Member in the context of its TRIPS implementation.

20. The representative of the Secretariat said that he believed that the formal situation was that there was a commitment in the TRIPS Agreement to notify legislation and that the Council was a forum in which Members could interact with each other about any issue relating to the operation of the Agreement. If there were an issue related to legislation which either had been notified or should have been notified, the first agenda item would provide an opportunity for such issues to be discussed.

21. The Chairman said that the Secretariat note also listed seven Members whose reviews had already been deleted from the Council's agenda on the understanding that any delegation should feel free to revert to any matter stemming from the review at any time. In this connection, certain questions had been raised with regard to the implementing legislation of these countries. Since the Council's last meeting, Japan had posed follow-up questions to China in relation to responses it had provided in the context of its regular review initiated in September 2002, and a follow-up question to Malaysia.

22. The representative of Argentina said that responses to the pending questions would be communicated as soon as her delegation received them from her capital.

23. The representative of China said that his delegation had taken note of the follow-up questions posed by Japan in December 2003 and that, as soon as the authorities in his capital had finished checking the English version of the responses, his delegation would contact the delegation of Japan.

24. The representative of Malaysia said that her delegation had taken note of the follow-up question posed by Japan and would provide a response as soon as possible.

25. The Chairman said that, since the Council's last meeting, very little progress had been made with regard to the remaining outstanding material and the completion of the follow-up to the last pending reviews. He urged the delegations concerned to provide the outstanding material as quickly as possible, so as to allow the Council to complete the follow-up to these reviews. He proposed that the Council request the Secretariat to update its note on pending reviews before the Council's next meeting.

26. The Council took note of the statements made and agreed to proceed as suggested by the Chairman and revert to the matter at its next meeting.

(ii) Reviews of legislation of Armenia and the former Yugoslav Republic of Macedonia

27. The Chairman recalled that, at its meeting in June 2003, the Council had agreed to review the legislation of two newly acceded Members, namely Armenia and the Former Yugoslav Republic of Macedonia, at the present meeting.

- Review of legislation of Armenia

28. The Chairman said that the Government of Armenia had requested that the review of the legislation of Armenia be postponed until the next meeting of the Council, scheduled for 15-17 June 2004, given that it was not in a position to send a delegation to the present meeting. The Government had also confirmed that it had received the questions posed to it by Switzerland and that its experts were already working on responses to these questions, as well as on responses to the Checklist of Issues on Enforcement, which it intended to submit as soon as possible. In light of this request, the Chairman proposed that the Council postpone the review of the legislation of Armenia to its June meeting.

29. The Council so agreed.

- Review of legislation of the Former Yugoslav Republic of Macedonia

30. The Chairman said that the notification by the Former Yugoslav Republic of Macedonia (FYROM) of its laws and regulations had been circulated in document IP/N/1/MKD/1, and the texts of the notified laws in the relevant law series of documents. It had received questions from Switzerland, which had been circulated in document IP/C/W/419. Its responses to these questions had been circulated in document IP/C/W/421.

31. In accordance with the standard procedures, the delegation of the Former Yugoslav Republic of Macedonia provided a brief introductory overview of the structure of its legislation in the areas covered by the TRIPS Agreement and of the changes that it had had to bring about in order to make the legislation compatible with the Agreement. The record of the introductory statement as well as the questions put to it and the responses given (including responses to any follow-up questions posed after the meeting) would be circulated in a document with the following symbols: IP/Q/MKD/1, IP/Q2/MKD/1, IP/Q3/MKD/1 and IP/Q4/MKD/1.

32. The representative of Switzerland commended FYROM for its efforts to bring its legislation into conformity with the TRIPS Agreement as well as with other important international agreements. Updated intellectual property legislation formed an important element of a national regulatory framework, which was part of an economic environment conducive to attract new investment and economic growth. This applied in particular to new technology, and was equally relevant to small and large WTO Members. Thanking the FYROM for their introductory statement and their responses to the questions posed by Switzerland, he said that his delegation would examine the responses in depth and, if necessary, pose further questions.

33. The Chairman suggested that, in light of possible further questions that Switzerland and other Members might wish to put to FYROM, the Council take note of the statements made and revert to the matter at its next meeting.

34. The Council so agreed.

C. REVIEW OF THE PROVISIONS OF ARTICLE 27.3(B)

D. RELATIONSHIP BETWEEN THE TRIPS AGREEMENT AND THE CONVENTION ON BIOLOGICAL DIVERSITY

E. PROTECTION OF TRADITIONAL KNOWLEDGE AND FOLKLORE

35. The Chairman suggested that, since the practice in the Council's past meetings had been that delegates address these three agenda items together, the Council again take them up at the same time. He informed the Council that, since its meeting in November 2003, the Council had received information from Moldova on how the matters addressed in Article 27.3(b) were presently treated in its national law (IP/C/W/125/Add.24). This information had been provided using the illustrative list of questions contained in document IP/C/W/273. The Council had also received a submission from Bolivia, Brazil, Cuba, Ecuador, India, Peru, Thailand and Venezuela entitled "the Relationship between the TRIPS Agreement and the Convention on Biological Diversity (CBD): Checklist of Issues" (IP/C/W/420 and Add.1).

36. Introducing this new submission (IP/C/W/420 and Add.1), the representative of India said that discussions on the relationship between the TRIPS Agreement and the CBD and on how to ensure their mutual supportiveness had taken place in the Council for TRIPS since 1999. Specific issues had arisen within this discussion. One of the major concerns that had been expressed by some Members was that the TRIPS Agreement allowed the granting of patents for inventions that used genetic material and associated knowledge without requiring compliance with the provisions of the CBD. To the extent that bio-piracy was accepted as a major problem, the challenge was to determine what measures needed to be taken within the framework of the TRIPS Agreement to prevent misappropriation of genetic material and to support the objectives and implementation of the CBD. While discussions had continued in the Council following the mandate given to it by Ministers in Doha, significant work remained to be done in order to find a satisfactory solution. The checklist of issues had been prepared in order to facilitate more focused, structured and result-oriented discussions. It had been drawn up on the basis of the issues raised and the points made by various delegations in their communications and statements in the Council since 1999 and, in particular, in the post-Doha period. The purpose of the checklist was to assist and expedite the process and not to limit the ambit of the discussions. The checklist was to be considered open for Members to raise and address any additional elements that were of significant concern to them.

37. The representative of the European Communities agreed on the need for a focused discussion on the relationship between the TRIPS Agreement and the CBD. The Council should, as a matter of priority, focus on issues on which Members could reasonably expect to make progress, but not on issues in respect of which there was a serious divergence of views among Members. In this respect, he thought that the communication IP/C/W/420 was timely and useful. He agreed that there was a need to examine and determine what measures needed to be taken within the framework of the TRIPS Agreement to support the implementation of the CBD. Disclosure of source and related issues was a good candidate for a focused and detailed examination which would preferably lead to major progress on this issue. The European Communities was ready to take up all the issues mentioned in the checklist of issues without prejudice to the outcome. Recalling a communication the European Communities had made in September 2002 (IP/C/W/383), he said that his delegation did not necessarily agree on all aspects taken up in the checklist. However, discussion on the checklist would allow the European Communities to explain why it took this point of view. His delegation was in favour of starting negotiations on disclosure of source, but was hesitant about disclosure of evidence of prior informed consent for the reasons outlined in the EC communication. As to the forum within the WTO, he wondered whether this issue was considered as part of outstanding implementation issues, which should normally be dealt with by the TNC in the broader framework of paragraph 12 of the Doha Declaration. He recalled that his delegation had said in the past that it was ready to consider disclosure of source as part of outstanding implementation issues, but, if necessary, it was also ready to discuss the matter in the Council pending a clarification of this question in the TNC.

38. Commenting on the African Group's communication (IP/C/W/404), he agreed that there was a need to move forward. It was important to start focusing on certain issues and to be selective. He believed that the TRIPS Council could find pragmatic and creative solutions without upsetting the balance of rights and obligations under the TRIPS Agreement. He noted that the African Group had distinguished between "possible areas of agreement" and "areas without common understanding". Although he could not agree on all the details in relation to the issues identified as possible areas of agreement, he thought it should be relatively easy for Members to reach a common understanding on them. Regarding the issue of an effective sui generis system for the protection of plant varieties, he said that the UPOV system was a good one but not the only one, and it did not rule out other possible sui generis systems as long as they were effective. Hence, the Council might discuss further the conditions under which a sui generis system for the protection of plant varieties could be considered to be effective. He said that it remained to be seen whether there was a common understanding on this matter, and referred to a number of criteria listed in the EC communication. In his view, the TRIPS Agreement left scope for certain farmers' exceptions both under patent and plant varieties protection systems, provided that they were limited to subsistence farmers and small farmers. While farmers who had an activity on a commercial scale should not be subject to farmers' exemptions, there was room for discussion regarding certain categories of farmers in developing countries.

39. He agreed that the TRIPS Agreement and the CBD should be implemented in a mutually supportive manner. He informed the Council that the European Commission had submitted a communication to the European Parliament and the Council, in which the Commission had indicated several ways of implementing the Bonn guidelines on access to genetic resources and fair and equitable sharing of the benefits arising out of their utilization. The communication, which also reflected on disclosure of origin, was the Commission's proposal for further action at the level of the European Communities. He agreed with the African Group that the TRIPS Agreement did not prevent Members from protecting traditional knowledge or certain types of plant varieties which did not satisfy the criteria provided for in UPOV. This was allowed under the TRIPS Agreement as long as the protection was in line with other provisions of the Agreement. He also agreed on the necessity to identify and document genetic resources and traditional knowledge to assist patent examiners' consideration of novelty. On the one hand, patents examiners should be fully informed about prior art, and, on the other hand, it was necessary to provide protection against abuse. Many technical issues needed to be addressed, not necessarily all of them in the TRIPS Council but also in WIPO.

40. Turning to the "areas without common understanding", he said that there was a critical mass of Members who believed that the balance in Article 27.3(b) on what was patentable and what was not should not be upset and that there was no chance in the foreseeable future of reaching any agreement on a drastic review of Article 27.3(b), especially on the prohibition of patenting life forms. Many Members had a biotechnology industry which they wished to protect. It was unrealistic to believe that they would agree with proposals to cut back the protection of the biotechnology sector. Paragraphs 1-3 of Article 27 provided flexibility for Members to establish their own systems according to their own development needs. These flexibilities included the criteria of patentability and the interpretation of the term "invention". He wished to make it clear that the European Communities did not want to engage in work on curtailing the scope of Article 27.3(b) to provide patent protection to biotechnological inventions. At the same time, this protection should take into account the legitimate concerns of those who provide biological material and traditional knowledge. Hence, he was prepared to look at ways to make sure no bad patents were granted in respect of existing genetic resources or traditional knowledge. With regard to the distinction between micro-organisms, animals and plants he said that, since there was no agreement on this issue in the scientific field, it would be difficult to discuss this issue in the TRIPS Council. In his view, this was an additional flexibility for Members to explore and one that should not be looked at negatively.

41. Regarding the draft decision on traditional knowledge annexed to the African Group's communication, he said that the protection of traditional knowledge was a new issue and a system of protection would need to be built from scratch. His delegation believed that it was important to have international guidelines on this issue, especially from WIPO and hence it might be premature to start a discussion on this issue in the WTO. He also reminded Members that in the run-up to the Cancun Ministerial Conference, few Members had raised the issue of traditional knowledge. Therefore, Members should look at the urgent issues and leave work on positive protection of traditional knowledge to the WIPO for the time being. He noted that the enumeration with respect to traditional knowledge in paragraph 6(a) of the draft decision on traditional knowledge was open-ended and there was no clear definition of traditional knowledge. In his view, before starting to discuss an international regime for the protection of traditional knowledge, Members must have a common understanding of what was traditional knowledge.

42. The representative of the European Communities noted that, under the draft decision, traditional knowledge would be protected without a time-limit. In this respect, he said that the protection of intellectual property rights in the TRIPS Agreement, except those related to denominations such as geographical indications and trademarks, was limited in time. There was a good reason for this: a limited monopoly was created for a certain period of time to allow the innovator to recoup its investment, and after that period of time had lapsed, the innovation fell into the public domain. Under the patent system, there was also the possibility of compulsory licensing. He found it unacceptable to propose protection through perpetual exclusive rights of use of something that the proponents themselves considered as very important for the mankind. If, for example, a community knew of a cure for cancer deriving from plants, would it be acceptable to allow this community to keep this knowledge only for its own benefit and not share it with the rest of the humankind? It was important to reward those who contributed to innovation through traditional knowledge but giving perpetual exclusive rights to authorize the use of traditional knowledge was the wThe file is too large for this option. Only the first 30000 characters will be displayed