RESTRICTED  WORLD TRADE  
ORGANIZATION  IP/C/M/44 
19 July 2004 
 
 (04-3099) 
Council for Trade-Related Aspects 
of Intellectual Property Rights  
 
   
MINUTES OF MEETING 
 
Held in the Centre William Rappard
 
on 16 June 2004  
 
Chairman:  Mr. Joshua C.K. Law (Hong Kong, China) 
 
 
 
 The present document contains the record of the discussion which took place during the 
TRIPS Council meeting held on 16 June 2004. 
 
 
Subjects discussed          P a g e  n o s . 
 
A. NOTIFICATIONS UNDER PROVISIONS OF THE AGREEMENT ..........................................................2  
B. REVIEW OF NATIONAL IMPLEMENTING LEGISLATION .................................................................3  
C. REVIEW OF THE PROVISIONS OF ARTICLE 27.3( B) .......................................................................4  
D. RELATIONSHIP BETWEEN THE TRIPS AGREEMENT AND THE CONVENTION ON 
BIOLOGICAL DIVERSITY ..............................................................................................................4  
E. PROTECTION OF TRADITIONAL KNOWLEDGE AND FOLKLORE .....................................................4  
F. REVIEW OF IMPLEMENTATION OF THE TRIPS AGREEMENT UNDER ARTICLE 71.1......................10  
G. REVIEW OF THE APPLICATION OF THE PROVISIONS OF THE SECTION ON 
GEOGRAPHICAL INDICATIONS UNDER ARTICLE 24.2.................................................................11  
H. DECISION ON THE IMPLEMENTATION OF PARAGRAPH 6 OF THE DOHA DECLARATION 
ON THE TRIPS AGREEMENT AND PUBLIC HEALTH ......................................................................12  
I. REVIEW UNDER PARAGRAPH 2 OF THE DECISION ON THE IMPLEMENTATION OF 
ARTICLE  66.2  OF THE TRIPS AGREEMENT ..................................................................................23  
J. TECHNICAL COOPERATION AND CAPACITY -BUILDING ..............................................................24  
K. INFORMATION ON RELEVANT DEVELOPMENTS ELSEWHERE IN THE WTO .................................25  
L. OBSERVER STATUS FOR INTERNATIONAL INTERGOVERNMENTAL ORGANIZATIONS .................25  
M. OTHER BUSINESS .......................................................................................................................26  
 
 IP/C/M/44 
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A. 
NOTIFICATIONS UNDER PROVISIONS OF THE AGREEMENT  
1. The Chairman  drew attention to the latest Secret ariat note reflecting the status of the 
notifications of laws and regulations under Artic le 63.2 received from Members whose transitional 
periods under Article 65.2 or 65.3 had expired on 1 January 2000 or who had acceded to the WTO 
after that date (JOB(04)/68).  The note showed from which of the Members in question notifications 
had been received by 3 June 2004.  Since the Council's meeting in March 2004, Swaziland had 
notified its TRIPS implementing legislation.  Among the 81 Members in question, there remained 
three who had not yet submitted any notification con cerning their implementing legislation, namely 
Papua New Guinea;  Saint Kitts and Nevis;  and Sa int Vincent and the Grenad ines.  He recalled that 
in the previous year, as requested by the Council at  its meeting in February 2003, his predecessor had 
written to the Members that had not been repres ented at that meeting and which had unfilled 
notification obligations under Article 63.2.  Since th en, the Secretariat has had informal contacts with 
the three delegations that had not yet submitted any notification.  He suggested that the Chair once 
again write to these three Members concerning  the notification of their TRIPS implementing 
legislation. 
2. Informing the Council about the supplements and updates to earlier notifications of laws and 
regulations that had been received since the March meeting, the Chairman said that the Czech 
Republic had notified a new Trademark Law and an Act on Courts and Judges;  El Salvador had 
notified its "Law on Marks and Other Distinctive Sign s";  Georgia had notified a list of geographical 
indications for wine, alcoholic beverages and mi neral water;  Germany had notified a "Law to 
Strengthen the Contractual Position of Authors and Performing Artists" and provisions of certain 
other laws in the area of enforc ement;  Hong Kong, China had notifie d recent amendments to its laws 
and regulations in the area of patents, designs and trademarks together with explanatory notes;  Japan 
had notified an updated text of its "Customs Tariff Law";  Mexico had notified certain amendments to 
its industrial property laws and regulations;  Panama  had notified amendments relating to its criminal 
and judicial codes;  Saint Lucia had notified legislation enacted or amended since the review of its legislation in 2001;  and Tunisia had notified th at it had ratified the Budapest Treaty. These 
notifications were being circulated in the IP/N/1/-  series of documents.  Furthermore, Armenia had 
provided its responses to the Checklist of  Issues on Enforcement (IP/N/6/ARM/1). 
3. The Chairman urged those Members whose initial notification remained incomplete to submit 
the outstanding material without delay.  He also reminded Members of their obligation to notify any 
subsequent amendments of their laws and regulati ons without delay after their entry into force. 
4. As regards notifications of contact points under Article 69, he said that, since the March 
meeting, notifications of new contact points ha d been received from Latvia and Swaziland.  
Furthermore, an updated notification of a contact point had been received from Angola.  These 
notifications had been circulated in document IP/N/3/Add.7.  There were now 120 Members who had 
notified contact points under Article 69. 
5. The Council took note
 of the information provided and agreed  to proceed as suggested by the 
Chair.  IP/C/M/44 
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B. REVIEW OF NATIONAL IMPLEMENTING LEGISLATION  
(i) Follow-up to reviews already undertaken 
6. 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)/67).  The table attached to the note lis ted the 15 Members whose reviews had been initiated 
at the Council's meetings since April 2001 but whic h remained on the Council's agenda.  The table 
referred to submissions, including both responses and follow-up questions, received by 7 June 2004. 
7. He recalled that, at its last meeting, the Council had initiated the review of national 
implementing legislation of the Former Yugoslav Republic of Macedonia.  Since that meeting, 
Switzerland had posed one follow-up question to the Former Yugoslav Republic of Macedonia 
(IP/C/W/419/Add.1). 
8. The Chairman turned to the remaining 14 Members, namely Congo;  Cuba;  Egypt;  Fiji;  
Grenada;  Mauritius;  Nigeria;  Pakistan;  Qatar;   Saint Kitts and Nevis;  Saint Vincent and the 
Grenadines;  Suriname;  Swaziland;  and Zimbabwe. 
9. The representative of Cuba  said that she had nothing new to  add to what her delegation had 
said in the last Council meeting with regard to C uba's pending legislation.  Her delegation intended to 
notify the laws, currently pending before the Council of the State, as soon as they had been adopted. 
10. The representative of Egypt  regretted that her delegation ha d not yet been able to submit 
responses to the outstanding questions and hoped to be able to do so in the near future. 
11. The representative of Nigeria  said that his delegation would provide responses to the 
outstanding questions before the next Council meeting. 
12. The representative of Pakistan  said that his capital had assured him that a response to the one 
outstanding question would be submitted before the next Council meeting. 
13. 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 circulation of the note, China and Malaysia had provided responses to the follow-up questions that 
Japan had posed to them in relation to the response s that they had provided in the context of their 
regular reviews (documents IP/Q/CHN/1/Add.2 and IP/Q/MYS/1/Add.1, respectively). 
14. The representative of Argentina
 said that responses to the pending questions would be 
communicated as soon as her delegation had received them from her capital. 
15. The representative of Japan  said that he appreciated the efforts made by China to reply to the 
questions posed by Japan.  His delegation was examining these responses, and wished to reserve its 
right to put additional and follow-up questions to China, if necessary. 
16. The Chairman  noted that, since its last meeting, the Council had made very little progress in 
receiving the remaining outstanding material and thus completing th e follow-up to the last pending 
reviews.  He once again urged the delegations concer ned to provide the outstanding material, so as to 
allow the Council to complete the follow-up to these reviews.  He suggested that the Council request 
the Secretariat to update its  note on pending reviews before the next meeting. IP/C/M/44 
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17. The Council took note
 of the statements made and agreed  to proceed as suggested by the 
Chair. 
(ii) Review of legislation of Armenia 
18. The Chairman  recalled that, at its meeting in June 20 03, the Council had agreed to review the 
legislation of Armenia, a newly acceded Member, at  its meeting in March 2004.  However, at that 
meeting, the Council, upon a request from the Gove rnment of Armenia, had decided to postpone the 
review to the present meeting.  Armenia's notific ation of its TRIPS laws and regulations had been 
circulated in document IP/N/1/ARM/1, and the texts of  the notified laws in the relevant law series of 
documents. Its responses to the Checklist of Issues on Enforcement had been circulated in 
IP/N/6/ARM/1.  Armenia had received questions fro m Switzerland (IP/C/W/419).  Its responses to 
these questions had been circulated in document IP/C/W/422. 
19. In accordance with the standard pr ocedures, the delegation of Armenia  provided a brief 
introductory overview of the structure of its legi slation 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/ARM/1, IP/Q2/ARM/1, IP/Q3/ARM/1 
and IP/Q4/ARM/1. 
20. The representative of Switzerland
 commended Armenia for its efforts to bring its legislation 
into conformity with the TRIPS Agreement and othe r international agreements.  He thanked Armenia 
for its responses to the questions posed by Switzerland.  The responses to these questions contained 
the information his delegation had been seeking.  He indicated that he would submit two follow-up 
questions to Armenia. 
21. The Chairman  requested that written copies of these follow-up questions be provided to the 
delegation of Armenia and the Secretariat.  In accor dance with the standard procedures, responses to 
them should be provided within eight weeks of the me eting.  He suggested that the Council take note 
of the statements made and revert to the matter at its next meeting. 
22. 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  
23. 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 it had received a communication from Switzerland (IP/C/W/423), which 
contained additional comments by it on its proposals submitted to WIPO regarding the declaration of 
the source of genetic reso urces and traditional knowledge in patent applications. 
24. Reporting on the consultations he had held on these three agenda items, he recalled that, at its 
meeting in March 2004, the Council had had extensiv e discussion on how future work on these three 
agenda items should be organized.  At that meeting, the Chair had concluded that it might be 
necessary for his successor to hold consultations  before the present meeting on this matter.  
Accordingly, he had held a series of consultations on this subject.  These consultations had confirmed that there was a common view that it would be usef ul to find a way of having a more structured and  IP/C/M/44 
 Page 5 
 
 
focused discussion in the TRIPS Council on these matters.  A number of options for how this could be 
done had been put forward and discussed.  He had detected some signs of flexibility and a broad 
willingness to engage in a process of identifying areas of convergence in regard to the provisions of 
Article 27.3(b), as had been suggested by the Africa n Group.  However, he regretted that, despite the 
efforts made by all parties, the consultations had not developed to a point where he would have been 
able to put a set of suggestions to the Council at this meeting. 
25. The representative of Switzerland  said that document IP/C/W/423 contained additional 
comments on the Swiss proposals to amend the Regulations of the Patent Cooperation Treaty (PCT), 
which had also been submitted to the sixth sessio n of WIPO's Working Group on Reform of the PCT 
in May 2004.  He recalled that the proposals would explicitly enable national patent legislation to 
require patent applicants to declar e the source of genetic resources and traditional knowledge in patent 
applications, if their inventions were based on such resources or knowledge.  The additional 
comments on the proposals concerned the use of term s, the concept of the source of genetic resources 
and traditional knowledge, the scope of the obligation to declare the source in patent applications, and 
possible legal sanctions for the failure to disclose or the wrongful disclosure of the source.  By 
submitting the additional comments to the TRIPS Council, Switzerland aimed at informing the TRIPS Council of its efforts in the WIPO's Working Group on  Reform of the PCT.  He noted that the latest 
communication contained in document IP/C/W/423 complemented the two previous communications 
contained in documents IP/C/W/284 and IP/C/W/400/Rev.1. 
26. With regard to the disclosure requirements unde r patent law, he said that paragraph 8 of 
Decision VII/19, adopted by the seventh meeting of  the Conference of the Parties of the CBD in 
February 2004, invited WIPO to address issues rega rding the interrelation between access to genetic 
resources and disclosure requirements in intellectual property rights applications.  It was his 
delegation's view that WIPO should make significant progress on these issues and report the result of 
its work to the CBD in time.  By submitting the additional comments on its proposals to the sixth 
session of the Working Group on Reform of the PCT, Switzerland intended to actively contribute to the work of WIPO in this regard.  He said that the work of the TRIPS Council in the context of paragraph 19 of the Doha Minist erial Declaration should benefit and draw upon the relevant work 
being carried out by WIPO.  This would help av oid duplication of efforts and prevent conflicting 
outcomes. 
27. The representative of India
 welcomed the Chair's efforts in undertaking the informal 
consultations to structure the discussion on the basis of the checklist of issues identified by a group of developing countries to pursue their proposal on the disclosure of the source of genetic material and 
associated traditional knowledge and evidence of benefit- sharing.  He said that this group of countries 
remained committed to pursue their proposal.  They were encouraged by the widespread support received for the checklist, although consensus coul d not be reached on structuring the Council's work 
on the basis of the checklist.  He reiterated his delegation's openness  to incorporating other related 
issues in the checklist or exploring different ways which could help the Council focus its discussion in 
a result-oriented manner.  Regarding the new submission by Switzerland, he said that it would help 
the Council address the concerns relating to the procedural issues involved in patent applications and 
the disclosure of the source of origin of biological materials. 
28. The representative of the European Communities
 said that further discussions on the three 
agenda items should be guided by three principles :  first, WTO Members should be faithful to the 
mandate under paragraph 19 of the Doha Ministeria l Declaration;  second, discussions should be 
conducted in a result-oriented manner to ensure that the implementation of the TRIPS Agreement and 
the CBD were mutually supportive, for which it wa s important that WTO Members, especially the 
demandeurs  should clarify what result they wished to obtain;  third, Members must focus discussions 
on a limited number of issues instead of continuing to have philosophical discussion on all the issues 
related to intellectual property and the CBD.  He said that the issues of the disclosure of origin, farmers' exceptions and the protection of plant varieties were good candidates for such a focused IP/C/M/44 
Page 6  
 
discussion.  With regard to traditional knowledge an d folklore, he said that Members could deal with 
certain disclosure issues related to  traditional knowledge and folklore, but that it was difficult to start 
discussions on setting up an international regime for the protection of traditional knowledge.  Since 
Members seemed to have reached an agreement to have a focused discussion, he urged Members to 
start identifying the issues they should focus on.  Referring to the Swiss proposals which had been 
submitted to WIPO's Working Group on Reform of th e PCT, he said that his delegation would come 
back to them at the Working Group's next meeting in November 2004. 
29. He then said that he would make preliminary comments on the checklist of issues contained 
in document IP/C/W/420, without prejudging the outcome and without prejudice to the EC's positions 
in possible formal negotiating processes in the WTO or elsewhere.  Regarding how an obligation for 
the disclosure of country and source of origin of the biological resource and associated traditional 
knowledge used in the invention would help in bette r examination of patents and in preventing cases of 
bad patents and what the meaning of disclosure of source and country of origin of the biological resource 
and of the traditional knowledge used in the invention wa s, he said that it was the view of his delegation 
that "disclosure of source or origin" referred to a requirement that a patent applicant should submit 
certain information to the patent office as regards th e source and/or geographical origin of the genetic 
resource or traditional knowledge used in his biotec hnological invention.  This requirement could be 
calibrated in various ways according to the scope of the requirement, the type of information required 
and the legal consequence of non-respect of the requ irement.  He said that such a requirement should 
be sufficiently flexible to take account of the fact that the patent applicant might not reasonably know 
the geographical origin of the genetic resources used in the invention.  For this reason, his delegation preferred to use the term "disclosure of source of genetic resources".  He said that, in principle, all applicants should know the source of genetic resources or traditional knowledge.  However, in certain 
circumstances it might be impossible or unreasonably burdensome for the applicant to investigate the 
entire chain backwards to the origin.  An applicant should only be requested in good faith to reveal the 
best information available or known to him. 
30. Regarding the advantage of the disclosure re quirement, he said that this requirement, 
provided it was properly calibrated, would contribute to mutual supportiveness between intellectual 
property systems and access and benefit-sharing regimes for several reasons.  First, the disclosure 
requirement would help the country who provided ac cess to genetic resource s to monitor and keep 
track of compliance with access and benefit-sharing rules, as well as with contractual arrangements 
between providers and users of genetic resources.  Source countries would be informed of the patent 
application which incorporated ge netic resources or traditional k nowledge through foreign patent 
offices.  This would enable them to check whethe r patent applicants respected national rules and 
contracts on access and benefit-sharing and to detect commercial benefits from the use of genetic 
resources.  Second, the disclosure requirement would increase confidence among bio-collectors and 
biodiversity rich countries and indigenous communities.  These countries or communities would 
generate less complex or burdensome but more effective national access and benefit-sharing regimes, 
thus creating a win-win situation for both providers and accessors.  Third, the disclosure requirement 
would help to prevent inappropriate patenting of genetic resources or traditional knowledge because 
patent offices could establish more accurate prio r art through more focused search.  Lastly, the 
disclosure requirement would act as a strong incentiv e for patent applicants to comply with domestic 
rules on access and benefit-sharing, if they existed, and/or contractual arrangements.  In sum, he said 
that the disclosure requirement would act as a supportive measure to biodiversity law at the national level to ensure transparency and to  enable source states to check whether their national rules had been 
respected.  It would also contribute to the effective implementation of the CBD.  Furthermore, he said 
that an essential complementary measure to make the disclosure requirement effective would be the 
introduction of a simple notification procedure in patent offices.  When a patent office received 
information on the source of genetic resources or traditional knowledge, it could notify this 
information to the clearing-house mechanism unde r the CBD.  The information would therefore be 
available to all CBD parties as well as to the public.  The introduction of such a procedure should not 
lead to an unnecessary administrative burden for the patent office.  IP/C/M/44 
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31. As regards what the legal effect of wrongful disclosure or non-disclosure would be, he 
said that the effect could lie both within and outside patent systems, such as the one suggested by the 
Swiss proposal.  He said that a requirement wo uld be effective only if non-respect of it was 
sanctioned.  However, at this st age, it was the European Communities' view that such sanction should 
lie outside patent law or should be self-standing, such as civil law or administrative sanctions.  He 
informed the Council that this issue was at present under further internal discussion as a consequence 
of the European Commission's Communication of  December 2003 on the implementation of the Bonn 
guidelines. 
32. As regards the question of on whom the burden of proof should lie, he said that 
applicants should be requested to provide all reas onably available evidence of the source and/or 
geographical origin of genetic re sources and traditional knowledge.  It was up to those who might 
wish to contest such disclosure in an administrativ e procedure or before a court to provide contrary 
proof according to usual rules. 
33. Regarding the inclusion of the proposed obligation of disclosure of source and country of 
origin and associated traditional knowledge in the TRIPS Agreement, he said that his delegation did 
not exclude the possibility of inserting such an obligation in the TRIPS Agreement, provided it was 
properly calibrated.  However, he thought that, at th is stage, it might be premature to start discussions 
on how and where such a requirement should be se t in the TRIPS Agreement.  The answer to this 
question would depend on what substance could be agreed on.  There were many options, such as 
inserting a new article or a new obligation to the existing articles of the TRIPS Agreement. 
34. Turning to the disclosure of the evidence of prior informed consent and benefit-sharing under 
relevant national regimes, he said that, at this stage, his delegation saw serious problems with the 
introduction of a system whereby patent applicants we re required to provide such evidence.  First, it 
was difficult for patent offices to judge whether foreign country legislation on access and benefit-
sharing had been complied with.  The main function of patent offices was to ensure that patentability 
requirements were met, which was a difficult task , especially in the field of biotechnology.  
Requesting patent offices to verify whether patent applicants had respected al l legal rules related to 
the material used in their inventions would seri ously overburden patent offices and create legal 
interpretation problems.  He said th at the patent office was not required to check whether the applicant 
had paid VAT on the lab material used for the invention or whether he had respected the legal 
requirement for the stockpiling of the chemicals used in the research activity although this 
requirement was important to ordre public .  Therefore, he said that although it would be reasonable to 
entrust patent offices with the task of collecting information on the source of genetic resources or 
traditional knowledge and transmitting it to a clear ing-house mechanism, checking compliance with 
foreign access and benefit-sharing ru les would be one step too far at this stage.  Second, he said that 
many countries did not yet have national legislati on on access and benefit-sharing and were not in the 
position to deliver the certificate of origin, which made the requirement of the disclosure of the 
evidence of access and benefit-sharing more  difficult, if not impossible, to manage. 
35. With respect to how furnishing the evidence  of prior informed consent would facilitate 
achieving the objectives of the CBD of ensuring prior informed consent and a harmonious 
relationship between the CBD and the TRIPS Agre ement and whether contractual arrangements for 
ensuring prior informed consent and benefit-sharin g could suffice to achieve the objectives of the 
CBD in this regard, he said that effective impl ementation of the CBD resi ded in a combination of 
legislative, regulatory and contractual approaches.   
36. Regarding how the evidence of prior informed consent through approval of authorities under 
the relevant national regime should be provided for,  he said that a uniform approach in the form of 
uniform certificates as proposed by several countries and non-state actors could be a solution.  He said 
that proposals to this effect had been made inter alia  by Switzerland as well as by the like-minded 
mega-diverse countries in the Canc un Declaration of 18 February 2002.  The seventh meeting of the IP/C/M/44 
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Conference of the Parities of th e CBD had adopted terms of refere nce for the nego tiation of an 
international regime on access and be nefit-sharing.  The issue of a cer tificate of origin was part of the 
terms of reference.  The European Communities agreed that this issue should be dealt with as a matter 
of priority. 
37. Regarding what the obligation should be if there was no national regime in the country of 
origin, he said that since many countries did not have such a national regime or had a region that was 
not yet fully operational or effective, it was prematur e to consider the requirement of disclosure of  
evidence of access and benefit-sharing. 
38. The representative of Kenya
 said that some delegations had indicated in the informal 
consultations that they would like to come back at  a later stage to the suggestions on how to organize 
the further work made by Chair in the course of th ese consultations.  Therefore, he hoped that the 
Chair's suggestions would remain on the table so that they could come back to them after further 
consultations. 
39. The representative of Brazil  fully supported the intervention made by India on behalf of the 
co-sponsors of document IP/C/W/420.  Referring to the new Swiss submission, he said that it was constructive and should be complementary to the discussion in the TRIPS Council.  He thanked the 
European Communities for their constructive statement, and said that all the matters in the checklist 
should be looked at carefully by the Council.  He hoped that his delegation would be in a position to 
reply to the points raised by the European Communities in the near future.  He also said that the 
European Communities' substantive and constructive intervention and other favourable reactions to 
the checklist of issues showed that there was plenty of space to move forward on this issue in the 
Council. 
40. The representative of Malaysia
 said that her delegation understood the need for a focused and 
structured discussion on the issues under paragraph 19 of the Doha Ministerial Declaration.  She 
indicated that the checklist of issues identified in  document IP/C/W/420 could form a basis for the 
Council's further discussion.  She also noted that ther e was flexibility in adding other elements to this 
discussion but it should be without prejudice to the positions of delegations on these issues.  She said 
that further discussions and clarifications on certain  terms, such as "country of origin" and "source of 
origin" would be useful.  As regards disclosure of the evidence of benefit-sharing, she sought clarification on whether it would be  applied to the provider of genetic resources or to the provenance 
of genetic resources. 
41. Further she raised preliminary questions on the Swiss submission:  first, under the Swiss 
proposals, patent applicants were required to de clare the source of genetic resources and traditional 
knowledge, which included all entities competent to grant access and participating in the benefit-
sharing.  As to the scope of the obligation to declare the source, the Swiss proposals suggested that the 
invention must make immediate use of genetic resour ces, that is depending on the specific properties 
of these resources.  She sought clarification of the term "immediate", whether it denoted a time dimension other than making use of a  specific property of the genetic resource.   Second, as regards the definition of the source,  Switzerland viewed th e source as entities involved in granting access to 
genetic resources and traditional knowledge and the shar ing of benefits arising from their utilisation.  
She questioned whether the declaration of source should be made by any one of these entities or as 
many as could be identified and what the conseque nce of inadvertently leaving some out in patent 
applications would be.  Third, referring to paragra ph 22 of document IP/C/W/423 which said that the 
source could include databases and other publica tions, she questioned whether these databases and 
publications should be involved in access and benefit-sh aring or be just treated as a source of origin.  IP/C/M/44 
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42. Reacting to Brazil's intervention, the re presentative of the European Communities  said that it 
was crucial that the demandeur  countries could put forward their views on this issue as soon as 
possible.  Those which had experiences on implementing relevant requirements could share their 
experiences with others and this was essential for Me mbers to have further discussions on this issue. 
43. Referring to the point made by the delegation of Kenya, the representative of Canada  said that 
it would be helpful to have a more focused and structured work plan.  Therefore, he hoped that the 
Chair's proposal presented in the informal consultation on 10 June 2004 was still on the table.  He also 
noted that the work plan would be without prejudice to Members' positions, that any new issue could 
be raised, and that the proposals that had already been tabled would still remain on the table. 
44. The representative of Australia  said that her delegation supported the efforts made to structure 
discussions on these three agenda items.  She said that the suggestions that the Chair had made in the 
course of informal consultations had taken Member s in a helpful direction and would allow Members 
to work in a manner that was consistent with th e Doha Declaration.  She noted that the proposal 
would be without prejudice to Members' positions and other proposals that had already been or might 
be on the table.  She further indicated that Members needed to have a proper examination of, as indicated by paragraph 19 of the Doha Declaration,  where they were now on some of these issues.  
She agreed with the European Communities that Me mbers needed a much firmer basis for further 
discussions, particularly as regards national experience. 
45. The representative of New Zealand
 said that her delegation su pported the efforts made to 
facilitate the progress under paragraph 19 of the Doha Declaration.  She said that the three issues were 
important to New Zealand and deserved the TRIPS Council's consideration.  She agreed that the 
Council needed to have a more structured discussi on.  It was a sensible way forward for Members to 
separate the issues and then focus on the issues which they could reasonably expect to make progress 
sooner or later.  She supported the comments made by Canada, Kenya and Australia, hoping that 
Members could return to the Chair's suggestions that had been put forward in the informal 
consultation. 
46. The representative of the United States  said that his delegation, like a significant number of 
other WTO Members, saw no conflict between the TRIPS Agreement and the CBD and believed that 
they might be implemented in a mutually supportive manner.  Nonetheless, his delegation could agree 
that the TRIPS Council should have a more organized work plan to support continued discussions on 
the relationship between the TRIPS Agreement and the CBD as well as related traditional knowledge.  
However, he noted that the elements of the work plan should be broad enough to ensure all Members' 
views to be properly considered an d expressed.  His delegation continued to believe that the checklist 
as proposed in document IP/C/W/420 was not the best approach for the Council at this time. 
47. He noted that, in the Council's previous discussions aimed at fulfilling the Doha mandate, 
Members had appeared to generally share certain broad policy objectives.  His delegation believed 
that these commonly agreed objectives could better structure the TRIPS Council's work without prejudice to Members' views on appropriate mechanis ms, means or forums to pursue these objectives.  
These objectives might include achie ving an appropriate access to traditional knowledge and genetic 
resources as well as equitable benefit-sharing, preventing misappropriation of traditional knowledge 
and genetic resources as well as preventing improperly  granted patents.  Within the context of these 
topics and the scope of the Doha mandate, he believed that Members could identify their concerns, share their national experiences, and develop some options and proposals, which would provide more 
specific focus than the previous TRIPS Council's wo rk, and therefore help to facilitate the Council's 
discussions. 
48. As regards the substantive comments made by the European Commu nities and Switzerland, 
he reiterated that his delegation continued to oppose the efforts to try to enforce the CBD through the 
patent system.  Instead, his delegation continued to believe that national sy stems, independent from IP/C/M/44 
Page 10  
 
patent systems should be adopted to regulate the is sues of prior informed consent, benefit-sharing and 
misappropriation of resources.  In conclusion, he reiterated that his delegation remained open to 
working with others on creating a better structure fo r discussions in this regard, but the work plan 
must be broad enough to ensure that all Members'  views could be properly considered and expressed 
during the debate. 
49. The representative of Norway
 recalled that, at the Council's last meeting, his delegation had 
indicated that the checklist in document IP/C/W/420 could be a basis for the Council's deliberations.  
He said that the list of issues should be sufficien tly comprehensive so as to reflect all the discussions 
Members had had in the past few years and should  not prejudice Members' views on those issues. 
50. The representative of Japan  said that his delegation agreed that the Council should focus its 
discussions on a limited number of items.  However, he thought that the checklist in document 
IP/C/W/420 did not seem to be constructive.  Theref ore, his delegation supported to continue informal 
consultations on these matters. 
51. The representative of Chinese Taipei  said that his delegation would make comments on 
Switzerland's new submission in due course.  Since many issues needed to be clarified in different 
dimensions, it would be helpful to have a focused discussion.  Therefore, he supported the Chair's 
suggestion to focus the discussion on a limited number  of items, such as the disclosure requirements. 
52. The representative of Switzerland  said that his delegation would respond to the questions 
posed by the delegation of Malaysia at the next  TRIPS Council meeting.  With regard to the 
procedure, he echoed some delegations' support to the Chair's suggestions on the future work of the 
Council. 
53. The Chairman  suggested that the Council revert to th e questions raised concerning the Swiss 
paper at its next meeting.  As regards how to organize future work on these three items, he recalled that many favourable comments had been made on the ideas he had put forward at the Council's 
informal consultation on 10 June 2004.  He had detected willingness to find a way forward which 
would enable the Council to move its discussions to a more substantive stage.  He said that the spirit 
of the suggestions he had made in the informal consultations was to find a way forward by looking at 
all the proposals submitted by delegations so far and to come up with a structure, which would avoid 
prejudicing the positions of delegations.  He recalled that, in the course of the informal consultations, 
he had made it clear that all the papers that had been submitted would be fully taken into account in 
the Council's work under any such structure.  He reaffirmed that agreement to work on the basis of 
any such structure should not be taken as in itself prejudicing the position of any delegation on any 
matter of substance.  Responding to the questions raised by some Members, he said that all the 
proposals which were on the table, including the suggestions he had made in the course of the 
informal consultations, would remain on the table.  Any other proposal which might be put forward 
should also be taken into account.  He suggested that the Chair continue consultations on how future 
work on these three agenda items should be organized.  Finally, he encouraged Members to make constructive comments on the existing proposals an d to try to find a way of having a focused and 
structured discussion in the TRIPS Council on these three items. 
54. The Council took note
 of the statements and agreed  to proceed as suggested by the Chair. 
F. REVIEW OF IMPLEMENTATION OF THE TRIPS AGREEMENT UNDER ARTICLE 71.1 
55. No statements were made under this agenda item.  The Council agreed  to revert to the matter 
at its next meeting.  IP/C/M/44 
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G. REVIEW OF THE APPLICATION OF THE PROVISIONS OF THE SECTION ON GEOGRAPHICAL 
INDICATIONS UNDER ARTICLE 24.2 
56. The Chairman  recalled that Article 24.2 provided that  the Council should keep under review 
the application of the provisions of the geographical  indications Section of the TRIPS Agreement, and 
that the first such review should take place with in two years of the entry into force of the WTO 
Agreement.  At its meeting in June 2003, the Council had invited those Members that had not 
provided information in response to the Checklist of Questions contained in documents IP/C/13 and 
Addendum 1 to do so.  Since the Council's meeting in March 2004, further information in response to 
the Checklist had been received from Chinese Taipei.  These responses had been circulated in 
Addendum 30 to document IP/C/W/117.  To date, the Council had received responses to the Checklist from 46 Members. 
57. The representative of Chinese Taipei
 said that her delegation's responses to the Checklist were 
intended to facilitate Members'  understanding of the relevant  systems in Chinese Taipei.  
Geographical indications were eligible for prot ection under the Trademark Act, the Tobacco and 
Alcohol Administration Law, and the Fair Trade Law.  They were generally protected as certification 
marks under the Trademark Act on the basis of the "first come, first served" principle.  If the use of geographical indications constituted unfair competition , the Fair Trade Law could provide protection.  
Mislabelling was regulated under the T obacco and Alcohol Administration Act. 
58. The Chairman
 recalled that, prior to the Council's meeting in March 2004, his predecessor 
had held consultations on how to carry forward this review.  In the light of those consultations and the 
discussions at that meeting, he had concluded that there remained differences of view on how to carry 
forward the review.  The Council had agreed to keep this matter on its agenda so that Members could 
revert to the issue of how to structure the review at a later stage. 
59. The representative of Australia  said that she agreed with the Chair's characterization of the 
situation as regards the review.  She thanked Chinese Taipei for its responses to the Checklist of 
Questions, and encouraged other Members to make such contributions in order to build a basis for the Council's further consideration of this issue. 
60. The representative of the European Communities
 said that his delegation would examine 
Chinese Taipei's responses and come back with further questions at the Council's next meeting.  As 
regards how to carry forward the review, he encour aged the Chair to think about the possibility of 
tabling an option paper which would help delegations to move forward. 
61. The representative of Kenya  sought clarification from the European Communities as regards 
the registration of foreign geographical indications u nder the EC regulation.  He said that information 
from the Kenyan producers indicated that the regu lation might be unfriendly in relation to foreign 
applications. 
62. Responding to the question posed by Kenya, th e representative of the European Communities  
said that the EC regulation on the protection of geographical indications and designations of origin for 
agricultural products and foodstuffs (Regulation No. 2081/92) applied to geographical indications 
relating to areas located inside as well as outsid e the European Communities.  For this purpose, the 
Regulation laid down rules relating to the registra tion of geographical indications from outside the 
European Communities which closely paralleled the provisions applicable to geographical indications 
from inside the European Communities.  The purpose of these specific rules, some of which had been 
recently introduced by Regulation No. 692/2003,  was to facilitate the registration of non-EC 
geographical indications while at the same time en suring that geographical indications from outside 
the European Communities corresponded to the definition of a geographical indication. IP/C/M/44 
Page 12  
 
63. As to the conditions which must be fulfilled for registration to take place, he said that some 
WTO Members had considered, on the basis of Article 12(1) of Regulation No. 2081/92, that the 
registration of geographical indications from outside the European Communities was possible only 
under conditions of "reciprocity and equivalence".  However, Article 12(1) of Regulation No. 2081/92 
provided that it applied "without prejudice to international agreements", including the TRIPS 
Agreement.  Since WTO Members were obliged to pr ovide protection to geographical indications in 
accordance with the TRIPS Agreement, the recipr ocity and equivalence conditions mentioned in 
Article 12(1) of Regulation No. 2081/92 did not apply to WTO Members.  In other words, the EC GI 
register was open to geographical indications from other WTO Members, and the registration of such 
geographical indications may take place on the same substantive conditions which applied to the registration of geographical indications from EC member States. 
64. The representative of Australia
 said that her delegation had serious concerns about the 
consistency of the above-mentioned EC Regulation with the TRIPS Ag reement.  The response by the 
European Communities was not clear-cut and did not give the answer her delegation was seeking.  As 
regards the question of whether or not there should be an option paper, she said that, although she thought that such a paper was not necessary at this point, she preferred to leave the question in the Chair's hands. 
65. The representative of the United States
 generally supported the remarks by the representative 
of Australia, particularly regarding a possible option paper.  He said that the preparation of such a 
paper seemed premature at this time.  However, his delegation was open to being further engaged in 
this matter, including possible Chair's further consultations with Members. 
66. The Chairman  said that, as regards the specific sugg estion by the European Communities, this 
was a matter for the Chair to reflect upon and cons ider after further contacts with delegations. 
67. The Council took note  of the statements made. 
H. DECISION ON THE IMPLEMENTATION OF PARAGRAPH 6 OF THE DOHA DECLARATION ON THE 
TRIPS AGREEMENT AND PUBLIC HEALTH  
68. The Chairman  recalled that, at its meeting of 30 August 2003, the General Council had  
adopted the decision on "Implementation of Paragraph 6 of the Doha Declaration on the TRIPS 
Agreement and Public Health" (WT/L/540).  Paragr aph 11 of that Decision provided that the 
Decision, including the waivers granted in it, shoul d terminate for each Member on the date on which 
an amendment to the TRIPS Agreement replacing its pr ovisions would take effect for that Member.  
Furthermore, it instructed the TRIPS Council to initi ate, by the end of 2003, work on the preparation 
of such an amendment with a view to its adoptio n within six months, i.e. by June 2004, on the 
understanding that the amendment would be based, where appropriate, on the Decision, and on the 
further understanding that it would not be part of th e negotiations referred to in paragraph 45 of the 
Doha Ministerial Declaration. 
69. He recalled that, at the Council's meeting in March 2004, his predecessor had reported on his 
consultations on the implementation of paragraph 11 of the Decision.  In summarising his report, he 
had noted his consultations had revealed that there seemed to be significant differences among 
delegations in regard to the subs tantive content and the legal form that an amendment to replace the 
paragraph 6 Decision should have, although many delegations had emphasised that they remained 
ready to consider alternative solutions.  He had concluded that further work was required. 
70. The Chairman said that his own consultations pr ior to the present meeting had indicated that, 
in regard to issues of content and legal form, positions had not evolved.  With regard to the issue of timing, he said that there was general acceptance among delegations that the Council would need 
more time in order to complete its work on th e amendment.  As regards such further work, he  IP/C/M/44 
 Page 13 
 
 
mentioned four points on which his consultations ha d indicated that there was no disagreement.  First, 
given that the Decision remained in force until the amendment came into force, providing more time 
would not mean that any gap in legal cover would be created.  The second was that all Members 
continued to be committed to replacing the Deci sion of 30 August 2003, with an amendment to the 
TRIPS Agreement, as called for by paragraph 11 of that Decision.  The third was that the time-frame 
specified in paragraph 11  was one which provided for flexibility, with the use of the words "with a 
view to its adoption within six months", and this left  it open to the TRIPS Council to provide for more 
time for this work if necessary.  The fourth point was that paragraph 8 of the Decision provided for 
the TRIPS Council to review its functioning annually,  which  meant that the first such review would 
take place later in the year.  
71. While there was a range of views on the arra ngements that should be made for the further 
work on this matter, the consultations had indicated a willingness to look posi tively at finding a way 
forward on the basis of a formulation where the Council would agree to continue its work on the 
preparation of the amendment with a view to th e TRIPS Council making a recommendation by the 
end of March 2005, so that the General Council coul d conclude its work on the amendment at its first 
meeting thereafter. 
72. The Chairman drew the attention of the Council to the addendum to the note by the Legal 
Affairs Division of the Secretariat on the legal si gnificance of footnotes in WTO agreements, dated 
12 May 2004, which had been prepared at the reque st of his predecessor.  The note attempted to 
respond to some additional questions of a legal nature that had been raised by a number of Members 
when the first note had been discussed at the Council's informal meeting of 4 March 2004.   
73. The representative of Nigeria  said that, while the African Group was in favour of the 
Chairman's proposal concerning the conclusion of the work by the end of March 2005, it believed that 
the Council could conclude such work even before that  date.  Further, with regard to the note of the 
Legal Affairs Division, he said that the African Group would present written comments on it at a later 
stage. 
74. The representative of Chinese Taipei  said that he believed that the amendment should remain 
essentially technical and neutral in nature in order to translate into the text of the TRIPS Agreement 
exactly what the Council had decided, without any risk  of alternative interpretations.  He accepted the 
extended timeframe and hoped that the Council could successfully conclude the amendment during 
that period. 
75. The representative of Tanzania  said that the LDC Group would revert back to the Chairman 
on his proposal. 
76. The representative of Lesotho  associated himself with the statement that Tanzania had made 
as the coordinator of the LDC Group and said that, fo r his delegation, the lack of an amendment to the 
TRIPS Agreement meant that the nature of the D ecision of 30 August 2003 remained temporary and 
that it remained difficult for Members with insuff icient manufacturing capacity to attract investments 
in the pharmaceutical sector so as to improve their capacity to address their public health concerns.  
77. The representative of Argentina  said that she could accept the proposal the Chairman had 
formulated on extending the timeframe.  She wanted, howe ver, to refer in greater length to two issues 
which the Chairman had raised, namely the fo rm and the content of the amendment and the 
Secretariat notes which had been circulated. 
78. She said that, in its note of 1 March 2004, the Secretariat had stated that neither Article X of 
the WTO Agreement nor the Vienna Convention on the Law of Treaties referred to the question as to whether a footnote could be used to amend the subs tance of a treaty.  The Secretariat had noted the 
existence of a considerable number of footnotes whic h it described as "substantive" in nature.  In its IP/C/M/44 
Page 14  
 
note of 12 May 2004, the Secretariat further considered that the precedents set by the panels and the 
Appellate Body of the WTO confirmed that footnotes had been used for substantive provisions in 
several WTO agreements and were in terpreted in the same way as provi sions in the main text of the 
agreements concerned.  The Secretariat had concluded that there was no formal reason either in the 
law or the jurisprudence of the WTO that would preclude amending an agreement, including the 
TRIPS Agreement, through a footnote.  Indicating that the Dispute Settlement Body had not 
differentiated the legal effects of footnotes from th e main text of the Agreement, the Secretariat had 
concluded that it would not be contrary to the TR IPS Agreement to amend it through a footnote as 
long as the procedure of Article X of the WTO Agreement was respected. 
79. She said that although the 12 May note of the Secretariat had indicated in paragraph 3 that it 
did not intend to analyse the appropriateness of each course of action, she believed that paragraph 29 
did prejudge the appropriateness of the different co urses of action by stating that "apart from a 
footnote", "other" possible legal forms had been ment ioned, as if these were of secondary importance. 
80. In her delegation's view, the main issue with re gard to footnotes relate s to the interpretation 
made in general in the context of treaties, in par ticular to the WTO agreements and more specifically 
to the TRIPS Agreement.  She added that it was no t customary under the law of treaties to amend a 
treaty through a footnote which was usually considered  to be subordinate in nature to the main text 
and could not take precedence over it, but could mere ly be supplementary or clarificatory in nature.  
The legal form was of particular importance with respect to the amendment following the Decision of 
30 August, since such an amendment would not be me rely a clarification, but would modify the legal 
effects of Article 31 of the TRIPS Agreement.  Ac cording to her delegation, an analysis of the 
footnotes in the WTO agreements referred to by the Secretariat as being "substantive" would show 
that most of them served the purpose of clarifica tions referring to the way in which the text of the 
treaty should be interpreted or supplemented.  For example, the TRIPS Agreement contained 
14 footnotes, none of which contradicted the main body of the text, although footnote 12 was the only 
one which could be considered to modify the effects of the Agreement, since it contained the sentence "shall not be required to".  Even this footnote did not in fact create an exception to an obligation or contradict the main text – as would be the case if  the Council introduced the Decision of 30 August 
into the TRIPS Agreement.  Besides, the footnotes to  the Agreement were introduced at the time of its 
negotiation and not as the result of later amendmen ts.  On the occasions when the provisions of 
GATT were amended, the amendments were  set out in the form of protocols. 
81. As to the jurisprudence cited by the Secretaria t, she did not see any relevant material with 
regard to how to interpret a footnote when it was no t supplementary or merely subordinate to the main 
text.  In view of that, it needed to be determined whether a footnote was the appropriate legal form for 
creating an exception to Article 31 of the TRI PS Agreement.  Article X of the WTO Agreement 
contained the procedure for amendment of WTO agreements and the Secretariat had clearly set out in 
its documents that this procedure must be followed in incorporating the Decision of 30 August through an amendment, irrespective of the legal fo rm that was chosen for the amendment.  A footnote 
would thus not simplify the amendment procedure to the Agreement since the Council would have to 
follow the procedure of Article X.  What, then, were the advantages of adopting an amendment 
through a footnote?  The proponents of this form of amendment were those who advocated 
incorporating not only the Decision, but also the St atement of the Chairman of the General Council 
(hereinafter referred to as "the Statement").  The only motivation Argentina saw for such proposal was 
that a footnote would facilitate the introduction of the Statement into the TRIPS Agreement, giving it 
the same legal status as the Decision. 
82. She said that the Statement had clearly been drafted to enable all Members to join the 
consensus on the adoption of the Decision.  In the view of her delegation, the Statement was a 
unilateral instrument without any binding effect and its legal value and status were distinct from that 
of the Decision adopted by the General Council.  At no stage had the Chairman or the Members construed the Statement as being part of the Decision, but rather as an instrument which would  IP/C/M/44 
 Page 15 
 
 
facilitate a consensual decision on the Decision.  Fr om the standpoint of Article 31 of the Vienna 
Convention on the Law of Treaties, one could analyse whether the Chairman's Statement could in fact 
be considered to be part of the "context" of th e amendment.  Her delegati on believed that for the 
purposes of interpretation, the Statement did not re flect an "agreement" between the parties within the 
meaning of paragraphs 2(a) and 2(c) of Article 31 of  the Convention.  She said that the Secretariat had 
cited precedents to determine whether the Statement could be considered under Article 31.2(b) of the 
Convention (i.e. as "any instrument which was made  by one or more parties in connection with the 
conclusion of the treaty and accepted by the other pa rties as an instrument related to the treaty").  She 
also said that the Secretariat had taken the view that a statement made by one party could be 
considered as part of the context of the treaty or as an instrument related to the treaty.  In the case at hand, she said, the Chairman's Statement was not, however, an instrument which had emanated from a "party", i.e. a WTO Member. 
83. The representative of Argentina said that it wa s equally clear that there was no consensus 
amongst Members with regard to the legal value of the Statement, and indeed, most Members had 
explicitly stated that the Statement lacked legal value to become part of the amendment.  Her 
delegation believed that only the Decision of 30 Au gust adopted by Members should be considered in 
the process to amend the TRIPS Agreement.  The Secr etariat had stated that the incorporation of the 
Statement would not be decisive in assessing the lega l value of the Statement, but that the latter would 
depend on the actual text of the footnote.  Her de legation disagreed with that argument, since there 
should be unanimity on the value of the Statement for it to have legal value in the light of Article 31 
of the Vienna Convention. 
84. In conclusion, the representative of Argentin a said that, in view of the foregoing, her 
delegation believed that the most important value to be  preserved was legal security.  She said that the 
Chairman's Statement could not be part of the am endment as it was a unilateral statement which was 
not included in the agreement reache d by Members, i.e. in the Decision of 30 August, and to introduce 
it would establish a bad precedent amounting to a disguised amendment to the provisions of the TRIPS Agreement through unilateral instruments, whic h were not generated by one of the contracting 
parties and which did not constitute an agreement between the parties.  In her view, a footnote 
referring to a decision such as the one of 30 August 2003 could prove controversial.  She further said 
that the amendment did not have as its objective th e clarification of the text  of Article 31 or to 
supplement it to avoid its misinterpretation, but rather an authorisation to Members to carry out 
activities which, according to Article 31, were not at  present permitted.  Th e amendment would be the 
subject of interpretation in the future and this ta sk would not be facilitated by an amendment in the 
form of a footnote.  Apart from the fact that there were no precedents on this form of amendment, her 
delegation did not consider such an approach to be appropriate from a systemic standpoint. 
85. The representative of Israel
 said her delegation was committe d to concluding the process 
related to the Decision on  the TRIPS Agreement and Public He alth and welcomed the work plan 
suggested by the Chairman.  Since the text of th e 30 August Decision contained all the necessary 
elements, an amendment to the TRIPS Agreemen t should not require any renegotiation.  She 
reaffirmed Israel's position that the Chairman's Statement could not be included "as is" in any 
amendment. 
86. The representative of the European Communities  said that his delegation accepted, with 
regret, the proposal of the Chairman for extending the deadline for agreeing to an amendment because there was no other choice.  He said that the European Communities had always favoured an 
amendment as the best way to guarantee legal securi ty for those who needed it.  His delegation did not 
understand how the Council had come to a situation where it could not agree that this should be a 
simple technical exercise of inserting what had been agreed upon in August 2003 into the TRIPS 
Agreement, but it seemed that some Members wanted to  get, in this process, what they could not get 
in August 2003.  If this was the case, there was no indication in the foreseeable future that the Council could come to any agreement on the substance which was different from what it had managed to agree IP/C/M/44 
Page 16  
 
a few months earlier.  He had the impression that some suggestions that had been made on the 
substance departed from what had been agreed, e ither by changing the balance between the Decision 
and the Statement or by trying to review some conditions that had been agreed to.  
87. He said that meanwhile Members did have a waiv er, which, while not being the best solution 
available, was a good solution and one on which Me mbers could act.  He said that no Member had 
notified its need for importing medicines under the system, but there might have been very good 
reasons for that.  For instance, until Canada and No rway had adopted legislation allowing the use of 
the system for production for export, it had not been possible to find supplies under the system.  
Nevertheless, he said that this gave grounds to cert ain industrialised countries that had been sceptical 
on the issue of TRIPS and public health to questio n whether the real problem was patents.  This was 
not the view of his delegation which had agreed to address the problem in the TRIPS Council and had 
finally agreed to a solution.  He was interested in learning the reasons why no notification had been 
made, because that would help his delegation in responding to questions on this issue, as the 
Commission was to propose legislation to Parlia ment to implement the paragraph 6 agreement.  
88. He said that the delegation of Argentina had raised valid and pertinent points, although he 
could not agree with all issues rais ed.  He clarified that his delega tion believed that the Statement had 
a different legal status from the Decision.  This di d not mean that the Statement had no legal value at 
all as it was part of the context of the Decision, re ferred to the Decision and had been read out in the 
meeting where the Decision had been adopted.  The value of the Statement was that it did clarify 
some issues, making more explicit what was al ready in the Decision but it did not and could not 
change the content of the Decision.  His delegation  believed that there was no need to upgrade the 
legal value of the Statement and that it would be inappropriate to upset the balance between the 
Decision and the Statement or to downplay the impo rtance of the Statement.  He believed that the 
Statement was important for one WTO Member to ad here to the Decision, and the Council had to 
respect this.  He said that the Statement was on the record of the General Council meeting that had 
adopted the 30 August Decision and it expressly rela ted to the Decision.  Since the amendment would 
be based on the Decision and in principle should be almost a copy of it, the Statement should and would automatically continue to apply to the new TRIPS provisions.  
89. As regards the legal form, he said that his de legation was open to a footnote, so long as it 
would change the rights and obligations of Me mbers along the lines that had been agreed on 
30 August 2003.  If a number of Members felt that a footnote was inappropriate, perhaps more for 
political reasons, his delegation would prefer one paragraph in the TRIPS Agreement, which would 
clearly set out the new exception, and an annex to the TRIPS Agreement, which would list all the additional conditions as they appear ed in the Decision.  His delega tion could equally agree that the 
exception be part of a footnote, although he saw no reason why it should be in a footnote if usually rights and obligations were part of the text of an agreement. 
90. He said that the Commission was working on the regulation to implement the paragraph 6 
decision to allow producers in Europe to rely on a compulsory licence for export, but that might take 
time since the European Communities had very specifi c decision-making procedures to be respected.  
The Commission had almost finalised its draft and, if it could be agreed upon within the Commission 
by summer 2004, the Commission could submit a proposal to the European Parliament.  His 
delegation hoped that the Commission could do it before  it resigned by the end of October and, if this 
were not the case, then the next Commission w ould make it before Dece mber 2004 after which it 
would have to be approved by the European Parliament and the Council.  
91. The representative of Kenya
 stated that he would have preferred to have had a permanent 
solution in place by the date of the meeting.  He sa id that the Council was guided by paragraph 11 of 
the Decision, especially where it stated that the amendment would be based "where appropriate" on 
the Decision.  He informed the Council that Kenya was in the process of notifying but had found out 
that it was not very easy to use this particular  solution and that was why he wished to have a  IP/C/M/44 
 Page 17 
 
 
permanent one in place so that his country coul d amend its domestic laws.  He added that Kenya 
would notify its use of the system most probably before the end of the year.  Finally, he reminded 
Members of the process that the Council went through on 28 and 29 August 2003, when there had 
been other statements that were also important to convince delegations to accept the Statement, 
especially the statement made after a consultation undertaken by the representative of South Africa. 
92. The representative of Turkey  expressed his delegation's unconditional acceptance of the 
Chairman's proposal concerning the extension of the timeframe.  He said that his delegation agreed 
fully with Argentina's intervention, not for political  or juridical reasons, but because his delegation 
believed that the modification of the Agreement by a footnote would be a fundamental error.  He said 
this would be like modifying a constitution or a statute by a ministerial circular. With regard to the legal value of the Statement, his delegation shared  the views of the European Communities.  Finally, 
he said that these were only preliminary views and re served the right to state his definitive position at 
a later meeting. 
93. The representative of the Philippines
 said that his delegation was open to the Chairman's 
proposal, and believed that even if the Council did not reach an Agreement on the Chairman's formulation by 30 June, the Council's mandate cont inued.  His delegation supported the statement 
made by Argentina.  He agreed with the statement of Kenya that other statements made on the record 
at the time of the adoption of the Decision in th e TRIPS Council and prior to the adoption of the 
Decision in the General Council were integral part s of the context of the adoption of the Decision.  
With regard to the Secretariat's note, he said that  such a note had no legally binding value, and the 
positions stated therein had not been  agreed upon by the membership and should not be accorded any 
legal probative value.  He said that the footnote approach was not considered appropriate by his 
delegation to incorporate such an importa nt amendment to the TRIPS Agreement. 
94. The representative of Switzerland
 said that his delegation could agree with the Chairman's 
proposal to extend the deadline for the work of the Council on the amendment.  Like Kenya, he 
wished that the Council had met the deadline an d had fulfilled its mandate as was foreseen in 
paragraph 11 and looked forward to completing this as quickly as possible.  He believed this to be a 
technical exercise and one should not attempt to change the substance of the agreement that had been 
confirmed in 30 August 2003. 
95. He pointed out the helpfulness of the notes prepared by the Secretariat on the legal 
significance of footnotes and said that his delegati on was surprised with the intervention of Argentina 
and its interpretation of the note.  He understood that the note had confirmed that amendments of 
WTO agreements, such as the one to be made for implementing the paragraph 6 Decision, could take 
the legal form of footnotes.  He added that the note had stated that the TRIPS Agreement already 
contained substantive footnotes providing for limited exceptions to provisions set out in the body of 
the text.  This approach seemed to be perfectly appropriate for introducing the solution Members had 
found into the TRIPS Agreement and to do this in an efficient and expeditious manner since it would 
allow, by way of reference, to incorporate the 5-pa ge long text of the paragraph 6 decision into the 
TRIPS Agreement in an easy manner, without upsetting the structure of the Agreement or prejudicing 
its readability or comprehensibility.  
96. His delegation held the view that there had been a general agreement among Members on 30 
August 2003 that the Statement had a crucial role to play in reaching the agreement and finding the 
solution.  The Statement had been made by the General Council Chair with the collective 
understanding and the agreement of the membership and it was therefore also clearly distinct from 
other statements made on that day by individual de legations.  Both parts of the solution should be 
reflected in an amendment, although there was consen sus among the membership that the form of this 
amendment should not alter the legal status of the Decision and the Statement.  Accordingly, 
appropriate wording in the amendmen t would have to be chosen in or der to achieve this goal.  He 
joined other delegations in thanking Canada and Norway for their presentations of the state of play of IP/C/M/44 
Page 18  
 
the implementation of the Decision in their legisla tion.  He informed the Council that Switzerland was 
currently revising its patent legislation in order to  implement the Decision to provide for a compulsory 
licence for export purposes. 
97. The representative of Japan
 said that the extension of the timeframe should be as short as 
possible because, if the Council sets a longer period, it might be possible to re-open the discussion on 
substantive points.  He said that he could support the Chairman's suggestion of a 9-month extension 
through March 2005.  As to the content, his delegati on believed that a reference to both the Decision 
and the Statement was necessary in or der to reflect the agreement correctly.  As to the legal form, his 
delegation thought that the amendment of TRIPS sh ould be one which reflected what Members had 
already agreed and that using the footnote approa ch seemed to be a simple way of doing this. 
98. The representative of Korea  supported the Chairman's proposal to extend the time to the end 
of March 2005.  He reiterated his delegation 's view that the amendment of the TRIPS Agreement 
should be a technical exercise of transplanting the Decision into the TRIPS Agreement without 
opening the substance for renegotiation.  He believed that this exercise could and should be completed 
in a short period of time and was disappointed that the Council had not been able to meet the original 
target date of 30 June 2004.  He noted that the Decision had been the outcome of long and difficult negotiations and as such reflected a delicate balance of interests among Members.  Korea was not 
convinced that the attempts to renegotiate the subs tance, which would certainly be another difficult 
exercise, would serve the interests of either the Memb ers or of the Organization.  In this context, the 
proposal of the Chairman to extend the target date by a relatively short period of time, i.e. by nine 
months, was welcome and he hoped that Members could reach an agreement by that target date.  
Allowing the situation of uncertainty to conti nue could only damage the credibility of the 
Organization. 
99. With regard to the content of the amendment,  especially the status of the Chairman's 
Statement, Korea fully shared the views expressed by the delegation of the European Communities.   
He added that Korea opposed any amendment exercise that would change the voluntary nature of the commitment that the so-called "opt-o ut" countries had made in the process of agreeing to the decision 
in August 2003.  Finally, he said he was flexible as  to the form of the amendment as long as Korea's 
interests were satisfactor ily accommodated in the content of the amendment. 
100. The representative of Malaysia
 said that her delegation could agree with the Chairman's 
proposal that more time should be provided to th e TRIPS Council to prepare the amendment in light 
of the need for further reflection by Members on the form and the content of the amendment.  On the 
content of the amendment, she said it had been recognised that any amendment would have to be 
based on the Decision, where Members were of the view that it would be appropriate to do so.  With 
regard to the form of the amendment, she agreed with the representative of Argentina that footnotes 
were not the customary approach to making an amendment.  This could become an issue if the 
footnote was seen to be subordinate to the main legislation.  The Council should consider other approaches than those based on a footnote.  She shared the concerns of the delegation of Argentina regarding elevating the Chair's Statement through an amendment to the same legal status as the 
Decision. 
101. In the light of the European Communities' view that the Chair's Statement would continue to 
be applicable in relation to the new TRIPS provisio n, she said that the Council would need to study 
carefully whether the Chairman's Statement would con tinue to have any status after the amendment.  
Finally, she joined others in expressing inte rest in the Canadian and Norwegian legislation 
implementing the paragraph 6 Decision and looked  forward to their subsequent implementation.  
102. The representative of Thailand
 said that, with respect to th e issue of timing, there was no 
reason to rush into an amendment.   He would like to see that the decision was workable in practice 
and, when it came to the amendment, it was important  to make sure that it contained elements that  IP/C/M/44 
 Page 19 
 
 
could really be implemented.  Those elements that could create problems should be carefully 
considered and examined.  He could accept the Ch airman's proposal to extend the timeframe of the 
amendment to the end of March 2005.  
103. The representative of Norway  said that, during the previous meetings of the TRIPS Council, 
his delegation had reported progress in implementing the 30 August Decision.  He said that on 14 May 
2004, the Decision had been implemented into the Norwegian legislation through a set of regulations, 
which had entered into force on 1 June 2004.  He said that his delegation intended to explain the 
system in more detail in a WTO document to be circ ulated in the near future, and that copies of the 
regulations and a set of explanations on the reasons behind such regulations had been distributed and 
were available at his Mission upon request. 
104. The first legislative step in the internal pr ocess of Norway had been the amendment int 
December 2003 of a provision in the Patent Act th at was to provide the legal basis for the executive 
branch to implement the Decision.  At the same time, another provision of the Patent Act had been 
amended in order to allow not only courts but al so the competition authorities to grant compulsory 
licences not only under the new system, but also in general in relation to any type of compulsory licence in other areas of science.  A decision of th e competition authority could always be challenged 
before the courts.  A draft set of regulations had been circulated in January to the public for 
comments.  He added that the adopted set of regu lations aimed at reiterating the content of the 
Decision.  He explained that this was part of a Norwegian tradition where na tional provisions relating 
to the implementation of international public law obligations followed the international public law 
provisions.  He said that the set of regulations made  necessary derogations from the export restrictions 
of Article 31(f) of the TRIPS Agreement, a nd also interpreted the concept of "adequate 
remuneration".  The other provision of Article 31, as well as those of the Norwegian Patent Act, 
would continue to apply in relation to applicati ons for compulsory licences under the system.  For 
instance, he said, there was no ch ange in the general requirement un der TRIPS Article 31(b), meaning 
that unless there was a case of national emergency of public non-commercial use, prior efforts to 
negotiate an authorisation from the right holder on reasonable commercial terms and conditions should have been made. 
105. He said that a main principle underlying the new set of Norwegian regulations was that 
producers that applied for a compulsory licence should  have, as a point of departure, a legal right to 
obtain such a licence, provided that the cond itions of the 30 August Decision and the TRIPS 
Agreement were fulfilled.  For instance, Norwegian authorities should normally accept the quantity described in the notification unless there were specific indications that the need had been inaccurately described in the notification.  This allowed increas ed predictability.  Thus, if the importing State's 
request was based on public health considerations  and fell within the scope of the Decision and the 
TRIPS Agreement, and if the products were to be produced solely for exports to fulfil that State's 
current needs, a compulsory licen ce should normally be issued. 
106. There had been general support for the draft proposal in the consultation process.  Possibly 
the most important outcome of the consultation process was the decision to put non-WTO Members 
on equal footing with WTO Members under the sy stem.  Another modification resulting from the 
consultation process had been the decision to specif y in more detail the requirements of the Decision 
in paragraph 2(ii) that products mu st be clearly identified as being produced under the system.  The 
regulations specifically stated that the producti on and export should cease if the products "to an 
appreciable degree" were used for purposes not in accordance with the conditions for granting the licence. 
107. Norway did not have a large pharmaceutical indus try, at least not in the product areas that 
were most likely to benefit from the Decision.  Therefore, his delegation did not believe that the 
Norwegian industry would be an important contributor under the system in the near future.  He explained that Norway's initiative to implement the Decision should instead be seen as a sign of IP/C/M/44 
Page 20  
 
strong support in fulfilling the mandate given to the Council in the Doha Declaration on the TRIPS 
Agreement and Public Health.  He further stated th at the problems identified in the Doha Declaration 
were as serious as they had been three years befo re.  Thus, his delegation believed that Canada and 
Norway's decisions to implement the 30 August Decision should be seen as important elements, 
among other efforts, to address global health problems and hoped that other Members would soon 
follow. 
108. He said that his country's efforts also illustrate d that a waiver might be a sufficient basis for 
implementing the system in the nati onal legal order.  Norway had since the very start of this process 
leading up to the 30 August Decision, advocated that the Decision should take the form of an 
amendment.  He supported the Chairman's proposal as to how the Council should proceed on this issue, allowing more time in order reach an agreement on an amendment. 
109. In his view, the amendment of the TRIPS Agreement was primarily a technical exercise.  He 
was not committed to any particular form of an am endment, and was open to a footnote, which should 
not pose any legal problems.  In his view, the Stat ement should be seen merely as an interpretative 
instrument and as a unilateral declaration th at did not belong in the TRIPS Agreement. 
110. The representative of Canada
 said that her delegation supported the Chairman's proposal on 
the issue of timing.  She also informed the Council that, on 14 May 2004, Canada had passed 
legislation amending its Patent Act and Food and Drug Act to facilitate the export of low-cost 
pharmaceutical products to countries in need.  This  legislation would come into force in the fall of 
2004 when the supporting regulations would have been promulgated.  These regulations would be 
pre-published and open for public commentary at that time.  She added that her delegation had 
prepared a short document that summarised Canada 's legislation for those who would be interested. 
111. The representative of India  said that he was quite flexible on the extension of the timeframe 
for concluding the amendment process.  Regarding th e content of the amendment, he said that it was 
India's view that it should be based "as appropriate" on the 30 August Decision, and that the 
Chairman's Statement read out at the time of adoptio n of the Decision could not be incorporated in the 
amendment as it would upset the fine balance of ri ghts and obligations contained in that Decision. 
112. The representative of Hong Kong, China  said that his delegation could support the Chairman's 
suggestion to extend the timeline to  March 2005.  While paragraph 11 of the Decision allowed some 
flexibility on the question of timing, he believed that it was important for the TRIPS Council to issue 
a decision on timing, as the end of June was approaching and the outside world was watching the 
work on this important is sue with keen interest. 
113. As to the substance of the amendment, he said that his delegation had all along advocated that 
this should be a purely technical exercise and Members were not there to renegotiate any elements in 
the package that had been agreed to in August.   Different views had been heard on the status of the 
Statement, which reflected the delicate balance that had been achieved in Au gust when the agreement 
on the Decision had been reached.  This reinforced  his belief that the amendment exercise should not 
attempt to change that balance and the status of either the Decision or the Statement. 
114. The representative of Pakistan  said that the process leading up to the 30 August Decision had 
been undoubtedly a gruelling one, and he was sure that  other delegates that had been part in some way 
or the other in that process would never forget the gi ve and take that had had to be done at that point 
in time to come to the Decision.  He said that Members could not lose sight of the statements made 
from different Members which played part in bringing all the sides together in agreeing to this waiver 
decision.   IP/C/M/44 
 Page 21 
 
 
115. He said that, with regard to the question of why the waiver had not been used in the last nine 
months of its operation, given the grave nature of the problem that it had been intended to address, the 
answer lay in the apprehensions of the proponents even  at the time of agreeing to the waiver regarding 
the uncertainties arising out of the temporary nature of the measure itself.  It could also be the nature 
of the obligations contained in the waiver which could have rendered the waiver up to this point a 
counter-productive instrument. 
116. Finally, he said that his delegation had no pr oblems in agreeing with the Chairman on the 
extended deadline of March 2005, given the fact that  the actual waiver decision had also been delayed 
by the same time.  He said that his delegation wa s very interested in the statement of the Argentine 
delegation.  With regard to the content of an am endment, he believed that it should be governed by 
the relevant paragraph of the Decision which used the wording "where appropriate". 
117. The representative of th e European Communities , referring to the comments made by Kenya, 
sought further clarification since he had not unders tood why it was not easy to make a notification. 
Was this because, due to some internal processes in Kenya, it was not easy to identify the type of 
illnesses that needed to be tackled, the products th at were needed, or poten tial generic producers of 
the product?  If would be useful for Members to understand any difficulties that might have arisen so that they could be avoided by other Me mbers wishing to make a notification. 
118. By its nature, a waiver was intended to be temporary.  It appeared that there was a 
misunderstanding as to whether this referred to the substance of the Decision or to its form.  His 
understanding was that, while the temporary wa iver should be made permanent through an 
amendment to the TRIPS Agreement, the content of the waiver was not of a temporary nature.  What 
mattered was not whether the amendment would be made by a footnote or not, but what the 
amendment would actually say.  If the content of th e amendment was clear to all delegations, some of 
them might be less concerned about whether it should be in a footnote or whether it should be in the 
body of the Agreement or in an annex to the Agreement.  Noting that some delegations continued to 
refer to the "where appropriate" formula still nine months after the Decision had been adopted without 
indicating what might be appropriate or not, he sa id that it was time for delegations to clarify their 
positions.  He disagreed with the view that Members could not act on the basis of the waiver, since it 
clearly allowed Members to act differently, provided that the conditions were met.  The waiver gave 
the needed legal security to act upon, as had been done by Canada and Norway, and as was being 
done by Switzerland and the European Communities. 
119. The representative of Brazil
 said that his delegation was in a position to join the consensus to 
extend the timeframe for concluding the work on an amendment to the TRIPS Agreement along the 
lines of the proposal made by the Chairman.  He ac knowledged the usefulness of the analysis of the 
delegation of Argentina on the legal significance of footnotes.  In his view, it seemed inappropriate to 
use a footnote to amend the TRIPS Agreement and to include the Statement in the amendment. 
120. The representative of China  agreed with the Chairman's proposal to extend the deadline to 
March 2005.  He was flexible as to the legal form  of the amendment and was not against the footnote 
approach.  This was without prejudice to any other approach that might be tabled.  He was concerned 
about the ambiguity of the legal status of the Stat ement, and believed that some clarification of the 
legal status could be provided by the WTO Secretariat in written form.  
121. The representative of the United States  said that his delegation was fully committed to work 
with other Members in order to memorialise what had been agreed on 30 August 2003, including the 
Decision and the Statement, in an amendment of the TRIPS Agreement with a view to its immediate 
adoption.  His delegation continued to believe that the Council should not re-open substantive issues 
and shared the view that this was merely a technical exercise.  As to the Chairman's proposal 
concerning the timing of the amendment, he said his delegation could support a short and specific IP/C/M/44 
Page 22  
 
timeframe for completing the work that maintained  the flexibility contained in paragraph 11, and 
could, therefore, support the Chairman's proposal to extend the deadline to March 2005. 
122. With regard to issues of form and content, he  said that as a preliminary matter his delegation 
would not comment directly on a legal note produced by the Secretariat but that, regardless of the 
views of the United States on substance, his delegation shared the systemic concerns raised by the 
Philippine delegation.  He said that, as a general matter, his delegation did not normally consider it 
appropriate or particularly helpful for the Secretar iat to be developing extensive legal analysis and 
drawing conclusions.  It was up to Members to interpret their WTO obligations. 
123. His delegation strongly disagreed with the view  that the Statement was merely a unilateral 
statement.  He clarified that by its own terms the Statement contained key shared understandings of 
Members and such shared understandings were inde ed an essential part of the Agreement of 30 
August 2003.  He said that there would have been no agreement in August 2003 without these shared 
understandings contained in the Statement.  It se emed to his delegation that there might be a 
misunderstanding that the United States was trying to  upgrade the status of the Chairman's Statement 
in some manner.  However, as had been said before , what the United States sought was to preserve all 
aspects of the action taken on 30 August 2003, including the legal relationship between the Decision and the Statement.  He said that his delegation  remained open to the views of others on how the 
amendment process could be exped itiously accomplished.  However, he believed, like the delegations 
of Japan and Switzerland, that this amendment mu st preserve the agreement reached in August and 
would therefore need to include an express reference to both the Decision and the Chairman's 
Statement. 
124. The representative of Kenya
 said that before the adoption of the Decision his delegation had 
clearly been told that the Statement was meant to allay the fears of the pharmaceutical industry, and 
that he believed that this fear wa s behind them as was the statement. 
125. The Chairman  said that he wished to make it clear that the suggestion he had made did not 
exclude the TRIPS Council agreeing earlier than March 2005 and obviously he hoped that this would be the case.  He also wished to make it clear th at, in order to meet the new time-frame, the Council 
would need to work expeditiously and purposefully, st arting with its September meeting.  He said that 
he was sure that there was a readiness on  the part of delegations to do this.  
126. With regard to the way forward, he noted th at there were many positive and supportive 
reactions to the proposal he had made, but that he ha d also noted that some groups still had to consult 
amongst themselves on this suggestion and, therefor e, were not in a position to endorse it at the 
present meeting.  He said that, as he had mentioned in the consultations he had held, he believed that 
it would be useful to keep the General Council informed of any new arrangements in the TRIPS 
Council for finalising work on the amendment.  He  noted that the General Council would not meet 
until the end of July.  This would give time for these groups to coordinate.  He asked these groups to 
let him know the outcome by the end of June.  If they could join the other delegations in supporting the proposal that he had made, the TRIPS Council would be deemed to have agreed on it and he 
would inform the General Council accordingly. 
127. The representative of the Philippines
 wondered whether the proposal which the Chair had 
read out earlier would be deemed to have been approved if the Members which were still in the 
process of consulting amo ngst themselves would communicate their consent to the Chairman, without 
the need for the TRIPS Council to meet again to approve this proposal.  He added that it might be 
useful if the proposed language could be circulat ed to all Members.  Also the representative of 
Argentina  requested a clarification as to whether the Council would be deemed to have agreed on the 
proposal if there were no objections.  IP/C/M/44 
 Page 23 
 
 
128. The Chairman  confirmed that, if the groups which were still in the process of consulting 
amongst themselves could join other delegations in supporting the proposal, the Council would be 
deemed to have agreed on it.  He added that, as requested by the delegation of the Philippines, he 
would circulate the proposal in writing to all Members. 
129. The Council agreed  to proceed as suggested by the Chair.1 
I. REVIEW UNDER PARAGRAPH 2 OF THE DECISION ON THE IMPLEMENTATION OF ARTICLE  66.2  
OF THE TRIPS AGREEMENT  
130. The Chairman  recalled that, at its meeting in November 2003, the Council had taken up its 
first annual review of developed country Members' reports on their implementation of Article 66.2 of 
the TRIPS Agreement.  This had been done pur suant to paragraph 2 of the Decision on the 
"Implementation of Article 66.2 of the TRIPS Agr eement".  At the Council's meeting in March 2004, 
his predecessor had offered an opportunity for Memb ers to make further comments on the information 
submitted for the November meeting.  Since then, th e delegation of Zambia had requested that the 
matter be kept on the agenda of the present meeting so as to have an opportunity to comment on these 
reports.  He said that the delegatio n of Zambia had just informed him that it was not in a position to 
provide comments at the present meeting but that the LDC group would like to provide its comments 
at the Council's meeting in September 2004.  He  added that, since the Council's meeting in 
March 2004, a further report had been r eceived from Canada (IP/C/W/412/Add.7). 
131. The representative of Tanzania  confirmed that the LDC group intended to present its written 
comments at the Council's next meeting in September 2004. 
132. Turning to the arrangements for the Council's second review under the Decision, the 
Chairman  recalled that its paragraph 1 provided th at developed country Members shall submit 
annually reports on actions taken or planned in pursuance of their commitments under Article 66.2.  To this end, they must provide new detailed report s every third year and, in the intervening years, 
provide updates to their most recent reports.  These reports must be submitted prior to the last Council 
meeting scheduled for the year in question.  Paragraph 3 of the Decision determined the information 
that must be provided in these reports.  The firs t set of detailed annual reports under the Decision had 
been presented to the Council's meeting in November 2003.  Therefore, in 2004, developed country 
Members should submit updates to these reports prior to the Council's end-of-year meeting that had 
been scheduled for 30 November through 2 December .  As provided in paragraph 2 of the Decision, 
the Council should review these updates at that meet ing.  Accordingly, he suggested that developed 
country Members be requested to submit updates to th e reports they had provided last year on actions 
they had taken or planned in pursuance of thei r commitments under Article 66.2 by 9 November, 
i.e. three weeks before the meeting, in order to allow their timely circulation and review at the 
Council's meeting in November. 
133. The Council so agreed
 and took note  of the statements made. 
                                                      
1 The language proposed by the Chair on the question of the timing of the further work on the 
amendment was circulated to Members by fax, dated 17 June 2004.  Subsequently, the Chair informed 
Members, in a fax dated 2 July 2004, that the groups that had had to consult amongst themselves on this suggestion had informed him that they could join other delegations in supporting his proposal.  He indicated that 
he would thus inform the General Council, at its meeting scheduled for 27-28 July, of the arrangements for the 
further work of the TRIPS Council on this matter. IP/C/M/44 
Page 24  
 
J. 
TECHNICAL COOPERATION AND CAPACITY -BUILDING  
(i) Annual updates on technical cooperation activities  
134. The Chairman  recalled that, in 2003, the Council had taken up its annual review of technical 
cooperation at its meeting in November.  In pr eparation for this, developed country Members, 
intergovernmental organizations with observer st atus in the Council and the WTO Secretariat had 
updated information on their technical cooperation activities relevant to the implementation of the 
TRIPS Agreement.  Since the Council's meeting in March 2004, a further report had been received 
from the World Health Organization, which fo cused on the WHO's technical and financial 
cooperation programmes relevant to TRIPS implem entation and access to drugs (IP/C/W/407/Add.4). 
135. Turning to the arrangements for this year's annu al review of technical  cooperation, he said 
that the Council had traditionally undertaken this re view at its September meeting, but last year it had 
been done at the Council's November meeting, si nce no meeting had been scheduled for September 
due to the Cancún Ministerial Conf erence.  He suggested that the Council once more invite developed 
country Members to supply information on thei r activities pursuant to Article 67 of the TRIPS 
Agreement.  Other Members who also made availabl e technical cooperation were encouraged to share 
information on these activities if they so wished.  He  also suggested that the Council once more invite 
those intergovernmental organizations that had ob server status in the TRIPS Council to provide 
information on their activities of relevance and that the WTO Secretariat might also be instructed to 
report on its activities.  
136. He then sought the Council's view on whether it should hold this year's review in September, 
as had been done in the past, or whether Members would prefer to hold the review one year after the 
last review, i.e. at the Council's November meeting.  If Members would agree to hold the review again 
in September 2004, he suggested that the Council re quest that the information be made available by 
the end of August, in order to allow its timely circulation before the meeting.  
137. The Council agreed  to hold the review at its meeting scheduled from 21 to 23 September 
2004 and proceed as suggested by the Chair. 
 (ii) Joint Initiative 
138. The Chairman  recalled that the WIPO and WTO Secretariats had launched, on 14 June 2001, 
a Joint Initiative on Technical Cooperation for L east-Developed Countries.  Since then, the WTO 
Secretariat had kept the Council informed ab out the implementation of the Joint Initiative. 
139. The representative of the Secretariat  informed the Council about two forthcoming national 
seminars that it was organizing jointly with WIPO, one in Myanmar in June and the other in Chad in August 2004.  He said that the Secretariat was working on mutually agreeable arrangements with 
WIPO and host countries for national seminars in Ethiopi a, Niger and Uganda to be held later in 2004.  
In addition to these joint activities with WIPO, he sa id that the Secretariat would be holding, at the 
request of these LDC Members, national seminars in Benin in July, Bangladesh in August, and Nepal 
in September 2004. 
140. As regards other technical cooperation activities, the Secretariat was in the process of holding 
regional workshops on certain topical issues, including the TRIPS Agreement and public health, 
particularly the Decision on the Implementation of Paragraph 6 of the Doha Declaration on the TRIPS 
Agreement and Public Health, biotechnology, bi odiversity, traditional kn owledge and folklore, 
geographical indications, and enforcement.  Th e Secretariat had already organized two such 
workshops, one in Kuala Lumpur, Malaysia in Ap ril for Asian and the Pacific economies, and the 
other in Johannesburg, South Africa in June 2004  for English-speaking African countries.  These 
workshops had benefited from contributions by speakers from WIPO and the WHO, as well as by  IP/C/M/44 
 Page 25 
 
 
delegates from developed and developing country Members who represented their countries in the 
TRIPS Council and, therefore, had full first-hand experience of these matters.  He thanked the 
Malaysian and the South African authorities for their cooperation in the organization of these eventsas 
well as the Secretariats of WIPO and the WHO, as well as the delegations in question for making 
available speakers for these events.  He informed the Council that the next such regional workshop 
would be held in Yaoundé, Cameroon in July for Fr ench-speaking African countries.  The Secretariat 
was planning to organize jointly with WIPO anot her regional workshop in Moldova in October, and 
other activities in Latin America and the Caribbean in the final month of the year.  The Secretariat 
would make a full report on its technical cooperat ion activities for the Council's September meeting. 
141. The representative of WIPO  joined the representative of the WTO in thanking the authorities 
of the countries that had hosted WIPO's and the WTO's joint activities. 
142. The Council took note  of the statements. 
K. INFORMATION ON RELEVANT DEVELOPMENTS ELSEWHERE IN THE WTO  
Accessions  
143. The Chairman  informed the Council that the Kingdom of Nepal had become the 147th 
Member of the WTO on 23 April 2004.  Nepal was the first least-developed country that had joined 
the WTO pursuant to Article XII of the WTO Agreem ent, i.e.,  through the full WTO working party 
process. 
L. OBSERVER STATUS FOR INTERNATIONAL INTERGOVERNMENTAL ORGANIZATIONS  
144. The Chairman  said that the list of the 16 pending requests for observer status in the TRIPS 
Council by other intergovernmental organizations was contained in document IP/C/W/52/Rev.10.  He recalled that the Council had discus sed these pending requests at its previous meetings, but had not 
been able to reach consensus on any of them. 
145. The representative of Brazil
 said that an important item on the Council's agenda was the 
relationship between the TRIPS Agreement and the CBD.  During the earlier discussions, the Chair 
had noted that there was general willingness in the Council to have a more focused and structured 
discussion on the three related agenda items, i.e., th e review of the provisions of Article 27.3(b), the 
relationship between the TRIPS Ag reement and the CBD, and protectio n of traditional knowledge and 
folklore.  He noted that the Conference of the Par ties of the CBD, held in February 2004, had adopted 
a decision on access and benefit-sharing as related to genetic resources.  He believed that it would be 
beneficial to the Council's discussion on the re lationship between the TRIPS Agreement and the CBD 
to grant the Secretariat of the CBD observer status.  Therefore, he reiterated his delegation's proposal 
that the Council consider granting the CBD observer status at the Council's forthcoming meeting. 
146. The representative of the United States  said that he could not agree to grant the Secretariat of 
the CBD observer status for two reasons.  First, th e issue of observer status must be dealt with under 
appropriate guidelines to be es tablished by the General Council.  Unfortunately, it had not yet 
established such guidelines.  Second, Members should also consider the breadth of interest that an intergovernmental organization had in the issues deal t with by the TRIPS Council.  The Secretariat of 
the CBD had a limited interest in the TRIPS Ag reement, which was not sufficient for granting 
observer status. 
147. The Chairman
 suggested that the Council agree to revert to the matter at its next meeting. 
148. The Council so agreed  and took note  of the statements made. IP/C/M/44 
Page 26  
 
M. 
OTHER BUSINESS  
149. The Chairman  informed the Council that his author ities in Hong Kong, China had announced 
that he would return to Hong Kong, China after the summer to take up a new appointment.  He said 
that he had informed the Chair of the General Co uncil of this development and that it was his 
understanding that the Chair intended to conduct consultations shortly on the chairmanship of the 
TRIPS Council.  He thanked the Secretariat an d all the delegations for their support and full 
cooperation during his chairmanship. 
__________