. /.RESTRICTEDWORLD TRADE
ORGANIZATIONIP/C/M/41
7 November 2003
(03-5952)
Council for Trade-Related Aspects
of Intellectual Property Rights
MINUTES OF MEETING
Held in the Centre William Rappard
on 28 August 2003
Chairman:  Ambassador Vanu Gopala Menon (Singapore)
The present document contains the record of the discussion which took place during the
TRIPS Council meeting held on 28 August 2003.
PARAGRAPH 6 OF THE DOHA DECLARATION ON THE TRIPS AGREEMENT AND PUBLIC HEALTH
1. The Chairman recalled that, at the Council's previous meeting in June, he had concluded the
discussion on this item by indicating that he would remain in close contact with delegations with a
view to resuming consultations as soon as there were  indications that it would lead to positive results.
He had asked delegations to be ready to be called back, at short notice, for a special meeting of the
Council in the event that progress could be achieve d.  He informed the Council that, in the light of
consultations that he had held, he was now in a position to seek the Council's approval for
recommendations that the Council could make to the General Council so as to resolve the matter.
2. The Chairman proposed that the Council approve the draft Decision on "Implementation of
Paragraph 6 of the Doha Declaration on the TRIPS Agreement and Public Health" contained indocument JOB/(02)/217 and agree to forward it to the General Council for adoption.  Furthermore, he
proposed that the Council approve forwarding, along with the draft Decision, the text of the statement
contained in document JOB(03)/177 to be made by the Chairman of the General Council prior to the
adoption of the Decision.
3. The Council so agreed.
4. The representative of the Philippines said that he had instructions to read a statement before
the approval of the texts.  In view of this, he wished  to indicate that he had tried to make his statement
before the Council had taken action on the matter.  He stated that, while the Chairman's statement
"represent[ed] several key shared understandings of Members", it did not represent all the
understandings shared by the membership.  The Decision did not reflect the shared understanding ofMembers that the undertaking assumed by eligible importing countries in the Decision to take
reasonable measures within their means to prevent trade diversion of products imported under the
system was strictly on a "best endeavour basis".  This understanding had never been refuted by the
membership in the various plenary sessions as well as in the numerous small-group negotiations that
had been held on this issue.  It was solely with this understanding that his delegation was agreeing tothe Chairman's statement and the attached Decision.  Without this shared understanding, his
delegation would maintain its reservation against the adoption of the statement and the Decision.IP/C/M/41
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5. With respect to the usage of the system, the understanding that the system should not be used
as an "instrument to pursue industrial or commercial policy objectives" was understood by his
delegation as not precluding the use of the system for purposes of protecting public health, even if
industrial or commercial policy objectives were involved.  A national health programme designed to
provide affordable medicines for all, particularly the marginalized sectors of the population, and thushaving the objective of lowering or at least offeri ng lower prices for a broad range of medicines, did
not make such a health programme and the use of the system an instrument to pursue industrial or
commercial policy objectives.  Hence, his delegation interpreted the understanding such that the
system would not be used primarily as an instru ment to pursue industrial or commercial policy
objectives.
6. Indeed, the issuance of a compulsory licence for purposes of addressing a public health
problem had a public interest component that was not necessarily exclusive of industrial orcommercial policy objectives.  The issuance of a compulsory licence had a socio-economic element in
that it sought to offset the pernicious effects of monopoly rights granted to a patent holder.  But as a
compulsory licence was intended to curtail monopolistic or anti-competitive behaviour on the part of
a patent holder, by definition, the system for compulsory licensing could be said to have an inherent
industrial policy objective.
7. With respect to the element of safeguards ag ainst trade diversion being additionally required
of exporting countries under the system, he said that the obligation to establish such safeguards
through special packaging and/or colouring or shaping may be on the exporting countries' side. But, if
it would increase the manufacturers' costs, it would not become operative under the terms of the
Decision and in any case would not be pass ed on to the importing Member in need.
8. The obligation referred to in the statement to provide information on how a Member had
made the self-determination establishing that it had insufficient or no manufacturing capacities in the
pharmaceutical sector appeared to impose a new, additional burden that was not in the
16 December 2002 draft Decision.  Nonetheless, the only reason his delegation shared this
understanding was on the basis that neither the TRIPS Council nor any Member could reject aMember's notifications indicating its intent to use the system and providing information on its
determination of manufacturing capacity.  The sole prerogative for establishing insufficient
manufacturing capacity was with the notifying Member.  The conclusion that there was insufficient
capacity was strictly up to the Member concerned.  A Member could, therefore, provide as much or as
little information as it deemed relevant for purposes  of the understanding referred to in the statement,
without needing to provide more information even if requested by another Member.
9. The Chairman asked whether he could take it that the Council was ready to transmit, as a
TRIPS Council working document, the text of the Decision in document JOB(02)/2171 to the General
Council for action.
10. The Council so agreed.
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1 Subsequently circulated in document IP/C/W/405.