WORLD TRADE  
ORGANIZATION  RESTRICTED 
IP/C/M/43 
7 May 2004 
 
 (04-2044) 
Council for Trade-Related Aspects 
of Intellectual Property Rights  
 
 
  
MINUTES OF MEETING 
 
Held in the Centre William Rappard 
on 8 March 2004 
 
Chairman:  Ambassador Vanu Gopala Menon (Singapore) 
 
 
 The present document contains the record of the discussion which took place during the 
TRIPS Council meeting held on 8 March 2004.  Subjects discussed            Page Nos. 
 
A. NOTIFICATIONS UNDER PROVISIONS OF THE AGREEMENT  ....................................................... 2  
B. REVIEW OF NATIONAL IMPLEMENTING LEGISLATION  ................................................................ 2  
C. REVIEW OF THE PROVISIONS OF ARTICLE 27.3(B) .................................................................... 5  
D. RELATIONSHIP BETWEEN THE TRIPS AGREEMENT AND THE CONVENTION ON 
BIOLOGICAL DIVERSITY  ............................................................................................................. 5  
E. PROTECTION OF TRADITIONAL KNOWLEDGE AND FOLKLORE  .................................................. 5  
F. REVIEW OF IMPLEMENTATION OF THE TRIPS AGREEMENT UNDER ARTICLE 71.1 ................. 14  
G. REVIEW OF THE APPLICATION OF THE PROVISIONS OF THE SECTION ON 
GEOGRAPHICAL INDICATIONS UNDER ARTICLE 24.2 ............................................................... 14  
H. DECISION ON THE IMPLEMENTATION OF PARAGRAPH 6 OF THE DOHA DECLARATION 
ON THE TRIPS  AGREEMENT AND PUBLIC HEALTH  ................................................................. 16  
I. REVIEW UNDER PARAGRAPH 2 OF THE DECISION ON THE IMPLEMENTATION OF 
ARTICLE  66.2  OF THE TRIPS  AGREEMENT  .............................................................................. 18  
J. TECHNICAL COOPERATION AND CAPACITY -BUILDING  ............................................................ 18  
K. INFORMATION ON RELEVANT DEVELOPMENTS ELSEWHERE IN THE WTO ............................. 18  
L. OBSERVER STATUS FOR INTERNATIONAL INTERGOVERNMENTAL ORGANIZATIONS  .............. 18  
M. OTHER BUSINESS  ...................................................................................................................... 19  
N. ELECTION OF CHAIRPERSON  ..................................................................................................... 19  
 
 IP/C/M/43 
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A. N
OTIFICATIONS UNDER PROVISIONS OF THE AGREEMENT  
(i) Notifications under Article 63.2 
- Notifications from Members whose transitional periods under 
Article 65.2 or 65.3 expired on 1 January 2000 or who have acceded to 
the WTO after that date 
1. The Chairman drew attention to the Secretaria t's updated note reflecting the status of the 
notifications received from Members so far (JOB(04)/5).  The note showed from which of the 
Members in question notifications ha d been received and/or circulated  by 2 March 2004.  From the 81 
Members in question, there were still four who ha d not yet submitted any notification concerning their 
implementing legislation, namely Papua New Guinea;  Saint Kitts and Nevis;  Saint Vincent and the 
Grenadines;  and Swaziland.  Notifications from a number of other Members were incomplete.  
Recalling that pursuant to Article 63.2 of the Agreem ent the notifications of the laws and regulations 
in question were generally due as of 1 January 2000, he urge d all Members with unfulfilled 
notification obligations to submit the outstanding material without delay. 
 - Notifications of amendmen ts of laws notified earlier 
2. The Chairman informed the Council that, since its November meeting, the following updates 
to earlier notifications of laws and regulations had been received:   Germany had notified a Law to 
Revise the Rules on Cost in the Field of Intellectual Property;  the United States had notified the most 
current versions of its three main intellectual property laws, namely its patent, copyright and 
trademark laws;  Moldova had notified a law amendi ng and completing various intellectual property 
laws;  and Spain had notified its I ndustrial Designs Law.  These notifications were being circulated in 
the IP/N/1/- series of documents. 
3. The Chairman drew attention to Thailand's r esponses (IP/C/W/417) to the questions posed by 
Japan relating to the notification of certain Thai  laws and regulations circulated on 21 and 
28 March 2003. 
4. The representative of Japan thanked Thailand for its responses.  Given that his delegation had 
not had enough time to analyse the responses, he rese rved the right to submit additional and follow-up 
questions. 
5. The Council took note of the statements made. 
(ii) Notifications under Article 69 
6. The Chairman said that, since the Council's meeting in November 2003, updated notifications 
of contact points under Article 69 of the Agreemen t had been received from Israel and Thailand.  
These notifications had been circulated in an adde ndum to document IP/N/3/Rev.7.  There were now 
118 Members who had notified contact points under Article 69. 
B. REVIEW OF NATIONAL IMPLEMENTING LEGISLATION  
(i) Follow-up to reviews already undertaken 
7. The Chairman said that the Secretariat had updated its informal note that listed all the 
outstanding material required to complete the reviews that the Council had already undertaken 
(JOB(04)/6).  The table attached to the note liste d 15 Members whose reviews had been initiated at  IP/C/M/43 
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 the Council's meetings since April 2001 but which rema ined on the Council's agenda.  In addition, the 
note also listed a number of Members whose revi ews had already been deleted from the Council's 
agenda, but to whom further questions had been posed. 
8. Since the Council's last meeting, Moldova had provided responses to all of the outstanding 
questions posed to it in the context of its review, and all of these responses had been circulated to 
Members prior to the present meeting.  He proposed that the regular review of the legislation of 
Moldova be deleted from the agenda , it being understood that any delegation should feel free to revert 
to any matter stemming from this review at any time. 
9. The Council so agreed. 
10. The Chairman turned to the remaining 14 Me mbers whose reviews had been initiated since 
April 2001 but which remained on the Council's ag enda, namely Congo;  Cuba;  Egypt;  Fiji;  
Grenada;  Mauritius;  Nigeria;  Pakistan;  Qatar;   Saint Kitts and Nevis;  Saint Vincent and the 
Grenadines;  Suriname;  Swaziland;  and Zimbabwe .  Since the Council's last meeting, Nigeria had 
provided responses to most of the outstanding questio ns, but there were still a few questions to which 
responses had not yet been received. 
11. The representative of Cuba said that she was hopi ng that two of the pending laws before the 
Council of the State would be adopted in the third quarter of 2004, after which they would be notified 
along with the responses to the outstandi ng questions posed to her delegation. 
12. The representative of Egypt said that his dele gation would shortly respond to the outstanding 
questions and notify an Executive Order, which was being finalized. 
13. The representative of Nigeria said that his delegation would provide responses to the 
outstanding questions in the near future. 
14. The representative of Pakistan said that he hoped that a response to the one outstanding 
question would be received from the capital shortly. 
15. The representative of Zimbabwe said that unfortu nately his delegation was not in a position to 
indicate when exactly it would be able to provid e responses to the outstanding questions since the 
delay was due to circumstances totally beyond its control.  His delegation might need to have 
discussions with the Members who had posed the more than 200 questions which still remained 
unanswered and Zimbabwe might in fact need technical assistance to answer them. 
16. The representative of the European Commun ities thanked all those Members which had 
replied to the questions put to them and urged those which had not yet done so to do their best to 
provide responses as soon as possible.  If some Members were having problems replying to the 
questions, his delegation would be very happy to  discuss this bilaterally and provide technical 
assistance, if requested. 
17. He noted that a number of Members had adopted new legislation since their reviews had been 
deleted from the Council's agenda.  His delegati on might have questions relating to some new 
legislation.  He wondered whether in such cases th e review could be formally reopened or whether 
new questions could be sent and dealt with on a more informal basis. 
18. The representative of the Secretariat said that he believed that the practice that had evolved, 
insofar as there was a practice on this type of issu e, was that if there was a matter which stemmed 
from what had already been taken up under the review , then there would be a possibility to come back 
to that matter.  Reviews were removed from th e Council's agenda on the understanding that there IP/C/M/43 
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 would be a possibility to revert to any further ma tter stemming from those reviews.  Normally, a new 
piece of legislation which had not been the subject  of the review would be considered under the 
Council's first agenda item relating to notifications of legislation.  Any points which might arise from 
that notification could be taken up under that heading. 
19. The representative of the European Communiti es asked whether it would be possible for 
Members to pose questions concerning legislation wh ich had not yet been notified by the Member in 
question, but which had already been effectively im plemented by that Member in the context of its 
TRIPS implementation. 
20. The representative of the Secretariat said that he  believed that the formal situation was that 
there was a commitment in the TRIPS Agreement to notify legisl ation and that the Council was a 
forum in which Members could interact with each other about any issue relating to the operation of 
the Agreement.  If there were an issue related to legislation which either had been notified or should 
have been notified, the first agenda item would pr ovide an opportunity for su ch issues to be discussed. 
21. The Chairman said that the Secretariat note also listed seven Members whose reviews had 
already been deleted from the Council's agenda on the understanding that any delegation should feel 
free to revert to any matter stemming from the revi ew at any time.  In this connection, certain 
questions had been raised with regard to the im plementing legislation of these countries.  Since the 
Council's last meeting, Japan had posed follow-up qu estions to China in relation to responses it had 
provided in the context of its regular review in itiated in September 2002, and a follow-up question to 
Malaysia. 
22. The representative of Argentina said that r esponses to the pending questions would be 
communicated as soon as her delegation received them from her capital. 
23. The representative of China said that his delegation had taken note of the follow-up questions 
posed by Japan in December 2003 and that, as soon as the authoriti es in his capital had finished 
checking the English version of the responses, his delegation would contact the delegation of Japan. 
24. The representative of Malaysia said that her delegation had taken not e of the follow-up 
question posed by Japan and would provide a response as soon as possible. 
25. The Chairman said that, since the Council's last  meeting, very little progress had been made 
with regard to the remaining outstanding material  and the completion of the follow-up to the last 
pending reviews.  He urged the de legations concerned to provide th e outstanding material as quickly 
as possible, so as to allow the Council to complete the follow-up to these reviews.  He proposed that 
the Council request the Secretariat to update its note on pending reviews before the Council's next 
meeting. 
26. The Council took note of the statements made and agreed to proceed as suggested by the 
Chairman and revert to the matter at its next meeting. 
(ii) Reviews of legislation of Armenia and the former Yugoslav Republic of Macedonia 
27. The Chairman recalled that, at its meeting in J une 2003, the Council had agreed to review the 
legislation of two newly acceded Members,  name ly Armenia and the Former Yugoslav Republic of 
Macedonia, at the present meeting.    IP/C/M/43 
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 - Review of legislation of Armenia  
28. The Chairman said that the Government of Armenia had requested that the review of the 
legislation of Armenia be postponed until the next meeting of the Council, scheduled for 
15-17 June 2004, given that it was not in a position to send a delegation to the present meeting.  The 
Government had also confirmed th at it had received the questions posed to it by Switzerland and that 
its experts were already working on responses to  these questions, as well as on responses to the 
Checklist of Issues on Enforcement, which it intended to submit as soon as possible.  In light of this 
request, the Chairman proposed that the Council post pone the review of the legislation of Armenia to 
its June meeting. 
29. The Council so agreed.  
- Review of legislation of the Former Yugoslav Republic of Macedonia  
30. The Chairman said that the notification by  the Former Yugoslav Republic of Macedonia 
(FYROM) of its laws and regulations had been ci rculated in document IP/N/1/MKD/1, and the texts 
of the notified laws in the relevant law serie s of documents.  It had received questions from 
Switzerland, which had been circulated in document IP/C/W/419.  Its responses to these questions had 
been circulated in document IP/C/W/421. 
31. In accordance with the standard procedures, the delegation of the Former Yugoslav Republic 
of Macedonia provided a brief introductory overview of  the structure of its legislation in the areas 
covered by the TRIPS Agreement and of the changes that it had had to bring about in order to make 
the legislation compatible with the Agreement.  The record of the introductory statement as well as 
the questions put to it and the responses given (i ncluding responses to any follow-up questions posed 
after the meeting) would be circulated in a doc ument with the following symbols:  IP/Q/MKD/1, 
IP/Q2/MKD/1, IP/Q3/MKD/1 and IP/Q4/MKD/1. 
32. The representative of Switzerland commended FYRO M for its efforts to bring its legislation 
into conformity with the TRIPS Agreement as well as with other important international agreements.  
Updated intellectual property legislation formed  an important element of a national regulatory 
framework, which was part of an economic envir onment conducive to attract new investment and 
economic growth.  This applied in particular to ne w technology, and was equally  relevant to small and 
large WTO Members.  Thanking the FYROM for thei r introductory statement and their responses to 
the questions posed by Switzerland, he said that his delegation would examine the responses in depth 
and, if necessary, pose further questions. 
33. The Chairman suggested that, in light of possi ble further questions that Switzerland and other 
Members might wish to put to FYROM, the Council ta ke note of the statements made and revert to 
the matter at its next meeting. 
34. The Council so agreed. 
C. REVIEW OF THE PROVISIONS OF ARTICLE 27.3(B) 
D. RELATIONSHIP BETWEEN THE TRIPS AGREEMENT AND THE CONVENTION ON BIOLOGICAL 
DIVERSITY  
E. PROTECTION OF TRADITIONAL KNOWLEDGE AND FOLKLORE  
35. The Chairman suggested that, since the practice in the Council's past meetings had been that 
delegates address these three agenda items together, the Council again take them  up at the same time.  IP/C/M/43 
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 He informed the Council that, since its meeting in November 2003, the Council had received 
information from Moldova on how the matters addressed  in Article 27.3(b) were presently treated in 
its national law (IP/C/W/125/Add.24).  This informat ion had been provided using the illustrative list 
of questions contained in document IP/C/W/273.  The Council had also received a submission from 
Bolivia, Brazil, Cuba, Ecuador, India, Peru, Th ailand and Venezuela entitled "the Relationship 
between the TRIPS Agreement and the Convention on Biological Diversity (CBD):  Checklist of 
Issues" (IP/C/W/420 and Add.1). 
36. Introducing this new submission (IP/C/W/420 an d Add.1), the representative of India said 
that discussions on the relationship between the TR IPS Agreement and the CBD and on how to ensure 
their mutual supportiveness had taken place in the Council for TRIPS since 1999.  Specific issues had 
arisen within this discussion.  One of the major c oncerns that had been expressed by some Members 
was that the TRIPS Agreement allowed the granting of patents for inventions that used genetic 
material and associated knowledge without requiring compliance with the provisions of the CBD.  To 
the extent that bio-piracy was accepted as a majo r problem, the challenge was to determine what 
measures needed to be taken within the fra mework of the TRIPS Agreement to prevent 
misappropriation of genetic materi al and to support the objectives a nd implementation of the CBD.  
While discussions had continued in the Council foll owing the mandate given to it by Ministers in 
Doha, significant work remained to be done in orde r to find a satisfactory solution.  The checklist of 
issues had been prepared in order to facilitate more focused, structured and result-oriented 
discussions.  It had been drawn up on the basis of the issues raised and the points made by various 
delegations in their communications and statements in the Council since 1999 and, in particular, in the 
post-Doha period.  The purpose of the checklist was to assist and expedite the process and not to limit 
the ambit of the discussions.  The checklist was to  be considered open for Members to raise and 
address any additional elements that were  of significant concern to them.   
37. The representative of the Europ ean Communities agreed on the need for a focused discussion 
on the relationship between the TRIPS Agreement a nd the CBD.  The Council should, as a matter of 
priority, focus on issues on which Members could reasonably expect to make progress, but not on 
issues in respect of which there was a serious dive rgence of views among Members.  In this respect, 
he thought that the communication IP/C/W/420 was timely and useful.  He agreed that there was a need to examine and determine what  measures needed to be taken w ithin the framework of the TRIPS 
Agreement to support the implementation of the CBD .  Disclosure of source and related issues was a 
good candidate for a focused and detailed examinatio n which would preferably lead to major progress 
on this issue.  The European Communities was read y to take up all the issues mentioned in the 
checklist of issues without prejudice to the outco me.  Recalling a communication the European 
Communities had made in September 2002 (IP/C/W /383), he said that his delegation did not 
necessarily agree on all aspects taken up in the ch ecklist.  However, discussion on the checklist would 
allow the European Communities to explain why it to ok this point of view.  His delegation was in 
favour of starting negotiations on disclosure of sour ce, but was hesitant about disclosure of evidence 
of prior informed consent for the reasons outlined in the EC communica tion.  As to the forum within 
the WTO, he wondered whether this issue was c onsidered as part of outstanding implementation 
issues, which should normally be dealt with by the TNC in the broader framework of paragraph 12 of 
the Doha Declaration.  He recalled that his delegation had said in the past that it was ready to consider 
disclosure of source as part of outstanding implementation issues, but, if necessary, it was also ready 
to discuss the matter in the Council pending a clarification of this question in the TNC. 
38. Commenting on the African Group's communication (IP/C/W/404), he agreed that there was a 
need to move forward.  It was important to star t focusing on certain issues and to be selective.  He 
believed that the TRIPS Council could find pragma tic and creative solutions without upsetting the 
balance of rights and obligations under the TRIPS Ag reement.  He noted that the African Group had 
distinguished between "possible areas of agre ement" and "areas without common understanding".  
Although he could not agree on all the details in relation to the issues identified as possible areas of  IP/C/M/43 
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 agreement, he thought it should be relatively easy  for Members to reach a common understanding on 
them.  Regarding the issue of an effective sui generis  system for the protection of plant varieties, he 
said that the UPOV system was a good one but not th e only one, and it did not rule out other possible 
sui generis  systems as long as they were effective.  Hence, the Council might discuss further the 
conditions under which a sui generis  system for the protection of plant varieties could be considered 
to be effective.  He said that it remained to  be seen whether there was a common understanding on 
this matter, and referred to a number of criteria listed in the EC communication.  In his view, the 
TRIPS Agreement left scope for certain farmers'  exceptions both under pate nt and plant varieties 
protection systems, provided that they were limited to subsistence farmers and small farmers.  While 
farmers who had an activity on a commercial scale s hould not be subject to fa rmers' exemptions, there 
was room for discussion regarding certain categories of farmers in developing countries. 
39. He agreed that the TRIPS Agreement and th e CBD should be implemented in a mutually 
supportive manner.  He informed the Council th at the European Commission had submitted a 
communication to the European Parliament and th e Council, in which the Commission had indicated 
several ways of implementing the Bonn guidelines  on access to genetic resources and fair and 
equitable sharing of the benefits arising out of their utilization.  The communication, which also 
reflected on disclosure of origin, was the Commission 's proposal for further action at the level of the 
European Communities.  He agr eed with the African Group that the TRIPS Agreement did not 
prevent Members from protecting traditional knowledge or certain types of plant varieties which did 
not satisfy the criteria provided for in UPOV.  Th is was allowed under the TRIPS Agreement as long 
as the protection was in line with other provisions of  the Agreement.  He also agreed on the necessity 
to identify and document genetic resources and tr aditional knowledge to assist patent examiners' 
consideration of novelty.  On the one hand, pate nts examiners should be fully informed about prior 
art, and, on the other hand, it was necessary to pr ovide protection against abuse.  Many technical 
issues needed to be addressed, not necessarily all of  them in the TRIPS Council but also in WIPO. 
40. Turning to the "areas without common understandi ng", he said that there was a critical mass 
of Members who believed that the balance in Artic le 27.3(b) on what was patentable and what was 
not should not be upset and that there was no ch ance in the foreseeable future of reaching any 
agreement on a drastic review of Article 27.3(b), esp ecially on the prohibition of patenting life forms.  
Many Members had a biotechnology industry which they  wished to protect.  It was unrealistic to 
believe that they would agree with proposals to cu t back the protection of the biotechnology sector.  
Paragraphs 1-3 of Article 27 provided flexib ility for Members to establish their own systems 
according to their own development needs.  These flexibilities included  the criteria of patentability 
and the interpretation of the term "invention".  He wished to make it clear that the European 
Communities did not want to engage in work on cu rtailing the scope of Article 27.3(b) to provide 
patent protection to biotechnological inventions.  At  the same time, this protection should take into 
account the legitimate concerns of those who provide  biological material a nd traditional knowledge.  
Hence, he was prepared to look at ways to make  sure no bad patents were granted in respect of 
existing genetic resources or trad itional knowledge.  With regard to  the distinction between micro-
organisms, animals and plants he said that, since th ere was no agreement on this issue in the scientific 
field, it would be difficult to discuss this issue in the TRIPS Council.  In his view, this was an 
additional flexibility for Members to explore and one that should not be looked at negatively. 
41. Regarding the draft decision on traditiona l knowledge annexed to the African Group's 
communication, he said that the protection of trad itional knowledge was a new issue and a system of 
protection would need to be built from scratch.  Hi s delegation believed that it was important to have 
international guidelines on this issue, especially from WIPO and hence it might be premature to start a 
discussion on this issue in the WTO.  He also re minded Members that in the run-up to the Cancun 
Ministerial Conference, few Members had raised the issue of traditional knowledge.  Therefore, 
Members should look at the urgent issues and leave work on positive protection of traditional 
knowledge to the WIPO for the time being.  He noted  that the enumeration with respect to traditional IP/C/M/43 
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 knowledge in paragraph 6(a) of the draft decisi on on traditional knowledge was open-ended and there 
was no clear definition of traditional knowledge.  In his view, before starting to discuss an 
international regime for the protection of tr aditional knowledge, Members must have a common 
understanding of what was traditional knowledge.   
42. The representative of the European Commun ities noted that, under the draft decision, 
traditional knowledge would be protected without a time-limit.  In this respect, he said that the 
protection of intellectual property rights in th e TRIPS Agreement, except those related to 
denominations such as geographical indications and trademarks, was limited in time.  There was a good reason for this:  a limited monopoly was created for a certain period of time to allow the innovator to recoup its investment, and after that pe riod of time had lapsed, the innovation fell into the 
public domain.  Under the patent system, there was also the possibility of compulsory licensing.  He 
found it unacceptable to propose protection through pe rpetual exclusive rights of use of something 
that the proponents themselves considered as very important for the mankind.  If, for example, a 
community knew of a cure for cancer deriving fr om plants, would it be acceptable to allow this 
community to keep this knowledge only for its ow n benefit and not share it with the rest of the 
humankind?  It was important to reward those who contributed to innovation through traditional 
knowledge but giving perpetual exclusive rights to authorize the use of traditional knowledge was the 
wrong way to do this. One should rather think in term s of a right to be remunerated for the use of 
traditional knowledge by third parties, through benef it-sharing. This might best be further discussed at 
the Intergovernmental Committee on Intellectua l Property and Genetic Resources, Traditional 
Knowledge and Folklore of WIPO ("IGC"). 
43. The representative of Pakistan said that, at the Council's last meeting, his delegation had 
pointed out the need for a focused discussion on th e relationship between the TRIPS Agreement and 
the CBD.  He requested the addition of his delegation to the list of sponsors of document IP/C/W/420.  
Referring to the European Commun ities' intervention, he said that it was heartening that Members 
were willing to look at the checklist with a degr ee of openness.  He said that Article 27 provided 
support and protection for the biotechnology industr y through three criteria of patentability provided 
for therein.  His delegation's attempt was to protect bona fide  owners of biological resources through 
an interpretation of the TRIPS Agreement in a manner consistent with the CBD.   
44. The representative of Peru supported the statemen t of the delegation of Pakistan and said that 
Peru was the cradle of one of the world's six "mot her" civilizations.  The Inca civilization was not 
only the origin of the Peruvian people, but al so of other peoples and communities which had 
developed highly advanced civiliza tions.  Caral, America's oldest city founded approximately 6000 
years ago, revealed no traces of armaments or visible signs of violence.  On the other hand, archaeologists had found the remains of plant products and species from various parts of the American continent and evidence of trade in ag ricultural goods, textiles, and jewellery.  This 
community had understood the properties of vari ous plants and transmitted this knowledge from 
generation to generation.  For example, Maca, al so known as the ginseng of the Andes or Andean 
Viagra, was a plant whose energy-giving properties had been understood by the indigenous peoples in 
Peru for thousands of years.  Peru currently had a study group to examine a number of blatant 
incidences of bio-piracy, which had submitted its re port to the IGC of WIPO.  The Council should be 
aware of the serious prejudice that was being caused to biodiversity-rich countries and of the 
shortcomings of the current intellectual property sy stem.  The grant of a product patent to Maca in 
some countries which had no provision for prior-infor med consent, disclosure of origin, and benefit-
sharing not only hindered the development of the Pe ruvian peoples and communities, but also led to 
additional costs for Peru in cases where it decided to take legal action against such practices.   
45. There was therefore a need to include the di sclosure requirement in the TRIPS Agreement 
and the WTO was an appropriate forum for Memb ers to present their concerns.  Although many 
subjects relating to the protection of genetic res ources as well as traditi onal knowledge were being  IP/C/M/43 
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 dealt with in other forums, such as WIPO, CBD  and UNCTAD, the WTO was the only forum that 
linked the protection of intellectual property with trade, and indeed, with the Doha Mandate.  The 
WTO was also the only body that could ensure the protection of traditional knowledge from a development perspective.  He said that the TRI PS Council must tackle the needs of developing 
countries, in particular the biodiversity-rich devel oping countries.  Only then could the WTO truly put 
an end to the prejudice suffered by the indi genous peoples and native communities.   
46. The representative of Zimbabwe asked the co -sponsors of document IP/C/W/420 to clarify 
under which article of the TRIPS Agreement Memb ers should deal with the proposed checklist of 
issues.  Referring to the European Communities'  comments on the African Group's submission, he 
suggested that the Council come up with a decisi on to lock up the common understanding on some 
issues between the European Communities and the African Group so as to avoid re-opening the 
discussion on these issues.  Referring to the view expressed by the European Communities that some 
issues would better be discussed in WIPO rather th an in the WTO, he said that WIPO had no 
exclusive authority to deal w ith these issues and that the WTO had its own mandate.     
47. The representative of Japan said that it was important to take effective measures against bio-
piracy and misappropriation of genetic resources a nd associated traditional knowledge.  In his view, 
the first step was to complete the basic analysis of bio-piracy and misappropriation.  His delegation 
would like to examine the proposed checklist of issues a nd get back to it in due course.  He said that it 
was necessary to distinguish two sets of measures against bio-piracy and misappropriation:  those within and those outside the framework  of intellectual property regimes. 
48. Regarding whether the disclosure requirement a nd prior informed consent would effectively 
prevent bio-piracy and misappropriation of genetic resources, he suggested that Members should take 
account of the decisions made at the seventh meeti ng of the Conference of the Parties (COP) to the 
CBD held in Kuala Lumpur, Malaysia in February 2004.  He said that the COP decided to request the Ad Hoc Open-ended Working Group on Access and Bene fit-Sharing to negotiate an international 
regime on access to genetic resources and benefit-shar ing in which disclosure of origin of genetic 
resources in applications for intellectual property ri ghts could be examined as one of the important 
elements.  It also decided to invite WIPO to ex amine issues regarding the interrelation of access to 
genetic resources and disclosure requi rements in applications for inte llectual property rights.  He said 
that his delegation's basic position was that these i ssues should be elaborated upon in the relevant 
international forum.  The IGC appeared to be one  of the most suitable forums, at least for the 
discussion on intellectual property-related issues.  He  also said that duplication of the work on these 
issues should be avoided among the international organizations.   
49. The representative of Venezuela expressed her delegation's support to document IP/C/W/420.  
She said that the checklist of issues needed furt her examination in the TRIPS Council in accordance 
with paragraph 19 of the Doha Ministerial Declar ation.  As regards traditional knowledge, she said 
that it continued to be an important issue and that at the Cancún Ministerial Conference, her 
delegation had been active when this issue had been  discussed.  She also indicated that although the 
work carried out by WIPO was important, it should not be exclusive.  She was of the view that the issue of traditional knowledge was not tackled in  a comprehensive manner in WIPO.  She recalled 
that the resolution adopted by the WIPO General A ssembly in 2003 clearly indicated that WIPO was 
not the sole forum for discussion on this issue and that the work done in WIPO should not have any 
negative effect on the discussions in other forums.   
50. She further said that WTO Members should be  able to require disclosure of source, 
prior-informed consent and benefit-sharing in order to prevent bio-piracy and abuse of biological resources and the TRIPS Council was an appropriate forum for discussions on these matters.  As regards the term of protection of traditional kn owledge, she noted that since traditional knowledge 
was constantly developing and ha d its own dynamism, the protection should not be limited in any IP/C/M/43 
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 way.  In other words, traditional knowledge should be  treated in the same way that some delegations 
wished to treat geographical indications, particularly in terms of the permanent nature of protection.   
51. The representative of Norway said that, when interpreting the term "effective sui generis  
system" under Article 27.3, Members should keep in mind that the protection of intellectual property 
rights should benefit the society in a balanced way.  In the case of protection of plant varieties, he said 
that a fair balance should be struck particularly  between the interests of innovators/breeders and  
farmers.  The existing sui generis  systems had such a balance.  For instance, the various UPOV 
conventions allowed the use of farm-saved seed wit hout payment of royalties, the so-called "farmers' 
privilege".  A fair balance could vary from one c ountry to another and change over time in a given 
country. 
52. Countries in an advanced state of industrialization might wish to strengthen their plant 
varieties protection systems and the rights of plant breeders with a view to having a more efficient agricultural sector.  In this context, stimulati ng modern plant breeding on a commercial basis had 
generally been seen as an important step toward s achieving higher productivity, a basic goal of 
farmers, governments and food organizations worl dwide.  In many developing countries the 
agricultural sector consisted of a large number of small farmers who coul d not easily afford to 
frequently purchase protected seed material.  In many such farming communities there might exist a 
long tradition of local seed management wher e small farmers used seed from their own crops, 
exchanged seed with their neighbours, or sold s eed in their local markets.  Such local seed 
management might be important for many small- scale farming communities both economically and 
socially, including for food security.  Furthermore,  in many such areas farmers might have a tradition 
of mixing purchased seed with different local varieties,  thereby creating new seed varieties that 
contributed to food security as well as biodiversity.  By doing so farmers were in fact continuing their traditional plant breeding at local level.  The notio n of farmers' rights was founded on plant breeding 
done by farmers through the centuries.  This fact ha d been described by the European Communities in 
their communication as the "ancestral role" of farmer s and reflected farmers' contribution to genetic 
material used by modern plant breeders today.  Fr om this perspective local seed management by small 
farmers might be seen as an "accumulated right".  Norway was of the view that the TRIPS Agreement allowed necessary flexibility to accommodate the inter ests of small farmers in developing countries as 
well as that of modern plant breeders.  However, under the assumption that a viable sui generis  
system should be fair and balanced, the flexibility re garding farmers' rights mu st have its limits.  For 
instance, a system that would allow the unrestricted use or sale of protected seed varieties would be 
neither compatible with the concept of fa rmers' rights nor with Article 27.3(b).   
53. Further, the representative of Norway said that some countries might wish to opt for a system 
which allowed a significant degree of local seed management that might not be consistent with 
UPOV, particularly UPOV 1991.  His delegation shared many concerns expressed by the African Group in document IP/C/W/404.  Norway also ag reed with the European  Communities that the 
absence of a definition of an effective sui generis  systems allowed a considerable degree of flexibility 
in determining the standard of effectiveness and in designing a protection regime appropriate to a 
specific national situation.  In this respect , UPOV was not the only effective or valid sui generis  
system under Article 27.3(b). 
54. Regarding the relationship between the TRI PS Agreement and the CBD, he informed the 
Council that Norway had recently amended some of the provisions of its Patent Act,  taking account of 
certain provisions of the CBD relating to benefit-sh aring and prior informed consent.  Under the new 
provisions, patent applications concerning biolog ical material would include information on the 
country of origin of the material.  Should the nati onal legislation of the providing countries so require, 
information on  prior-informed consent would also  be submitted.  These provisions did not, however, 
apply to international patent a pplications.  The duty to provide the information would be without 
prejudice to the processing of patent applications .  Nevertheless a failure to provide correct  IP/C/M/43 
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 information was subject to penalty in accordance with  the General Civil Penal Code with respect to 
giving false testimony in writing to a public authority.  A translation of these amended provisions was available as a non-paper to WTO Members.  Hi s delegation would subsequently notify all the 
amendments to the Patent Act to the Secretariat.  Finally, he said that the joint communication 
IP/C/W/420 would be a useful element for Memb ers' further deliberations on this issue.  
55. The representative of the United States said that his delegation's positions on these three 
agenda items were well-known and re mained unchanged.  With regard to the relationship between the 
TRIPS Agreement and the CBD, his delegation saw no conflict between them and believed that they 
might be implemented in a mutually-supportive ma nner and an amendment to the TRIPS Agreement 
was neither required nor desirable.  His delegation continued to oppose effort s to try to enforce the 
CBD through the patent system and, in particular , did not support the disclosure requirement within 
the patent system.  Instead, he believed that natio nal systems, independent from the patent system, 
should be adopted to regulate the issues of prior informed consent, equitable benefit-sharing and 
misappropriation of resources.  His delegation agreed that there was a need for further discussion on these matters.  However, he did not believe that  the proposed checklist of issues contained in 
document IP/C/W/420 would be the be st approach for the TRIPS Council at this time.  He pointed out 
that the WIPO IGC would be engaging in detaile d discussions on these issues under its new mandate.  
In this respect, he associated his delegation with  the views of Japan and the European Communities 
and said that the IGC was a better forum for deta iled discussions on these issues.  Those discussions, 
once accomplished, could be informative for the deliberations going on in the TRIPS Council. 
56. The representative of China said that focused discussions on the three agenda items would 
expedite the process, and his delegation looke d forward to detailed discussions on document 
IP/C/W/420.  He sought clarification on three i ssues:  in what forum Me mbers should discuss these 
issues, how Members should conduct the discussion s, and who should summarize the outcome of the 
discussions.  He hoped that a technical paper coul d be provided for Members as a basis for future 
discussions.  With regard to the relationship betw een the TRIPS Agreement and the CBD, he said that 
the CBD recognized the sovereign rights of states ove r their natural resources and the authority to 
determine access to genetic resources.  The CBD al so stipulated that access to natural resources 
should be on mutually-agreed terms and subject to prior informed consent.  The CBD called upon its 
contracting parties to equitably share the benef its arising from the commercialization of genetic 
resources.  On the other hand, the TRIPS Agreement obliged Members to protect inventions in all the 
fields, including biotechnology.  It did not prohibi t applicants from applying patents for inventions 
related to genetic resources in violation of na tional sovereignty, prio r informed consent and 
benefit-sharing.  His delegation believed that th e TRIPS Agreement should be amended, pursuant to 
the mandate in paragraphs 12 and 19 of the Doha Ministerial Declaration, so that the two conventions 
could be implemented in a mutually-supportive manner. 
57. The representative of Chinese Taipei said that competent authorities, research institutions and 
the private sector in his jurisdiction had great interest  in the three agenda items.  In fact, the internal 
debate was still outstanding and policy direction was in the process of review.  With regard to the 
issue of forum, he noted that some international fo rums, such as the WIPO IGC, were suggested to be 
appropriate forums for these three items or to be complementary mechanisms to facilitate the discussion in the TRIPS Council.  He said that alth ough his delegation had not had the opportunity to 
participate in the discussions in those forums, he  had been trying to follow these discussions closely 
because they were not only useful for Chinese Taipei to decide its own domestic legislation but also 
useful to form its own view on these issues.   
58. Referring to the Swiss submissi on IP/C/W/400/Rev.1, he said that his delegation shared the 
view regarding the importance of establishment of a database on traditional knowledge.  He said that 
the database could be useful for Members' further ex amination of this issue.  He informed the Council 
that Chinese Taipei's competent authorities had al ready established a database related to oriental IP/C/M/43 
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 medicine and herbs, and the effectiveness of this sy stem was being tested.  He expressed an interest to 
know more about the Swiss proposals, particularly on  the international Internet portal for traditional 
knowledge.  
59. The representative of Switzerland said that document IP/C/W/420 helped the Council 
understand what certain delegations wished to di scuss under the three agenda items.  The idea of 
establishing a checklist of issues was worth considerin g for the conduct of the Council's further work.  
The issues and questions included in such a checklist n eeded to be agreed by co nsensus.  With regard 
to the questions and issues raised in document IP/C/W/420, he said that it was important that the TRIPS Council avoid duplication of the work carried out  by other international forums, in particular 
in the IGC of WIPO, and WIPO's Working Group on the Reform of the Patent Cooperation Treaty.  In 
this regard he associated his delegation with the statement made by Australia at the last TRIPS 
Council meeting that the TRIPS Agreement and the CBD  were mutually supportive and not in conflict 
and that efforts needed to be focused on examini ng compatible implementation of the two agreements 
at the national level.  He recalled that his dele gation had informed the TRIPS Council in June 2003 of 
its proposals submitted to the WIPO Working Group on Reform of the PCT, in which Switzerland had 
proposed to explicitly enable contracting parties of the PCT to require, at the national level, patent 
applicants to declare the source of genetic resour ces and/or traditional knowledge in international 
patent applications.  When drafting these proposals,  Switzerland had considered in detail the issues 
arising with regard to the disclosure requirements, including those contained in document IP/C/W/420. 
60. With regard to the disclosure requirements unde r patent laws, he referred to the decision 
adopted by the seventh meeting of the COP of the CBD held in Kuala Lumpur in February 2004.  He 
said that the decision invited WIPO to address issu es regarding the interrelation of access to genetic 
resources and disclosure requirements in intellect ual property applicati ons.  Switzerland would 
actively contribute to the work of WIPO on this issue.  He also informed the Council that his 
delegation intended to submit to the TRIPS Council in June 2004 an information note on the 
document that Switzerland would submit to the sixt h Session of the WIPO Working Group on Reform 
of the PCT to be held in May 2004.  This doc ument would contain additional comments on the Swiss 
proposals with regard to the declaration of sour ce of genetic resources and traditional knowledge in 
patent applications, including the use of terms, th e concept of the source of genetic resources and 
traditional knowledge, and the scope of the obligation to declare the source in patent applications.  
61. The representative of Brazil said that the propo sal in document IP/C/W/420 would help the 
Council to have a structured debate and was not m eant to exclude or impede a consideration of any 
other proposals Members wished to raise.  With  regard to the Council's mandate to address the 
relationship between the TRIPS Agreement and the CBD , he said that any attempt or suggestion that 
work on this issue not be pursued in the Council but in other forums seemed to be inconsistent with 
the mandate and instruction given to the Council by the Ministers of Doha.  Responding to the 
argument that the Council did not have the experti se to address this issue and that other forums, 
especially the WIPO IGC, had the required experti se, he said that the Council had a considerable 
amount of expertise in terms of the delegations and the Secretariat.  He further said that the pertinent 
paragraphs of the Doha Ministerial Declaration referred to the need to take into account the 
development dimension of these issues, which wa s very important and not found in the mandates 
contained in other forums. 
62. He expected discussions on the proposal contai ned in document IP/C/W/420 to take place in 
due course in accordance with the instruction given by Ministers.  He agreed with certain other 
delegations regarding the need to address these issues with an open mind and in a non-dogmatic 
manner, which had driven his delegation to identify the issues as included in the checklist.  He pointed 
out that although the checklist indicated several important technical points that would have to be 
addressed in the course of debate, it was a non-exhaus tive list and that Members were free to raise any  IP/C/M/43 
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 other points.  He further said that the WIPO General Assembly had adopted a resolution on the 
extension of the mandate of the IGC in Sept ember 2003, which acknowledged that WIPO did not 
have an exclusive mandate to address these issues.  A set of decisions recently adopted by the COP of 
the CBD invited all relevant inte rnational organizations to address the issue of disclosure, which 
should include the TRIPS Council.  In conclusion,  he hoped that the TRIPS Council could agree on 
the proposal contained in document IP/C/W/420, and have a focused and structured discussion on 
these issues. 
63. The representative of Indonesia said that the purpose of document IP/C/W/420 was to assist 
the Council in having focused discussions and to e xpedite the process.  One of the priorities in 
addressing the relationship between the TRIPS Agre ement and the CBD was to address the disclosure 
of genetic resources and traditional knowledge under the TRIPS Agreem ent.  In this context, the 
checklist provided Members with a better understanding of the specific issues and concerns regarding 
the disclosure requirements.   
64. The representative of the European  Communities clarified that his delegation agreed that the 
Council had its own mandate and th at WIPO had no monopoly on these issues.  However, he said that 
Members should first concentrate on those issues on which they were likely to achieve some results, 
such as disclosure of source.  With regard to sui generis  protection of traditional knowledge, he said 
that for the time being WIPO might have more re sources to deal with this issue than the TRIPS 
Council.  He reiterated that his delegation was fully prepared to discuss the ch ecklist and also invited 
all other Members, including those who had problem w ith some subjects contained in the checklist, to 
at least explain why they thought the subjects should no t be addressed in the Council.  He said that the 
review of Article 27.3(b) should not upset th e existing balance in the TRIPS Agreement and 
commended the Swiss proposals in the PCT.  
65. As regards the similarities between geographi cal indications and traditional knowledge, he 
took the view that while there were indeed such si milarities, such as the link with local communities, 
one should not lose sight of a fundamental differe nce in terms of protected subject-matters.  
Geographical indications protected denominations or indications of products, while traditional 
knowledge was related to know ledge.  The protection of GIs as i ndications of certain products could 
not prevent others from making exactly the same products so long as they used a different 
denomination.  However, as traditional knowledg e was knowledge which could be important to 
scientific development, it would not be justified to  grant rights that would allow anybody to prevent 
the use of such knowledge for an unlimited period of time.  Those who had contributed to science 
should be rewarded but the protection could not cons ist of the granting to the holders of traditional 
knowledge an eternal exclusive right to authorize th e use of such knowledge by third parties, as this 
could result in the impossibility of anybody other th an the holders of the traditional knowledge ever 
benefiting from that knowledge.  
66. The representative of South Africa said that discussion on indigenous  knowledge/traditional 
knowledge should continue in the TRIPS Council as well as in WIPO and that IP/C/W/420 would 
help to reinvigorate the discussion in the Council.   She informed the Council that it had taken 
South Africa almost five years to try and draw up its own legislation on indigenous knowledge.  
South Africa had 11 national languages, and even  more clans and groups.  The discussion on 
indigenous knowledge needed to continue in all fo rums and there was also a need to coordinate the 
different forums.  With respect to the distincti on between GIs and traditional knowledge made by the 
European Communities, she said that GIs did cove r certain parts of indigenous knowledge while 
patents covered some other parts.  Finally, she strongly supported continuing the discussion in the 
TRIPS Council based on the non-exclusive checklist contained in IP/C/W/420.   
67. Responding to the EC's question on whether disclos ure of source was considered as part of 
outstanding implementation issues, the representative of India said that, from the perspective of his IP/C/M/43 
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 delegation, the issue was definitely one of th e outstanding implementation issues under paragraph 12 
of the Doha Ministerial Declaration which remain ed within the purview of the TNC.  Focused 
discussions on this issue in the TRIPS Council under the mandate given by paragraph 19 of the Doha 
Ministerial Declaration would facilitate further work on outstanding implementation issues in the 
TNC.  He said that there were multiple forums di scussing in parallel all the issues under discussion in 
the WTO, such as the WHO and the FAO.  He indi cated that the discussions in other organizations 
could help and enrich the discussions in the Counc il and Members should not defer the discussions in 
the Council just because other organizations were di scussing similar issues.  He urged the Council to 
organize discussions on these issues in a structured format in the future.  He reiterated that the 
purpose of the checklist was to assist with and expe dite the process and not to limit the ambit of 
discussions.  The checklist should be consider ed open for Members to raise and address any 
additional elements that were of significant concern to them.   
68. The representative of Kenya agreed to ha ve focused discussions and believed that 
IP/C/W/420 provided a good way of conducting such di scussions.  He said that, since the relationship  
between the TRIPS Agreement and the CBD was of  great importance to his delegation, Kenya 
supported continuing discussions in the TRIPS Council,  irrespective of discussions in other forums.  
He also pointed out that it was important for Me mbers to have coordinate d positions in different 
forums  
69. The Chairman, noting that there was not a con sensus on using the checklist as contained in 
document IP/C/W/420 as a basis for further work, sai d that it might be necessary for his successor to 
hold consultations before the Council's next meeting on how future work on these three agenda items 
should be organized. 
70. The Council took note of the statements made.   
F. REVIEW OF IMPLEMENTATION OF THE TRIPS AGREEMENT UNDER ARTICLE 71.1 
71. The Chairman recalled that a substantial number  of suggestions for topics to be considered 
under Article 71.1 review had been made prior to th e Doha Ministerial Conference, but some of them 
had overlapped with other items on the Council's post-Doha agenda.  Sin ce Doha, some general 
observations had been made under this item, but no  suggestions for topics to be taken up had been 
tabled by any Member. 
72. The Council agreed to revert to the matter at its next meeting. 
G. REVIEW OF THE APPLICATION OF THE PROVISIONS OF THE SECTION ON GEOGRAPHICAL 
INDICATIONS UNDER ARTICLE 24.2 
73. The Chairman recalled that Article 24.2 provi ded that the Council should keep under review 
the application of the provisions of the geographical  indications Section of the Agreement, and that 
the first such review should take place within 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 document IP/C/13 and 
addendum 1 to do so.  Since the Council's meeting in November 2003, further information in response 
to the Checklist had been received from Moldova.  These responses had been circulated in addendum 
29 to document IP/C/W/117.  To date, the Coun cil had received responses to the Checklist from 45 
Members.  At its June 2003 meeting, the Council ha d also requested the Secretariat to update its note 
that summarized the information received from Memb ers in response to the Checklist of Questions.  
This updated summary had now been circulated in document IP/C/W/253/Rev.1.  IP/C/M/43 
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 74. The Chairman further recalled that, at the Council's meeting in November, a number of 
delegations had said that it would be helpful to ha ve a more structured discussion under this agenda 
item, and had  suggested that he and the Secretariat work together with Members to consider how to 
carry forward the review.  In response to these suggestions, he had conc luded the discussion by 
indicating his intention to hold informal consultations  on this matter prior to the Council's next formal 
meeting.  He said that since then he had consu lted Members on this issue.  In light of these 
consultations, it appeared that Members were not yet ready to come to a conclusion on how they 
wished to carry forward the review.  Therefore, he  was not in a position to make any suggestions in 
that regard.  This seemed to indicate that the C ouncil should keep the matter on its agenda so that 
Members could revert to the issue of how to structure the review at a later stage. 
75. The representative of the European Commun ities said that, according to the text of 
Article 24.2, the review was about the applicati on of the provisions of Section 3 and not about 
national implementing legislation.  The latter had been dealt with under another agenda item and 
should not be duplicated.  Further work under Article  24.2 review should fully take advantage of the 
work already done, i.e. the information provided in  response to the Checklist of Questions and the 
summary note prepared by the Secretariat.  While  being open to exploring any other suggestion, he 
believed that it would be useful to base further work  on the summary note prepared by the Secretariat. 
76. The representative of Australia said that she ag reed with the course of action proposed by the 
Chairman.  Her delegation had always seen the Arti cle 24.2 review as an important opportunity to 
consider how the general provisions of the TRIPS Agreement had been applied in practice.  This 
allowed, firstly, assessment of the practical effect  of the treaty language and, secondly, provided an 
information base that would allow Members to gauge the actual benefits that had accrued.  This would 
provide a clearer basis for discussing the policy aspects of GI protection.  However, in practise, the 
Council remained without a clear basis for a discussi on on the policy aspects of GI protection.  In her 
view, it had been difficult for the Council to progress the review.  Irrespective of the length of time 
the review had been underway, in terms of substance,  the Council remained at a very formative stage.  
Some of the discussion under a previous agenda item had highlighted the significant uncertainty that 
persisted on the issue of GI protection. 
77. She noted that Members had posed a series of questions to one another concerning their 
domestic arrangements for GI protection, and the responses to these questions were contained in 
summary form in document IP/C/W/253/Rev.1.  Ther e was also a large amount of information on 
national GI systems that had come to light as a result of the Article 63 review of national 
implementing legislation, which was continuing.  As it related to  GIs, there had been relatively little 
by way of discussion or analysis of this material in the Council.  She was open on how this information should be handled but, at this stage at least, she was not persuaded that it be left 
completely to one side.  In her view, the question for Members was how to capitalize on the information provided both in response to the Checklist  and in the context of the review of national 
legislation.  Her delegation intende d to give further consideration to this matter.  It was primarily 
interested in a review process that would encourage participation by all Members.  It had given suggestions to the Chair, and was also open to the suggestions made by other delegations, such as the 
proposal by New Zealand, supported by the United States, to work through the GI provisions of the Agreement paragraph by paragraph. 
78. The representative of Switzerland said that he w as in favour of a structured and focused 
discussion and open for any constructive proposals in this regard.  In fact, the Council had already 
started work in a structured manner at its earlier meetings using the headings of the Secretariat summary note.  Given other priorities, there had been  a break in this work.  Since the use of these 
headings continued to be an appropriate way of pro ceeding, he proposed that, at its next meeting, the 
Council resume the work where it had left it.  This work should take into account work done 
elsewhere and not duplicate it.  He could not suppor t Australia's proposal to examine the GI Section IP/C/M/43 
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 of the Agreement provision by provision, because th is did not seem to be covered by the mandate 
under Article 24.2. 
79. The representative of the United States said that  he could support the Chairman's initial 
proposal to work through these issues through consul tations.  He continued to support the proposal to 
walk through the GI provisions paragraph by pa ragraph. Further, he believed that if all WTO 
Members were to provide respon ses to the Checklist of Questions, the Council would have a more 
complete picture of the variety of ways in whic h Members had implemented their obligations.  This 
would make the walk-through appr oach much more meaningful. 
80. The Chairman noted that there remained diffe rences of views on how to carry forward the 
review.  He proposed that the Council keep this matt er on its agenda so that Members could revert to 
the issue of how to structure the review at a later stage. 
81. The Council took note of the statements and agr eed to proceed as suggest ed by the Chairman. 
H. DECISION ON THE IMPLEMENTATION OF PARAGRAPH 6 OF THE DOHA DECLARATION ON 
THE TRIPS  AGREEMENT AND PUBLIC HEALTH  
82. The Chairman recalled that, at its meeting of 30 August 2003, the General Council had  
adopted the decision on "Implementation of Para graph 6 of the Doha Declaration on the TRIPS 
Agreement and Public Health" (WT/L/540).  Paragra ph 11 of the Decision provided that the Decision, 
including the waivers granted in it, should term inate for each Member on the date on which an 
amendment to the TRIPS Agreement replacing its provisions would take effect for that Member.  Furthermore, it instructed the TRIPS Council to initia te by the end of 2003 work on the preparation of 
such an amendment with a view to its adoption within six months, i.e. by June 2004, on the 
understanding that the amendment would be based, where appropriate, on this 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. 
83. He added that he had informed the Council, at its meeting in November, that he had  intended 
to hold a series of informal consultations in various  formats, in small groups  as well as in open-ended 
sessions, on this subject prior to the present meeting of the Council.  He had  held the first round of 
consultations in small groups in December to fi nd out how delegations wished to proceed on the 
amendment issue.  Having given delegations further time to reflect, he had  held another round of 
consultations in early February, again using the small group format.  At an open-ended informal 
meeting on 4 March 2004, he had re ported to Members on these two r ounds of consultations and had  
heard their views on this subject in the broader se tting.  He said that he would attempt to summarize 
to Members the main strands of the views and ideas that he had heard so  far, but noted that, 
inevitably, this summary would not be able to captu re every nuance of every position.  He added that, 
in the second round of consultations th at he had held, he had invited delegations to express their views 
under three headings, namely the content of the am endment, the legal form of the amendment, the 
legal form that the amendment should take and the timing of the amendment.  He said that he would 
structure his summary under these headings. 
84. The Chairman said that, with regard to the content  of the amendment, one issue was the 
treatment of the Chairman's statement.  Some delegations had  advocated that the Chairman's 
statement, as well as the Decision, should be reflect ed in the amendment in a manner that would not 
alter the substance of the texts nor their legal stat us, arguing that the two were integral parts of the 
agreement reached in August 2003.  Some others had  believed that the Chairman's statement should 
not form part of the amendment, arguing that to do  so would give the Chairman's statement greater 
legal status in relation to the amendment than it had in relation to the Decision.  Some of these 
delegations had  indicated that they could envisage that th e Chairman's statement might be reiterated  IP/C/M/43 
 Page 17 
 
 
 by the Chairman of the General Council at the tim e that the General Council approved the amendment 
and opened it for acceptance by Members.  Some othe rs had been flexible about identifying elements 
in the Chairman's statement that c ould be incorporated in the amendm ent.  A specific point of concern 
for some Members had been to avoid doing anything with the Chairman's statement that would change the voluntary nature of the partial opt-outs on  the part of some Members that had been referred 
to in the statement. 
85. Some Members had indicated that, in their view, there might be parts of the Decision which 
were not appropriate for the amendment, and that there may be elements which might need to be 
improved upon or added to in the light of the experience.  Some other Members had  stressed that, in 
their view, the amendment process should be a technical exercise and that the substance of the 
Decision should not be re-opened. 
86. As regards legal form , some delegations had indicated a preference for the use of a footnote to 
Article 31 which would have the effect of making it clear  that this was subject to the provisions of the 
Decision and of the Chairman's statement.  It ha d been explained that those texts would not be 
reproduced in the footnote but incorporated by be ing referred to within it.   Some delegations had  
expressed a preference for full incorporation of the relevant provisions of the Decision in the text of 
the TRIPS Agreement.  The approaches mentioned for the legal form of an amendment of this nature 
included the incorporation in the TRIPS Agreement of an Article 31 bis, or an annex, or a footnote to 
Article 31 referring to an anne x.  Many delegations had  indicated that if they were satisfied with the 
content of the amendment they might have greater flexibility with regard to legal form. 
87. Questions had been raised by a number of de legations about whether it would be legally 
possible to amend the TRIPS Agreement through the use of footnotes.  He recalled that he had made 
available the Secretariat's Legal Affairs Division's informal note on this subject.  At the open-ended 
informal meeting on 4 March 2004, some more questi ons had been directed to the Secretariat's Legal 
Affairs Division.  The Chairman had discussed thes e with the Secretariat which would prepare an 
addendum to the note to be circulated in due course.   He emphasized that there were limits to how 
much the Secretariat could provide in terms of opi nion, advice or input.  Ultimately, it was up to 
Members to resolve this issue in a manner they saw best. 
88. As regards timing , he said that quite a number of delegations had  expressed the view that it 
was more important to get the amendment right than to  rush it, and that it would be desirable to leave 
more time to learn from experience with the opera tion of the mechanism.  One idea had been to 
extend the time-frame by the amount of time that th e adoption of the Decision had been delayed, 
i.e. by nine months.  Others had not mentioned a new time-frame but had indicated that it should be 
sufficient for there to be a useful body of experien ce to learn from.  The view had also been expressed 
that it was important to meet the deadline a nd to make every serious effort to do so. 
89. The Chairman said that his consultations had revealed that there seemed to be significant 
differences among delegations in regard to the su bstantive content and the legal form that an 
amendment to replace the paragraph 6 Decisi on should have, although ma ny delegations had 
emphasized that they remained ready to consider altern ative solutions.  This seemed to indicate that it 
was unlikely that Members would be able to come to a conclusion on this matter at the present TRIPS 
Council meeting and that further work would be required.  He suggested that his successor hold 
further consultations before th e Council's June 2004 meeting. 
90. The Council so agreed. IP/C/M/43 
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 I. R
EVIEW UNDER PARAGRAPH 2 OF THE DECISION ON THE IMPLEMENTATION OF 
ARTICLE  66.2  OF THE TRIPS  AGREEMENT  
91. The Chairman recalled that, at its November m eeting, the Council had ta ken up its first annual 
review of developed country Memb ers' reports on their implementation of Article 66.2 of the TRIPS 
Agreement.  This had been done pursuant to para graph 2 of the decision on the "Implementation of 
Article 66.2 of the TRIPS Agreement".  As some of  the reports had been r eceived only shortly before 
the meeting and most of them were, at that point , available only in their original language, he had 
indicated that it was his intention to provide an opp ortunity at the present meeting for the Members of 
the Council to make further comments on the info rmation submitted for the November meeting.  
Furthermore, he informed the Council that, since its  meeting in November, a further report had been 
received from New Zealand (IP/C/W/412/Add.6). 
J. TECHNICAL COOPERATION AND CAPACITY -BUILDING  
(i) Annual Updates on Technical Cooperation Activities  
92. The Chairman recalled that the Council had taken up its annual re view of technical 
cooperation at its meeting in November 2003.  In preparation for this, developed country Members, 
intergovernmental organizations with an observer status in the Council and the WTO Secretariat had 
updated information on their technical cooperation ac tivities relevant to the implementation of the 
TRIPS Agreement.  As some of the information ha d been received only shortly before the meeting, 
and most of it had only been available in its or iginal language, he had indicated that it was his 
intention to provide an opportunity at the presen t meeting for the Members of the Council to make 
further comments on that information.  Since that  meeting, further reports had been received from 
New Zealand and Australia (IP/C/W/408/Add.6 and 7). 
(ii) Joint Initiative 
93. 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 about  the implementation of the Joint Initiative. 
94. The representative of the Secretariat said that , since the Council's meeting in November, the 
Secretariat had participated in two additional technical cooperation missions directed at least-
developed countries, one in Djibou ti and another in the Maldives.  He recalled that, at the Council's 
last meeting, he had referred to events planned in  Uganda, Ethiopia and Niger.  There had been some 
logistical delays in trying to get those events under way, but he hoped that they  could be carried out in 
the coming months. 
95. The Council took note of the information provided. 
K. INFORMATION ON RELEVANT DEVELOPMENTS ELSEWHERE IN THE WTO 
96. The Chairman recalled that, under this agenda ite m, information had usually been provided in 
relation to new accessions to the WTO and developm ents in the area of dispute settlement, and said 
that on this occasion he had no new deve lopments to report in these areas. 
L. OBSERVER STATUS FOR INTERNATIONAL INTERGOVERNMENTAL ORGANIZATIONS  
97. The Chairman said that the list of the 16 pendi ng requests for observer status in the TRIPS 
Council by other intergovernmental organizations wa s contained in document IP/C/W/52/Rev.10.  He 
recalled that the Council had discussed these pending re quests at its previous meetings, but had not  IP/C/M/43 
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 been able to reach consensus on any of them.  Given that the situation remained the same, he 
suggested that the Council agree to revert  to the matter at its next meeting. 
98. The Council so agreed. 
M. OTHER BUSINESS  
99. No items were taken up under other business. 
N. ELECTION OF CHAIRPERSON  
100. The Chairman said that at its meeting of 11 February 2004, the General Council had noted the 
consensus on the slate of names of chairpersons fo r WTO bodies.  On the basis of the understanding 
that had been reached, he proposed that the Council for TRIPS elect Mr. Joshua Law from Hong 
Kong, China as its Chairman for the coming year by acclamation. 
101. The Council so agreed. 
102. The newly elected Chairman paid tribute to the immense contribution by Ambassador Menon 
in chairing the Council over the previous year, including his efforts that had led to the adoption by the General Council, on 30 August 2003, of the important  decision on the "Implementation of Paragraph 
6 of the Doha Declaration on the TRIPS Agreement and Public Health".  He also thanked Members 
for their confidence in electing him to chair the Council for the coming year.  He noted that the 
Council had a full menu of important tasks ahead , including those mandated under the relevant 
provisions of the Doha Declaration and paragra ph 11 of the General Council decision on TRIPS and 
Public Health.  He looked forward to working closel y with all the delegations and the Secretariat and 
to having their full cooperation and support in taking  forward the various agenda items to meet the 
many challenges ahead. 
103.  The outgoing Chairman thanked all delega tions for their staunch support and close 
cooperation over the year.  It had been a challenging  but also an interesting and fruitful year for the 
Council.  Although it had succeeded in agreeing on the decision on TRIPS and Public Health, there was, as the discussion at the present meeting had shown, still much work ahead, especially on the 
amendment to the TRIPS Agreement.  Besides that  matter, there were still many more outstanding 
issues on the Council's agenda.  He wished his successo r the very best for his term as Chairman, and 
assured him of his full cooperation and assistance shoul d he need it in any way.  He also thanked the 
Intellectual Property Division for all the assistance that  it had rendered to him over the year, as well as 
many people working behind the scenes who had all contributed in one way or another to making it 
possible for the Council to have efficient meetings. 
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