RESTRICTED  
  
IP/C/M/71  
 
12 February 2013  
(13-0783)  Page: 1/60  
Council for Trade-Related Aspects of  
Intellectual Property Rights    
 
   
MINUTES OF MEETING 
HELD IN THE CENTRE WILLIAM RAPPARD ON 6-7 NOVEMBER 2012 
Chairperson: Ambassador Dacio Castillo (Honduras) 
 
 The present document contains the record of the discussion which took place during the Council for TRIPS meeting held on 6-7 November 2012. 
 
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Subjects discussed Page nos. 
 
1  NOTIFICATIONS UNDER PROVIS IONS OF THE AGREEMENT ......................................... 2  
2  REVIEWS OF NATIONAL IM PLEMENTING LE GISLATION ............................................... 3  
2.1  Follow-up to the review of  legislation of Maldives ............................................................ 3  
2.2  Follow-up to other re views already undertaken ............................................................... 4  
2.3  Arrangements for the review of the nati onal implementing legislation of Montenegro ............ 4  
2.4  Arrangements for the review of the nati onal implementing legislation of the Russian 
Federation .................................................................................................................... ... 4 
3  REVIEW OF THE PROVISIONS OF ARTICLE 27.3(B) ...................................................... 5  
4  RELATIONSHIP BETWEEN THE TRIPS AGREEMENT AND THE CONVENTION ON 
BIOLOGICAL DI VERSITY .................................................................................................. 5  
5  PROTECTION OF TRADITIONAL KNOWLEDGE AND FOLKLORE ...................................... 5  
6  REVIEW UNDER PARAGRAPH 8 OF THE DECISION ON THE IMPLEMENTATION 
OF PARAGRAPH 6 OF THE DOHA DECLARATION ON THE TRIPS AGREEMENT AND PUBLIC HE ALTH ............................................................................................................. 16
 
7  NON-VIOLATION AND SITUATION COMPLAINTS ........................................................ 22  
8  REVIEW OF THE IMPLEMENTATION OF THE TRIPS AGREEMENT UNDER 
ARTICLE 71.1 ................................................................................................................. 25 
9  REVIEW OF THE APPLICATION OF THE PROVISIONS OF THE SECTION ON 
GEOGRAPHICAL INDICATION S UNDER ARTI CLE 24. 2 .................................................... 25  
10  TENTH ANNUAL REVIEW UNDER PARAGRAPH 2 OF THE DECISION ON THE 
IMPLEMENTATION OF ARTICLE 66. 2 OF THE TRIPS AGREEMENT ................................... 26  
11  TECHNICAL CO-OPERATION AND CAPACITY BUILDING............................................ 31  IP/C/M/71 
 
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  12  LETTER FROM THE CHAIR OF THE GE NERAL COUNCIL CONCERNING WAYS TO 
IMPROVE THE TIMELINESS AND COMPLE TENESS OF NOTIFICATIONS AND 
OTHER INFORMATION FLOWS ........................................................................................ 38  
13  INTELLECTUAL PROPERTY  AND INNOVA TION .......................................................... 39  
14  INFORMATION ON RELE VANT DEVELOPMENTS ELSEWHERE IN THE WTO ................ 57  
14.1  Acce ssions ..............................................................................................................  57 
14.2  Disputes ................................................................................................................. 57 
15  OBSERVER STATUS FOR INTERNATIONAL INTERGOVERNMENTAL 
ORGANIZATI ONS ........................................................................................................... 57  
16  ANNUAL REPORT ...................................................................................................... 58  
17  OTHER BU SINESS ..................................................................................................... 58  
17.1  Dates of the Counc il's meetings  in 2013 ...................................................................... 58 
17.2  Invitations to  ARIPO an d OAPI ................................................................................... 58 
17.3  Compliance with the TRIPS Ag reement ....................................................................... 58 
17.4  Extension of the transition al period under  Article 66.1 ................................................... 59 
17.5  Event on "TRIPS/CBD and Geographical In dications" ..................................................... 59 
 
1  NOTIFICATIONS UNDER PROVISIONS OF THE AGREEMENT 
1.  The Chairman said that, since the Council's meeting in June 2012, the Russian Federation, a 
new Member of the WTO, had made its initial notification of its laws and regulations. The list of 
notified laws and regulations was being circulated in document IP/N/1/RUS/1, and the texts of 
these laws and regulations were being made available in sub-series of documents in electronic 
form on the Documents Online database. Its responses to the Checklist of Issues of Enforcement had been circulated in document IP/N/6/RUS/1. The Russian Federation had also made two 
notifications relating to Article 1.3, which ha d been circulated in document IP/N/2/RUS/1. 
2.  In addition, the Council had received a number of updates to earlier notifications of laws and 
regulations notified under Article 63.2. of the Agreement: 
 Norway had notified its Designs, Patents Act and Trademarks Acts and related 
regulations; 
 The United States had notified various laws and regulations relating to patents, 
trademarks, copyright and border enforcement; 
 Korea had notified a Framework Act on Intellectual Property together with an 
Enforcement Decree of that Act; it had also notified an updated list of its main dedicated laws and regulations related to the TRIPS Agreement; 
 Colombia had notified a law implementing its commitments under the Trade 
Promotion Agreement between Colombia and the United States and its Amending Protocol; and a number of amendments to decrees. It had also notified a law 
approving the Protocol Relating to the Madrid Agreement Concerning the International 
Registration of Marks; on 29 May 2012, Colombia deposited its instrument of accession with WIPO; consequently, the treaty  will enter into force for Colombia on 29 
August 2012; 
 Uruguay had notified changes to a number of administrative provisions of its IP 
legislation, and its responses to the Checklist of Issues on Enforcement; 
 Chinese Taipei had notified its Trademark Act 2011 and related standards for 
trademarks fees; as well as the Enforcement Rules of the Trademark Act; IP/C/M/71 
 
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   Cuba had notified three Decree-Laws on Inventions and Registered Designs, on the 
protection of plant varieties, and on the La yout-Design of Integrated Circuits; as well 
as a Resolution on Rules on Biological Diversity, and a Resolution on Cuba's national industrial property system; 
 Mexico had notified several updates to its industrial property legislation, as well as a 
number of declarations relating to certain geographical indications; 
 Nicaragua had notified a law on trademarks and geographical indications; decrees on 
its accession to the WIPO Copyright Trea ty, WIPO Performances and Phonograms 
Treaty, the International Convention on Plant Variety Protection; the Budapest Treaty on Microorganisms; and the Patent Co-operation Treaty; as well as a Decree on the Promotion and Protection of IPRs in Nicaragua. In addition, it had updated its 
responses to the Checklist of Issues on Enforcement; and 
 Australia had notified its Intellectual Property Laws Amendment (Raising the Bar) Act 
2012; certain amendments to its laws and regulations on geographical indications; 
Trademarks Amendment (Tobacco Plain Packaging) Act 2011; as well as Tobacco Plain 
Packaging Act 2011 and related regulations. 
These notifications of laws and regulations were being made available in the IP/N/1- series of 
documents, and the actual texts of laws in sub- series of documents in electronic form on the 
Documents Online database. Uruguay's and Nicaragua's responses to the Checklist of Issues on Enforcement were being circulated in the IP/N/6- series of documents. 
3.  As regards notifications of contact points under Article 69 for the exchange of information and 
cooperation on trade in infringing goods, since our meeting in June, the Russian Federation had 
notified its contact point. In addition, an update to a contact point notified earlier had been received from Nicaragua. The information on th e Members' transparency toolkit page had been 
updated accordingly. 
4.  The Chairman urged those Members whose initial notifications of laws and regulations 
remained incomplete to submit the outstanding material without delay. Equally, he urged other 
Members to fulfil their obligation under the TRIPS Agreement to notify any subsequent 
amendments of their laws and regulations without de lay after their entry into force. He especially 
encouraged Members to notify changes made to their laws and/or regulations to implement the 
Decision on TRIPS and public health. 
5.  The Council took note of the information provided. 
2  REVIEWS OF NATIONAL IMPLEMENTING LEGISLATION 
2.1  Follow-up to the review of legislation of Maldives 
6.  The Chairman recalled that, at its meeting in June 2012, the Council had initiated the review of 
Maldives' implementing legislation. At that review, the United States had indicated that it had only 
recently provided questions to Maldives. Those questions had since then been circulated in 
document IP/C/W/574. The delegation of Maldives had just provided responses to these questions, 
which were available as an advance copy of document IP/Q/MDV/1. 
7.  The representative of Maldives thanked th e US delegation for its interest and questions 
regarding the copyright act of Maldives. She introduced the responses circulated in document 
IP/Q/MDV/1, and said that some minor errors in the advance copy of that document would be 
corrected in the final version. 
8.  The representative of the United States thanke d the delegation of Maldives for the responses to 
its questions, which reflected thoughtful cons ideration for which he was extremely grateful. 
9.  The Chairman said that, since the responses had just been made available as advance copies 
and, so far, were not available in all WTO languages, it was his intention to provide Members more IP/C/M/71 
 
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  time to study the responses. Therefore, he suggest ed that the Council revert to the matter at its 
next meeting. 
10.  The Council took note of the statements made and so agreed. 
2.2  Follow-up to other reviews already undertaken 
11.  The Chairman said that, as regards the review s of national implementing legislation that had 
been initiated at the Council's meetings since April 2001, the reviews of three Members remained 
on the Council's agenda, namely those of Cuba; Fiji; and Saint Kitts and Nevis.  
12.  Since the Council's meeting in June 2012, Cuba had notified three Decree-Laws on Inventions 
and Registered Designs, on the protection of plant varieties, and on the Layout-Design of 
Integrated Circuits; as well as a Resolution on Rules on Biological Diversity, and a Resolution on Cuba's national industrial property system. In addition, it had provided responses to questions 
posed to it in connection with its review. These responses had been circulated in IP/Q/CUB/1. 
Some of the replies replaced the responses that Cuba had provided earlier, which had been circulated in document IP/C/W/321 and addenda. 
13.  The representative of Cuba provided an introd uctory overview of Cuba's IP legislation and the 
changes made to it. The statement is being circulated in document IP/Q/CUB/1/Add.1. 
14.  The Chairman said that, since the responses had been circulated just before the meeting and, 
so far, were not available in all WTO languages, it was his intention to provide Members more time 
to study the responses. Therefore, he suggested that the Council revert to the matter at its next meeting. 
15.  The Council took note of the statements made and so agreed. 
16.  As regards the follow-up to the reviews of Fi ji; and Saint Kitts and Nevis, the Chairman urged 
the delegations concerned to provide the outstanding material as soon as possible, so as to allow the Council to complete the follow-up to these revi ews. He suggested that the Council revert to the 
matter at its next meeting. 
17.  The Council so agreed. 
2.3  Arrangements for the review of the nati onal implementing legislation of Montenegro 
18.  The Chairman recalled that, at its meeting in June 2012, he had informed the Council that 
Montenegro had become a new Member of the WTO,  and that it had agreed to apply the TRIPS 
Agreement no later than the date of its accession to the WTO, without recourse to any transitional 
period. As requested by the Council, the Secretariat had been in contact with Montenegro 
concerning the Council's notification procedures. As the Council had not yet received Montenegro's 
initial notification of its TRIPS implementation, he suggested that the Council revert to the arrangements for the review of Montenegro's nation al implementing legislation at its next meeting. 
19.  The Council so agreed. 
2.4  Arrangements for the review of the nati onal implementing legislation of the Russian 
Federation 
20.  The Chairman said that the Russian Federation, a new Member of the WTO, had agreed to 
apply fully the provisions of the TRIPS Agreement from the date of accession to the WTO, including 
provisions for enforcement, without recourse to any transitional period. As he had mentioned under item 1, the Russian Federation had already made its initial notification of its TRIPS 
implementing laws and regulations. 
21.  In scheduling the review of the implementi ng legislation of the Russian Federation, the 
Council should reserve enough time for other Memb ers to prepare questions to be posed to it in 
the context of this review. It wo uld also need to ensure that the Russian Federation had sufficient 
time to prepare its responses. Accordingly, he suggested that the Council schedule the review for IP/C/M/71 
 
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  its second meeting in 2013, which had tentatively been pencilled in for 11-12 June. In accordance 
with the standard procedures for the review, he propose that the Council set the following target 
dates for the submission of questions and answers in that review: 
 Questions should normally be submitted to the Russian Federation, with a copy to the 
Secretariat, 10 weeks before the meetin g in which the review takes place; 
accordingly, he suggested a target date of 2 April 2013; 
 Responses to questions posed within that deadline should normally be submitted four 
weeks before the meeting; accordingly, he suggested a target date of 14 May 2013. 
22.  The Council so agreed. 
3  REVIEW OF THE PROVISIONS OF ARTICLE 27.3(B) 4  RELATIONSHIP BETWEEN THE TRIPS AGREEMENT AND THE CONVENTION ON 
BIOLOGICAL DIVERSITY 
5  PROTECTION OF TRADITIONAL KNOWLEDGE AND FOLKLORE 23.  The Chairman suggested that the Council cont inue to discuss the three agenda items together 
on the basis of contributions by Members as had been the practice at past meetings. He recalled 
that, as requested by the Council at its meeting in June 2012, he had continued his predecessor's consultations on the suggestions that the Secretariat of the Convention on Biological Diversity 
(CBD) be invited to brief the Council on the Nagoya Protocol on Access to Genetic Resources and 
the Fair and Equitable Sharing of Benefits Arising from their Utilization that had been adopted at the tenth meeting of the Conference of the Part ies (COP) to the CBD held in Nagoya, Japan in 
October 2010. He said that, unfortunately, he was not in a position to report any new 
developments in delegations' positions on that matter. 
24.  The representative of the Plurinational State of  Bolivia said that the review of Article 27.3(b) 
was part of the mandate of the Doha Work Programme under paragraph 19 of the Ministerial 
Declaration. It was also an outstanding implemen tation issue, and paragraph 12 of the Ministerial 
Declaration mentioned the adoption of a Decision to address implementation related concerns (WT/MIN(01)/17).  
25.  In the more than 15 years following the adoption of Article 27.3(b), Members had witnessed 
the impetus that that Article had given to the race to patent genetic resources, plants, and life forms and parts thereof, a trend that was increasingly worrying given its ethical and moral implications. The adoption of that Article provided Members the possibility to grant patents on 
plants and animals as well as biological proce sses and established the obligation to grant patents 
for microorganisms and microbiological and non-biological processes, thus promoting a new phase in the extension of private appropriation of nature in a way that had never been seen before. The 
result had been a proliferation of patents and patent applications involving a wide range of life 
forms, including human genes or parts thereof such as proteins, gene sequences, cells, cell lines and tissues. 
26.  The patentability of life forms promoted by Ar ticle 27.3(b) raised a series of ethical and moral 
concerns for many cultures and populations around the world. The extension of patents to life forms was based on the idea that life forms and parts thereof were human inventions and, as such, patentable. That concept promoted the comme rcialization of life and nature and reduced 
their value to nothing more than a mercantile and commercial vision. That vision was far removed 
from the culture, values and beliefs of many peoples and societies, for whom life was something sacred and special that could not be considered a human invention or treated as just another 
commodity. Those reasons, together with others, ha d led Bolivia to propose that Article 27.3(b) be 
revised and amended to prohibit the patentin g of all life forms and parts thereof.  
27.  The representative of Indonesia said that an International Symposium on Ensuring Protection 
for Genetic Resources and Traditional Knowledge and Folklore (GRTKF) through the Creation of 
Database had been held in Bali on 26 June 2012. The Symposium had been attended by government officials, industry representatives, students, experts as well as representatives from IP/C/M/71 
 
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  the United States, India, Libya, Ecuador, Peru, WIPO, South Centre, Traditional Knowledge Digital 
Library of India, and senior officials from the In donesian ministries present as resource persons. 
The Symposium had aimed at educating the Indonesian community on the importance of the protection of GRTKF. It had stressed the importance  of public participation for the protection of 
GRTKF. The establishment of databases would need public support and participation as they were 
the holders of such property. The government should relentlessly conduct public awareness campaigns to improve the public participation. As a follow-up of the Symposium, several 
intergovernmental meetings had been held in Ja karta to discuss, among others, the establishment 
of national databases.  
28.  The representative of Ecuador said that th e debate on the relationship between the TRIPS 
Agreement and the CBD had been on-going for the pa st 15 years. As a result of those exchanges, 
around 13 documents had been circulated which highlighted the existence of the problem of 
biopiracy and misappropriation (IP/C/W/403, IP/C/W/420, IP/C/W/438, IP/C/W/442, IP/C/W/443, IP/C/W/447, IP/C/W/458, IP/C/W/459, IP/C/ 474, IP/C/W/475, IP/C/W/469, TN/C/W/52 and 
TN/C/W/59), i.e. the absence of an effective system of prevention that fostered the proper 
protection of traditional knowledge and of biodiver sity, whether or not related to such knowledge, 
and ways of resolving that situation. That had led Members to emphasize the importance of 
establishing a legally binding universal commitment to disclose the source and/or country of origin 
of genetic resources and/or associated traditional knowledge. 
29.  Both the CBD and international law recognized the sovereign right of States to their biological 
resources and to regulate access to such resour ces. That was therefore a binding obligation of 
universal application, i.e. erga omnes . The requirement to disclose the source and/or country of 
origin of genetic resources and associated traditional knowledge would make it possible to identify situations in which those resources had been used outside the jurisdictions in which they 
originated and, in turn, verified the legality of access thereto. Furthermore, disclosure of source 
would also help the jurisdiction or country of origin to determine whether or not patentability requirements had been met, in particular those of novelty and inventive step, and fundamentally, 
to check that the principles of "prior informed consent" and "fair and equitable benefit sharing" had 
been observed. 
30.  There was a need for legal instruments, which not only enhanced transparency in relation to 
the management, use and exploitation of genetic resources and associated traditional knowledge, 
but which also fostered the appropriate, effective and proportional observance of CBD principles by 
current, future or potential users of those resources and/or traditional knowledge. For these reasons, and in accordance with document TN/C/W/59, consideration should be given to 
establishing legal modalities to facilitate effective action against non-compliance with disclosure, 
prior informed consent, and fair benefit sharing requirements, e.g.: (i) ex ante : the non-
processing of patent applications where disclosure had not occurred; (ii) ex post : sanctions, such 
as administrative or criminal sanctions, penalties, appropriate compensation for damages, and the 
revocation of patents. 
31.  He said that it was particularly important to establish minimum legal mechanisms that 
ensured the adequate and effective protection, at international level, of Ecuador's biological 
resources and associated traditional knowledge. Any solution arising from the discussion of that 
important issue should therefore include the el ements described above. Accordingly, Ecuador 
believed that, in order to stimulate discussion on  the relationship between the TRIPS Agreement 
and the CBD, it would be appropriate to review the elements presented by Members in the past. 
To that end, he suggested that the WTO Secretar iat prepare a compilation and factual summary of 
the arguments put forward both in the discussions in the Council and in the communications 
submitted by Members on those three agenda items. 
32.  The representative of Cuba said that he r delegation would like to share other Members' 
national experiences regarding the implementation  of Article 27.3(b) so as to have a better 
understanding of the implementation of the flexib ilities provided therein and the problems facing 
developing countries. She said that developing countries should incorporate those flexibilities in 
their national legislation and policy so as to safeguard their interest in public health, food security and other objectives. 
33.  The representative of South Africa said th at there were three fundamental conflicts between 
the CBD and the TRIPS Agreement in terms of their respective spirit and the objectives. Firstly, IP/C/M/71 
 
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  Article 3 of the CBD provided that states had sovereign rights over their biological resources while 
the TRIPS Agreement overlooked states' sovereig nty but recognized private IPRs over those 
resources. Secondly, the CBD provided states with an opportunity to demand sharing of the benefits arising from the commercial use of biological resources while the TRIPS Agreement 
negated that legal authority. Thirdly, the CBD wa s aimed at reducing biopiracy by requiring prior 
informed consent whereas the TRIPS Agreement di d not have such a requirement, which meant 
that patent applications could be submitted over biological resources or traditional knowledge of 
certain local communities in any other countries. The TRIPS Agreement recognized patent rights 
on the basis of novelty, which did not take into account traditional knowledge and cultural practices. There was a need to avoid erroneously granted patents for inventions that involved the use of genetic resources and related traditional knowledge. There was also a need to secure 
compliance with national access and benefit sharing regimes. It was clear that the implementation 
of the TRIPS Agreement might prevent the preserva tion of biological resources and traditional 
knowledge.  
34.  Referring to Article 16.5 of the CBD, he said that what could aid in reconciling the two 
agreements was a proper legal review of both agreements with the aim of making amendments 
where necessary to ensure mutually supportive application. Under the review of Article 27.3(b) of 
the TRIPS Agreement, amendments could be made to incorporate the CBD objectives into the 
TRIPS Agreement in order to preserve biodiversity , prevent biopiracy and include the protection of 
local community rights in accordance with the spirit and purport of the CBD. 
35.  The representative of India said that his delegation attached great importance to the three 
agenda items. The Indian Government had been privileged to host the COP 11 to the CBD in 
Hyderabad in October 2012, which was the first such conference since the launch of the United Nations International Year of Biodiversity in 2010. The COP 11 had also marked the 20th 
Anniversary of the Rio Earth Summit in Rio de Janeiro, where the world had come together to 
address environmental issues.  
36.  India's approach to protecting and promoting biodiversity had been guided by the belief that 
all three objectives of the CBD, namely conservation, sustainable use and sharing of benefits from 
the utilization of genetic resources should receive adequate and equal focus. That approach was the basis of India's Biological Diversity Act of 2002. The 2008 National Biodiversity Action Plan 
further identified specific action points by vari ous governmental agencies. Biodiversity represented 
a cultural and ecological heritage developed over  generations and upon which collective survival 
depended. Biodiversity-based livelihoods options formed the basis of rural survival in many parts of the world. Living at the periphery of subsis tence, the poor were the most at risk from 
biodiversity loss. Since there was a direct corre lation between protection of biodiversity and 
eradication of poverty, India's efforts had focu sed on biodiversity conservation by promoting 
livelihoods, particularly in the rural areas. Participatory approaches that encouraged and 
incentivized the involvement of local communities  were a key element in India's conservation 
efforts. India was therefore convinced that subjecti ng the heritage of biodiversity to the current 
legal regime of commercial monopoly rights under the TRIPS Agreement would destroy the conditions for its conservation and sustainable use, especially by the communities and thereby 
destroy society's access to diverse food and medicine.  
37.  Members' efforts would remain incomplete if they did not work towards building a mutually 
supportive relationship between the TRIPS Agreem ent and the principles enshrined in the CBD. 
The concrete proposals in documents TN/C/W/52 and TN/C/W/59 were very important in that 
regard. Document TN/C/W59 captured the developmen ts in the past including the Nagoya Protocol 
which had been signed by 192 countries, and cont ained a significant implementing legislation for 
prior informed consent and access and benefit sharing. It was unfortunate that the TRIPS 
Agreement continued to ignore important provisions  of Article 15 of the CBD. The contradiction not 
only obstructed the proper implementation of the CBD, but also caused an imbalance in the TRIPS 
Agreement. The relationship between the TR IPS Agreement and the CBD was a critical 
implementation issue for developing countries and a positive outcome on that issue would be an 
important deliverable for developing countries. He quoted the excerpts from the remarks made by Prime Minister of India, Mr Mahmoud Singh at th e inauguration of the High Level Segment of the 
COP11: "Humankind should understand the importance  of preserving biodiversity. The diversity of 
life forms on earth is the culmination of millions of  years of the productive genius of nature. It is 
nature's insurance against extreme events that may disturb the delicate balance of life on this 
planet."  IP/C/M/71 
 
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  38.  In conclusion, he said that Members needed to work together and act before a catastrophe 
was upon them. India was committed to working with all the parties to reach a compromise that would secure the future and provide an ecological and economic space for everyone and sustainable growth for all the peoples. 
39.  The representative of Brazil said that his delegation's position on the TRIPS-CBD issue was 
well-known. He supported the amendment of the TRIPS Agreement so as to introduce a 
mandatory disclosure requirement of the origin of genetic resources in patent applications. The 
fact that the talks under the Doha Development Agenda seemed to be making little progress did 
not mean that Members had forgotten the importan ce they had attached to addressing properly 
misappropriation of genetic resources and tradit ional knowledge. A disclosure requirement would 
allow mega-biodiverse developing countries to benefit from their own genetic resources and 
associated traditional knowledge. He said that the co-sponsors of document TN/C/W/52 were 
organizing a round table seminar on 7 November 2012. 
40.  At the WIPO General Assemblies of 2012, WIPO member States had decided to update the 
work programme of the Intergovernmental Committee on Intellectual Property and Genetic 
Resources, Traditional Knowledge and Folklore (IGC) and that three sessions of the IGC would be held in 2013 in order to make progress on the working texts for an international legal instrument 
or instruments to ensure protection of genetic resources, traditional knowledge and traditional 
cultural expressions. The last session would incl ude three additional working days in order to 
review, take stock and make recommendations to the next General Assembly. Brazil favoured the 
adoption of a legally binding instrument or instruments as the outcome of the negotiations in the 
IGC. The international IP framework in the field of patents, trademarks and copyrights gave right 
holders a high level of protection and genetic resources, traditional knowledge and traditional cultural expressions should enjoy the same level of protection under appropriate international 
instruments. An international instrument or inst ruments in that matter should cover essentially 
two objectives: to make the IP system supportive of international provisions on access and benefit sharing, consolidating it as a checkpoint of compliance with access and benefit-sharing 
requirements under the Nagoya Protocol, and to en sure that patent examination took due account 
of prior art and that the requirements of novelty and inventiveness were duly taken into account and therefore erroneous patents would be prevente d from being granted. That subject had been 
discussed for more than a decade. Brazil welcomed the decision of the General Assemblies that it 
was now time to effectively make progress in the negotiations. 
41.  The representative of Colombia said that many studies had been carried out on the TRIPS-
CBD issue. Given the existing relationship between the two agreements, Members needed to make 
progress on that issue. Referring to the statemen t made by Brazil, she said that her delegation 
supported the disclosure proposal. Nevertheless, Members should discuss all elements, which would ensure IP mechanisms to help megadiverse countries address the biopiracy problem. 
Members should strengthen patent systems, especial ly the capacity of patent examiners, to avoid 
erroneously granted patents. Members should also assure researchers and inventors legal certainty of the patent system. Prior informed consent and benefit sharing were essential for 
inventors to obtain IP protection for inventions based on genetic-resources. The objective of the 
disclosure requirement was to regulate legitimate access and use of genetic resources in the area 
of biotechnology.  
42.  IP systems were a mechanism which sought to incentivize inventions and reward inventors. 
Inventions based on genetic resources should meet the requirements of legitimate access and use 
of those resources. The prior informed consent and benefit-sharing requirements would help the 
country of origin with its conservation policy and ensure the country of origin to be able to share 
the benefit arising from the use of its genetic resources.  
43.  The representative of China said that her delegation's position remained unchanged. A 
number of patents were closely related to the utilization of genetic resources and/or associated 
traditional knowledge. The TRIPS Agreement, the CBD and the Nagoya Protocol should operate in 
a mutually supportive manner. A measure should be introduced in the patent system to make it 
supportive of the provisions of the CBD and the Nagoya Protocol. As a co-sponsor of documents TN/C/W/52 and TN/C/W/59, China supported the amendment of the TRIPS Agreement to 
incorporate mandatory disclosure requirements in patent applications to ensure that rights related 
to genetic resources and traditional knowledge were safeguarded within the patent system. The disclosure requirements would contribute to enhancing the transparency of the utilization of IP/C/M/71 
 
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  genetic resources and traditional knowledge, while helping to advance legal certainty and 
ultimately achieve Members' goals.  
44.  Furthermore, the disclosure requirements were consistent with the transparency principle 
established in the multilateral trading system. Her delegation did not consider it burdensome for 
patent applicants to fill in the form with the information of prior informed consent and access to 
benefit sharing, as indicated in document TN/C/W/59, considering the legitimate objectives pursued by the system. She said that a Chinese representative would present concrete examples 
on the implementation of the disclosure requirem ent in China's patent system in the seminar 
organized the cosponsors of document TN/C/W/52.  
45.  She said that the contractual arrangements proposed by some Members were insufficient to 
ensure the protection of genetic resources as such arrangements depended on the voluntary 
behaviour and did not place restrictions on third parties. Compared with the large quantity of 
genetic resources available in the world, information contained in databases and likely to be accessible to patent examiners prior to the granting of a patent would be limited. The 
responsibility to respect a sovereign right over genetic resources should rest with the legal and 
natural persons who accessed or used the genetic resources and traditional knowledge.  
46.  She welcomed and valued the on-going work in the WIPO IGC, but indicated that the work in 
the IGC should not prevent Members from seeking solutions in the WTO. In accordance with the 
mandate given by the Ministers, Members should make appropriate and effective measures in patent applications to prevent misappropriation of genetic resources and erroneous patents. She encouraged Members to continue discussions and negotiations on IP issues as identified in the 
work programme of the Doha Round. 
47.  The representative of Bangladesh did not support the patenting of life forms as per its 
domestic laws and moral and ethical grounds. States had sovereign rights over traditional 
knowledge and genetic resources. Misappropriation of genetic resources and traditional knowledge 
was a matter of concern to developing countries and LDCs. It was imperative to safeguard genetic resources and traditional knowledge and folklore through effective disclosure requirements. The 
TRIPS-CBD issue was a critical implementation issue for all the developing countries and LDCs. 
Both the TRIPS Agreement and the CBD and the Nagoya Protocol broadly upheld innovation for the development of the people. The TRIPS Agreemen t and the CBD were complementary to each 
other. The CBD provided that states had sovereign rights over their genetic resources. It was 
normal for a patent applicant to disclose the source of genetic resources and traditional knowledge 
if it was not the right owner of the resource. The disclosure requirement was consistent with the transparency principle established in the multil ateral trading system. The disclosure requirement 
would help to reduce the number of erroneous patents and biopiracy, and also ensure sharing of 
benefits to the rightful owners of the resources.  The mandate provided for in paragraph 19 of the 
Doha Declaration and reinforced in subsequent ministerial declarations should be implemented in 
an early and constructive manner. 
48.  The representative of Egypt supported the statements made by Ecuador, South Africa, India, 
Brazil and China. He expressed his delegation's concern over the lack of progress on the TRIPS-
CBD issue. The Council needed to make progre ss and dispel all the prevailing doubts about 
inconsistencies between the TRIPS Agreement and th e CBD. Accordingly, a credible and effective 
process in the Council to engage and sustain the momentum should be launched so as to allow Members to make substantive progress on that issue. As an initial step in that regard, he 
supported the proposal made by Ecuador to requ est the Secretariat to prepare summary noted on 
the three agenda items and to present to Members in  a briefing session to be held before the next 
meeting of the Council in 2013.  
49.  The representative of Pakistan said that, as a co-sponsor of document TN/C/W/52, his 
delegation endorsed the statements made by othe r co-sponsors. He requested the Secretariat to 
prepare a compilation document on the TRIPS-CBD issue as proposed by Ecuador. 
50.  The representative of Peru said that the Council was dealing with utmost important items. 
Peru had been pushing for an amendment to the TRIPS Agreement that would bring it into line 
with the provisions of the CBD providing Members, at the international level, with an instrument that would establish firm rules with which to fight against biopiracy. He reiterated that a IP/C/M/71 
 
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  requirement for multilateral and mandatory disclosure would be the most efficient way to address 
the international problem of misappropriation of genetic resources and traditional knowledge, as it would allow all countries to identify the country supplying the biological resource by requiring patent applicants to disclose the country of origin as well as evidence of compliance with prior 
informed consent and benefit sharing. That conviction, in addition to the need to improve the 
system to prevent biopiracy and the misuse of the system to the detriment of the developing 
countries, had prompted Peru not only to co-sponsor, with some 110 Members, document 
TN/C/W/52, but also to submit, together with a considerable number of delegations, document 
TN/C/W/59 aimed at enhancing the relationship  between the TRIPS Agreement and the CBD. 
51.  In that proposal, the co-sponsors called for the inclusion of an Article 29bis in the TRIPS 
Agreement which would seek to establish a mu tually supportive relationship between that 
Agreement and the CBD by incorporating the disclos ure of origin requirement as well as evidence 
of prior informed consent and benefit sharing in patent applications involving the use of genetic resources and/or associated traditional knowledge. This would provide a platform to facilitate 
compliance with the provisions of the CBD by helping to prevent biopiracy through the patent 
system and by ensuring adequate compatibility and linkage between the TRIPS Agreement and the 
CBD. 
52.  He said that Peru was seeking, through that proposal, to protect access to or use of its genetic 
resources, ensuring that they were used sustainably and to the benefit of all Peruvians and particularly the indigenous communities. Inclusion of the disclosure of origin requirement would ensure recognition of the legitimate rights of pe oples over their genetic resources, thereby adding 
to their development potential. 
53.  A successful conclusion to the Doha Round should have results in that area. Peru was fully 
convinced of the importance of the IP system as a tool for the economic, social and cultural 
development of countries, and it was precisely because of that conviction, added to the 
development mandate of the Doha Round, that Peru attached such importance to that issue as one of the outstanding implementation related issues mentioned in paragraph 12 of the Doha 
Declaration. 
54.  Only a balanced result that dealt with the problem of biopiracy would enable Members to 
establish a proper balance in the patent system and in the xxx intellectual property system in 
general for the benefit of all, particularly the local and indigenous communities of developing 
countries. 
55.  He further said that, as one of 17 megadiverse countries, Peru appreciated the agreement 
adopted in the framework of the WIPO General Assemblies, held Geneva from 1 to 9 October 
2012, as regards the work of the WIPO IGC. Biologic al diversity was one of the main pillars of the 
Peruvian economy. Some 99% of its fishing activities depended on hydrobiological resources, 65% of its agricultural production was based on native  genetic resources, 95% of its livestock farming 
used native natural pastures, and 99% of its forestry industry used native woodland and species. 
Moreover, biological diversity was an important so urce of direct employment and livelihood for a 
large part of Peru's population and was of vital importance to culture, science and technology; and 
it provided essential environmental services in the areas of soil fertility, remediation of air pollution 
and supply of water to the country's territory as well as to the planet as a whole. Peru was 
therefore confident that the decision of the Member  States to hold three IGC sessions during 2013 
prior to the General Assemblies of that year wo uld contribute to the negotiation of a binding 
instrument in that area. That decision, coupled with the informal consultations to be conducted by 
the Chairman of the above mentioned Committee, Ambassador Wayne McCook, would provide the necessary impetus to ensure that the negotiation of the texts would be completed in the shortest 
possible time. 
56.  Peru was fully committed to that roadmap that had been adopted by Members, which was in 
line with its national priorities, and it was committed to the negotiations aimed at achieving a binding agreement that would guarantee effective pr otection of traditional knowledge, traditional 
cultural expressions /folklore, and genetic resources. That was a priority for Peru. 
57.  The representative of Australia said that his delegation remained strongly interested and 
engaged on genetic resources and traditional knowledge issues. Australia was an island continent IP/C/M/71 
 
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  with diverse biological resources and a unique and vibrant indigenous culture. Australia sought to 
protect genetic resources and traditional knowledge of its indigenous people while retaining legal certainty in the IP system to encourage innovation and investment in goods and services which were directly based on genetic resources and traditional knowledge. Australia considered the 
TRIPS Agreement and the CBD were consistent, and Australia implemented fully its obligations 
under both agreements in a mutually supportive way. Australia had a domestic access and benefit-sharing framework which implemented its obligations under the CBD. Australia was a signatory to 
the Nagoya Protocol, and the Australian Government was currently undertaking internal processes 
to consider its ratification. 
58.  He welcomed the recent progress towards an international legal instrument or instruments in 
the WIPO IGC, including the recent decision by the WIPO General Assemblies to continue an 
intensive work program for the IGC and looked forward to the consideration of progress at the 
2013 General Assemblies. His delegation continued to believe that WIPO was best placed to consider the complex IP issues relating to genetic resources and traditional knowledge and would 
continue his delegation's active engagement.  
59.  With regard to the proposal by Ecuador,  he did not see any problems with having a 
compilation along the line of the Secretariat's note on non-violation and situation complaints.  
60.  The representative of Cuba said that a larg e group of Members had expressed their firm belief 
in the need to amend Article 29 of the TRIPS Agreem ent. It would appear that the main element of 
substance considered by Members that disagreed  with that amendment was the alleged burden 
that would have to be assumed by applicants. It  had also been argued that the amendment would 
create legal uncertainty for applicants. In Cuba's opinion, one element that had become crucial, in 
view of the experience acquired by a significant number of Members through efforts to prevent the 
granting of erroneous patents, was the mandatory disclosure of the country of origin and source of 
genetic resources. In no way would that be burd ensome for applicants, who had that information 
and only needed to provide it. On the contrary, that requirement would help to enhance legal certainty, confidence and the credibility of the patent system. 
61.  In light of the sovereign right of States over their genetic resources, not certifying the 
legitimacy of access to a genetic resource used in an invention through prior informed consent rendered the potential holder unable or ineligible to apply for a patent or plant variety right. A patent right obtained by someone who was unable to request it was therefore questionable given 
the coherence that must be maintained between access, patent and plant breeders' right regimes. 
62.  Consequently, the real or potential patent rights must be revoked or suspended until 
legitimacy of access and the holder's eligibility to those rights was proven. On that understanding, 
it did not seem appropriate to separate that subject matter into two parts: erroneous patents and 
access to genetic resources and associated traditional knowledge as if both aspects were separable, as was suggested by some Members. In Cuba's opinion, until that understanding had 
been multilateralized through the amendment of th e Agreement, it could not be claimed that the 
TRIPS Agreement and the CBD were applied in a mutually supportive way. 
63.  A positive outcome could not be achieved by continuing to hold the same discussions as those 
of the past ten years in order to establish the n eed for a solution in the terms expressed. Members 
needed to show constructive engagement in the Council, which they had sadly not been able to do 
by justifying the unsuitability of the solution on the basis of the viability and effectiveness of other 
alternative approaches such as databases and contractual arrangements. It was true that 
databases, while costly, might be useful for obtaining certain information on genetic resources and 
associated traditional knowledge, provided that confidentiality was ensured. Without confidentiality, they would aggravate matters, facilitating the non-authorized and gratuitous use of 
traditional knowledge and even genetic resources. 
64.  She said that the contractual approach did not work when the genetic resources could be 
provided by different suppliers, especially when contracts depended on contractual will and it was not possible to check whether the interests negotiated were being taken into account. Nor did it 
resolve the issue of proof of the exercising of  the sovereign right of States. However, the 
obligation that patents shall be available and patent rights enjoyable without discrimination as to the field of technology must also be subject to additional requirements, such as those established IP/C/M/71 
 
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  in certain circumstances for inventions consisting of biological materials or those introduced to 
ensure that the objective of reproduction by th ird parties might be achieved, even when the end 
purposes were different. The balance between the rights of States and the rights of potential owners of those inventions must not shift in favour of individuals or privilege them. In Cuba's 
opinion, that bias must not be accepted. It facilitated the circumvention of the obligation to respect 
the sovereignty of States where rules on that obligation were non-existent or ineffective in other Members. 
65.  Furthermore, so-called biopiracy must be foug ht in the same way as piracy and counterfeiting, 
activities which some developed Members had sought to combat by making available considerable resources and introducing rules on enforcement that went beyond the TRIPS Agreement obligations. Tools must be established to monitor compliance with the provisions on access and 
benefit sharing. Such tools must be as coherent  as possible for all Members committed to the CBD. 
On the basis of those considerations, Cuba continued to support the need for a multilateral obligation in respect of the requirements to be met by applicants: disclosure of country and source 
of origin of genetic resources and associated traditional knowledge, proof of prior informed consent 
and, as part of the same, benefit sharing. Cuba was also in favour of the annulment ex officio or at 
the request of a party of patents obtained on the ba sis of false, inaccurate or omitted elements or 
granted in violation of existing provisions, which included proof of respect for the sovereignty of 
States over their genetic resources. 
66.  The representative of New Zealand agreed with the views expressed by many Members over 
the importance of preventing the misappropriation of genetic resources and associated traditional 
knowledge. Her delegation had a systemic intere st in preventing the granting of erroneous 
patents. Measures that contributed to high-quality patent examination were important to ensure the health and integrity of the patent system.  
67.  There was a great deal of consensus am ongst Members over those high-level policy 
objectives, but there was still much disagreement over the appropriate policy responses that would 
best achieve those objectives. New Zealand's own domestic policy in that area was still evolving, 
but it was committed to engaging constructively in relevant international forums to address those 
important issues. The WIPO IGC was undertaking a detailed consideration of the relationship between IP and genetic resources as well as traditional knowledge and traditional cultural expressions and had made progress on the text of international instruments on the protection of 
the three subject matters. New Zealand considered that the IGC was an appropriate forum to 
discuss the issues related to the protection of traditional knowledge and genetic resources because it was able to look at those issues in a holistic and coordinated way. The past years' work of the 
IGC was notable in that agreement was reached on a single draft text on genetic resources issues. 
She noted that the IGC would meet again in February 2013 to discuss genetic resources. New Zealand would continue to be an active and constructive participant in the IGC and committed to 
the fulfilment of the IGC mandate.  
68.  Regarding the Ecuadorian proposal, she had no objection to having a compilation document 
prepared by the WTO Secretariat. 
69.  The representative of Korea said that Korea was of the view that there was no necessity to 
revise Article 27.3(b) of the TRIPS Agreement, and that the review of that Article should be of a 
procedural nature, and focus on the effective impl ementation of that prov ision. The patenting of 
life forms should not be prohibited. Instead, inventions in all fields of technology, including 
biotechnology, deserved to be incentivized th rough adequate patent protections. The TRIPS 
Agreement and the CBD could be implemented in a mutually supportive manner, as they dealt 
with different substantive matters and different objectives. Given the huge potential benefits of 
biotechnology to all humankind, research and develo pment in that field should be encouraged. His 
delegation did not support the proposal to introduce a mandatory disclosure requirement, which would create legal uncertainties and would be too burdensome for patent applicants as well as for patent authorities.  
70.  The WIPO IGC was considering the relationship  between IP and genetic resources, traditional 
knowledge and traditional cultural expressions, and was working on the text of international instruments for the protection of the three subject matters. The IGC was an appropriate forum to 
discuss traditional knowledge and genetic resources.  IP/C/M/71 
 
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  71.  His delegation was willing to consider a proper solution to address the issues of misuse of 
genetic resources and erroneously granted patents. Establishing a traditional knowledge database system instead of an amendment of the TRIPS Agreement was an effective and feasible way to prevent erroneously granted patents, as it would allow patent examiners to search for prior art 
exclusively and confidentially. He called for careful consideration of the Ecuadorian proposal, and 
said that any decisions should be based on consensus.  
72.  The representative of Japan said that his delegation remained willing to work constructively on 
the three agenda items. It was necessary to seek appropriate measures to deal with the 
misappropriation of genetic resources without ad verse effect on the existing IP system. He 
thanked Indonesia for introducing the International Symposium on Ensuring Protection for Genetic Resources and Traditional Knowledge and Folklore through the Creation of Database Symposium 
on Database, and suggested that the Council have a deep discussion on Japan's proposal on the 
establishment of a one-click database system.  
73.  With regard to the Bolivian proposal, he underlined the importance of the patent system as an 
incentive for technical development in all fields, especially but not limited to biotechnology. Patent 
protection of biotechnology was essential to protect public health and benefit human beings. 
74.  The representative of Chile said that the three agenda items were of the utmost importance to 
Chile. The three fundamental requirements for patentability set forth in Article 27.1 of the TRIPS 
Agreement should be applied and respected in full by IP offices and, provided that that was the 
case, there should be no contradiction or conflict with the appropriation of naturally occurring life forms. 
75.  It was essential for national and regional patent offices to have access to all the information 
available and have the technical capacity to avoid granting erroneous patents that failed to comply with some of those patentability requirements. Databases could be very useful for providing better 
access to information on genetic resources and traditional knowledge and Chile was currently 
working on that area. Because of its geographical features, Chile possessed a genetic diversity that was endemic and therefore a heritage unique to Chile. Therefore, in addition to its active 
participation in other international forums such as the WIPO IGC, Chile was working on developing 
legal provisions that would make it possible to regulate access to genetic resources and traditional knowledge appropriately in line with its international commitments. In that context, Chile had also examined the potential benefits of a disclosure of origin requirement for genetic resources. 
76.  Because of Chile's interest in making progress in that area, his delegation had concern over 
the artificial linkage between three IP issues. That linkage certainly did not help in reaching a satisfactory solution to the TRIPS-CBD issue but rather made it more difficult and complex. 
77.  The representative of the European Union said that a mandatory requirement for disclosure in 
patent applications of the source or country providing genetic resources and/or associated 
traditional knowledge was appropriate as reflecte d in document TN/C/W/52. The European Union 
had tabled a proposal for legislation to implemen t the Nagoya Protocol. The proposed legislation 
included a mandatory disclosure requirement.  
78.  The representative of Canada thanked Indonesia for providing information on the 
International Symposium on Ensuring Protection for Genetic Resources and Traditional Knowledge 
and Folklore through the Creation of Database. He said that the TRIPS Agreement and the CBD 
were mutually supportive and that WIPO remained the best forum for technical discussions on genetic resources, traditional knowledge and folklore as they related to IP. He therefore welcomed 
the decision that had been taken in October 2012 by the WIPO General Assemblies regarding the 
future work of the WIPO IGC. He said that good progress had been achieved in 2012 and his 
delegation was eager to continue engaging in those negotiations toward reaching a mutually 
agreeable and successful outcome that would ensure  the effective protection of genetic resources 
and traditional knowledge and folklore. 
79.  The representative of Nepal said that th e TRIPS-CBD issue should be discussed in all the 
relevant forums, including the Council and the CBD. In order to ensure the protection of genetic 
resources and to ensure the equitable sharing of the benefit arising from the use of those 
resources, the user should disclose the country of or igin of the genetic resources, evidence of prior IP/C/M/71 
 
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  informed consent from the country of origin an d benefit-sharing agreements between the users 
and the country of origin.  
80.  The representative of the United States joined other Members in recalling the WIPO General 
Assembles' agreement to continue intensive negotiations on traditional knowledge, traditional 
cultural expressions and genetic resources in the WIPO IGC with 18 days of meetings planned for 
work in 2013. He said that his delegation cont inued to oppose patent disclosure requirements. 
Significant work remained to be done in the WIPO IGC to better understand the policy objectives 
and principles that would support proposals rega rding the protection of traditional knowledge, 
traditional cultural expressions and genetic resources. He said that his delegation needed to reflect further on the proposal to ask the Secretariat to work on that issue. 
81.  The representative of Norway recalled her delegation's proposal of a mandatory disclosure 
requirement submitted to the Council in 2006. She said that Norway had been associated with 
Group B in WIPO and appreciated the agreement on the future work of the IGC. Norway wished to 
achieve concrete results in the IGC process, bearing in mind the needs of indigenous peoples and 
local communities for respect and recognition of their traditional knowledge and traditional cultural 
expressions. In the WIPO Assemblies, Norway ha d underlined the importance of the rules which 
regulated disclosure requirements regarding genetic resources and traditional knowledge and 
patent and plant variety applications. With respect to traditional knowledge and traditional cultural 
expressions, Norway had also been supportive of  a legally binding instrument or instruments 
providing that the delimitations of rights were clear and that they secured a robust public domain and also secured reasonable exceptions and limi tations. Norway was very supportive of that 
process. 
82.  The representative of Tanzania said that he was following very closely discussions on TRIPS-
CBD issues and Article 27.3(b) of the TRIPS Agreem ent. Since the incorporation of CBD issues into 
the patent system might expand the criteria for patentability under the Agreement, he said that, in 
his view, consideration could be given to a separate instrument to protect traditional knowledge. A patent applicant, apart from meeting those criteria, should comply with any separate instrument 
under domestic law. There should be invalidation proceedings either in or outside the patent 
system if the application did not comply with the separate instrument. 
83.  The representative of Switzerland said that document TN/C/W/52 proposed modalities 
language for three TRIPS issues, i.e. the GI register, GI extension, and TRIPS-CBD. The mandate 
for the GI register went back to the mandate for the Uruguay Round and was contained in 
Article 23.4 of the TRIPS Agreement, while the issues of GI extension and TRIPS-CBD were 
mandated as outstanding implementation issues by Ministers in the Doha Declaration. Much 
ground had already been covered over the last 12 years in the TRIPS Council Special Session and 
in the Director-General's consultations.  
84.  Regarding the issue of TRIPS-CBD, his delegation was of the view that a mandatory disclosure 
requirement in the TRIPS Agreement would enhanc e the transparent use of genetic resources and 
traditional knowledge in inventions and corresponding patent applications. Such transparency was crucial to help access and benefit-sharing systems put in place by Members to work effectively and efficiently. Such transparency was ultimately in the interest of those in favour of the patentability 
of biotechnological inventions. Switzerland was convinced of the eminent role that the field of 
technology played nowadays and would play in the future for the benefit of mankind.  
85.  He welcomed the renewal of the mandate of the WIPO IGC for 2013, and said that the work 
undertaken in the IGC and in the WTO complemented  each other. Members needed to ensure the 
coherence of outcomes in the two Organizations with a view to further enhancing the mutual 
supportiveness of the TRIPS Agreement and the CBD.  
86.  He said that his delegation supported the proposal by Ecuador that the Council request the 
Secretariat to update the existing compilation document on the TRIPS-CBD issue.  
87.  The representative of the Secretariat noted the proposal made by Ecuador and supported by 
several other Members on the preparation of a compilation of Members' positions taken over the 
past 15 years and an associated briefing session , and the analogy being drawn with the work on 
non-violation disputes. The Secretariat had prep ared earlier compilations on the three issues IP/C/M/71 
 
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  circulated in documents IP/C/W/368/Rev.1, IP /C/W/369/Rev.1 and IP/C/W/370/Rev.1. Those 
compilations corresponded to the needs that had b een expressed by Members, and were close in 
their character to the work on non-violation disputes. Those compilations were not up to date as the last revision had been made in February 2006. If there were to be agreement in the Council, 
the Secretariat could commit to updating them, bearing in mind that when the first set of 
compilations had been prepared in 2002, there ha d been an understanding in the Council that 
those materials would be updated periodically as further substantive material was brought forward 
by Members. Given the lapse of time of over six years and the fact that each Council meeting had 
covered those three topics since then, there would be a certain logic to updating those compilations.  
88.  The existing compilation documents, even thou gh they were six years old, had proven to be 
extremely useful also in the WTO technical cooperat ion activities as an insight into the range of 
issues under consideration and the positions taken in the Council.  
89.  The most straightforward way forward, if the Council would so agree, would be for the 
Secretariat to refresh and update those existing materials, taking account of the developments 
since the last revision in February 2006. Those three documents would be updated in draft form and circulated as JOB documents for review and consideration of Members and then presented as 
a full revision of each of the three documents through an associated briefing session similar to the 
non-violation briefing session and then tabled for the consideration of the Council in the regular way.  
90.  The representative of the United States thanked the Secretariat for the clarification of the 
status of its work. He requested an opportunity to reflect on Ecuador's proposal before any 
decision was taken in the Council. 
91.  The representative of Nigeria questioned whether the revised documents would be circulated 
or adopted at the Council's meeting. He asked for clarification that the documents would be factual 
reports and presented by the Secretariat on its own responsibility.  
92.  The representative of the Secretariat said that the three documents had been circulated 
simply for the information of Members and each document was subject to the caveat "This 
document has been prepared under the Secretariat's own responsibility and without prejudice to the positions of Members and to their rights and obligations under the WTO". In the course of the 
development of the documents, they would be circulated as JOB documents, and Members 
concerned would be given an opportunity to conf irm and clarify any characterisation of their 
positions that were mentioned in the documents. The past revisions of the three documents had been simply noted by the Council, and they had not been adopted formally by the Council. 
93.  The representative of Ecuador thanked Egypt, Pakistan and other Members for their support 
to his proposal. He also thanked the Secretariat for the clarification. Since some Members still had 
doubts on that exercise, he suggested that the Council revert to the proposal later. 
94.  The representative of Nigeria said that the African Group needed to further reflect on 
Ecuador's proposal. 
95.  The representative Egypt thanked Ecuador for it s flexibility that enabled Members to reflect on 
its proposal. He would consult with the other Members of the African Group. 
96.  The Chairman suggested that the Council request the Chair to continue consulting on the 
suggestion that the CBD Secretariat be invited to brief the Council on the outcome on the Nagoya 
meeting, and that the Council revert to Ecuador's proposal at its next meeting. 
97.  The Council so agreed. IP/C/M/71 
 
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  6  REVIEW UNDER PARAGRAPH 8 OF THE DECISION ON THE IMPLEMENTATION OF 
PARAGRAPH 6 OF THE DOHA DECLARATION ON THE TRIPS AGREEMENT AND PUBLIC HEALTH 
98.  The Chairman recalled that, as he had indicated in a fax sent to Members on 17 October in 
preparation for this review, the feedback in his consultations had been that this year's review 
should follow the standard format. Accordingly, afte r the introduction of the item and an update on 
any relevant recent developments , the floor would be open to delegates for comments. As he had 
also indicated in the fax, in these consultations it had been suggested that Members, in preparing 
themselves for the meeting, could refer to the re cords of the discussions that had taken place in 
October 2010 (IP/C/57 and Corr. 1), March 2011 (IP/C/M/65, pa ras.118-198) an d October 2011 
(IP/C/61). He also drew attention to the fax that his predecessor had sent out in preparation for 
the October 2011 review with a list of topics and issues for discussion prepared in the light of 
earlier discussions and consultations with Members. 
99.  He said that Members had stressed the importance and value of a substantive review of the 
system under the Decision (the System) and of Memb ers' experience with it and with alternatives. 
The records of the past reviews, including the ex change of questions and responses, provided a 
unique and valuable avenue for greater understanding of this important measure. He therefore 
encouraged Members to pose further questions and to respond to those questions that had already 
been posed, to promote this greater understanding.  
100.  The Chairman said that, during his consultations, some delegations had also reiterated their 
proposal for an open-ended workshop involv ing all the key stakeholders. However, views 
continued to diverge on this proposal. 
101.  As regards the purpose of the review, he re called that paragraph 8 of the Decision on the 
Implementation of Paragraph 6 of the Doha Declar ation on the TRIPS Agreement and Public Health 
(the 2003 Decision) provided that the Council for TRIPS shall annually review the functioning of 
the System with a view to ensuring its effectiv e operation and report on its operation to the 
General Council. Furthermore, the paragraph provided that this review shall be deemed to fulfil the 
review requirements of Article IX:4 of the WTO Agreement. 
102.  The Secretariat had circulated a draft cover note for the Council's report modelled on 
previous years' reports (JOB/IP/6). This draft cover page contained factual information on the implementation and use of the System and on the acceptance of the Protocol Amending the TRIPS 
Agreement (the Protocol). In accordance with the way that the Council had prepared its past 
reports, the part of the minutes of the meetin g that reflected the discussions held under this 
agenda item might be attached to the cover note. 
103.  Paragraph 7 of the cover note contained a list of Members that had notified their acceptance 
of the Protocol. Since the Council's meeting in Ju ne 2012, Chinese Taipei had also accepted the 
Protocol (WT/Let/870). Paragraph 7 would need to be updated accordingly. 
104.  The Chair recalled that the Protocol shall enter into force for the Members that had accepted 
it upon acceptance of the Protocol by two thirds  of the Members. It was open for acceptance by 
Members until 31 December 2013 or such later date as might be decided by the Ministerial Conference. He encouraged delegations to ensure  that necessary measures were taken in their 
capitals to allow the consideration of the acceptance in a timely fashion. 
105.  The representative of Chile said that his Government had forwarded draft legislation to 
enable approval of the Protocol to the National Congress in August 2012. Rapid progress was made 
in completing the legislative steps prescribed by domestic legislation. The draft had been approved 
by the Chamber of Deputies in the National Congress and was being reviewed by the Senate. It should therefore be finalized soon. The approval of the Protocol emphasized the importance that 
his delegation attached to providing flexibility in relation to public health. Such flexibility could and 
had to be part of the multilateral trading system as it was an essential tool for building balanced IP systems.  
106.  The representative of China recalled that th e adoption of the 2003 Decision by the General 
Council had been a historical moment. The 2003 Decision was the first result that had been IP/C/M/71 
 
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  achieved by WTO Members through consensus under the Doha mandate. Her delegation continued 
to feel very encouraged by this achievement in th e field of public health, especially considering the 
fact that the Doha Round negotiations on other topics were currently stalled. By waiving Members' obligations under Article 31(f) of the TRIPS Agreement, the System allowed poorer countries to 
make full use of TRIPS flexibilities in order to deal with diseases that ravaged their people. 
Whether it had completely achieved its objectives was not easy to assess. Many Members were facing public health challenges from time to time, but the System had been used only once so far. 
Its review was therefore necessary in order to improve it. During the past annual reviews, 
Members had also discussed the broader issues related to innovation of and access to medicines, including those on the list of topics and issues that had been circulated by the Chair in 2011. 
However, the difficulties in using the System and possible improvements had not been clearly 
identified. Her delegation therefore agreed wi th the approach suggested by the Chair, of 
encouraging Members to pose more questions fo r the purposes of conducting future annual 
reviews. She reiterated her delegation's support fo r the organization of a dedicated workshop that 
would allow to gather information from all relevant stakeholders so that answers could be found to 
some of the open issues 
107.  The representative of Canada welcomed the opportunity to discuss the implementation of the 
System and to share some thoughts on the issu e of access to medicines. In response to the 
questions and views that had been exchanged at the review in October 2011, he updated Members 
on relevant legislative developments related to Canada's Access to Medicines Regime (CAMR). At the last review, Canada had advised Members that Bill C-393, which had sought to amend CAMR, 
had died on the Order Paper when Parliament had been dissolved. In February 2012, a similar bill, 
Bill C-398 had been introduced in Parliament. It had been the object of a second reading in October 2012. As was the case with Bill C-393, Bill C-398 had been introduced by a private 
member and not by the Government. Up-to-date info rmation on Bill C-398, including transcripts of 
all debates, was available on the website of the Parliament of Canada. He recalled that his delegation had also asked a number of questions at the review in October 2010, mainly whether 
potential importing Members had availed themselves of pooled procurement schemes, whether 
Members had increased their domestic manufacturing capacities since the adoption of the 2003 Decision, and whether potential importing Members still imposed tariffs or duties on the products concerned by the 2003 Decision, as well as on other products, such as anti-malarial commodities. 
108.  The representative of Turkey said that the implementation of the System was very important 
for his delegation. He informed Members that domestic procedures to ratify the Protocol were at 
the final stage and would hopefully be completed by end 2012. 
109.  Concurring with the delegation of China th at the adoption of the 2003 Decision had been a 
historical achievement, the representative of Cuba recognized the important progress that had 
been made in this area. In particular, past annual reviews had helped to clarify some of the issues 
raised with respect to the first use of the System to export medicines from Canada to Rwanda. She 
also acknowledged the existence of alternative solutions that could support Members with insufficient manufacturing capacities in the pharmaceutical sector to ensure access to medicines at reasonable prices. However, before the amendment to the TRIPS Agreement could be accepted 
and legislation to implement the System into national law be put in place, the practical aspects 
related to the use of the System had to be looked at. Those included the restrictions that potential 
exporting Members had introduced in their domestic legislation, which were not required by the 
System but which made it difficult to use it. Sh e supported the proposal by China that an open-
ended workshop be held to gather information an d share experiences that would make it possible 
to assess the functioning of the System. 
110.  The representative of India said that a dedi cated workshop on the functioning of the System 
involving all stakeholders was needed in order to move beyond the annual ritualistic review of the 
System and related issues, which did not add any value to the debate. In his view, the System had been sub-optimally used so far as it had been used only once by a single country for a single drug 
and for a single supplier. Since the issue was of  fundamental interest to most WTO Members, 
including developed country Members, it was important to hold such a dedicated workshop. It would provide an opportunity for a substantive discussion with the participation of all relevant 
stakeholders, including capital-based officials.  Genuine efforts were being made by several 
countries to implement the System in their domestic legislation. His delegation had implemented it by incorporating Section 92-A in the Indian Patent  Act. Canada, as the only country that had used 
the System once to supply HIV/AIDS medicines to Rwanda, had implemented it through CAMR. IP/C/M/71 
 
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  However, the Canadian generic companies had soon  realised the complexities in the System and 
had publicly stated that they were unable to su pply affordable generic medicines to the needy 
countries in Africa. He welcomed the information provided by the delegation of Canada on Bill C-398.  
111.  The representative of India asked how developed countries who had opted out of using the 
System would deal with a situation of shortage of affordable medicines in their countries in case of 
influenza pandemic or any other public health emergency. He sought clarity as to what steps were 
available to import medicines or vaccines to address such a shortage when patents or other IPRs 
presented a barrier. In particular, he referred to media reports according to which a German pharmaceutical company had stopped supplying life-saving cancer medicines to Greece on account of its inability to settle pending bills.  He asked whether Greece as an opt-out country could issue a 
compulsory licence to manufacture the medicine locally to meet the domestic demand at an 
affordable price or, in case of insufficient manufacturing capacity, whether it could import the needed medicines from a generic manuf acturer at an affordable price.  
112.  He also asked whether the provision of test data exclusivity in national legislation could act 
as a major hurdle in using the System. This question was particularly directed towards Members like the US and the EU, who were spear-heading the inclusion of such and other TRIPS plus 
provisions in free trade agreements and plurilateral agreements. It was his understanding that 
countries acceding to the WTO had also been obliged to provide for TRIPS plus provisions, including test data exclusivity. 
113.  The representative of Brazil agreed with th e delegations of China and Cuba that the adoption 
of the System was a milestone in the history of  the implementation of the TRIPS Agreement. 
Normative act advancement always faced the challenge of implementation and the System was no exception to this rule. Years after its adoption it had yet to fulfil its ultimate objective.  Regarding 
the annual review, different approaches had been us ed over the past few years. One of the most 
positive experiences had been the review that the Council had undertaken in 2010. It had been 
well prepared, including through the establishment of a list of pre-selected topics and questions. 
The result had been a very dynamic debate wh ich had engaged most Members, some of them 
actively facilitating the debate. He supported the suggestion made by the delegation of China that this approach be revisited for future reviews. Hi s delegation also supported the proposal that an 
open-ended workshop be held by the Council in or der to understand the challenges that different 
countries and international agencies were facing in implementing the System.  
114.  The representative of the United States said that his delegation strongly supported the 
System as established under the 2003 Decision and the Protocol. He encouraged other Members to 
notify their acceptance of the amendment so that it could enter into force. 
115.  As noted previously (IP/C/M/67, paras.202-203), his delegation viewed the System as one of 
many tools to address the issue of access to medicines. Among others, tariffs were applied to 
medicines, to the components of those medicine s, such as active ingredients, and medical 
products. Tariffs imposed by governments were, however, borne by patients. During the Uruguay Round negotiations, his delegation had therefore joined several other Members (Canada; the EU; 
Japan; Norway; Switzerland; and Macao, China) in an agreement to eliminate tariffs on medicines 
and active ingredients in order to liberalize trad e, lower costs, and increase access to these 
essential products.  Since then, the participants  in the pharmaceutical zero-for-zero agreement 
had updated it four times in order to include ad ditional inputs for medicines, thereby further 
reducing the costs of production for medicines. 
116.  According to a paper by the WTO Economic Research and Statistics Division entitled "More 
Trade for Better Health, International Trade and Tariffs on Health Products", which had been 
released on 18 October 2012, several countries continued to maintain relatively high tariff rates on 
medicines, active ingredients and medical products, despite a general trend toward tariff reduction on these goods. The report concluded that "the question to ask is why countries even maintain tariffs on health products. Imposing tariffs typically translates into higher product prices, especially 
in the presence of long supply changes. Maintaining tariffs ultimately means taxing the sick and 
creating additional costs for the health system." To  exemplify this point, the representative of the 
United States drew attention to a report by the Assistant Minister for Public Health and Sanitation 
of Kenya in 2011, according to which the removal of taxes and tariffs for malaria products had led 
to a 44% decline in the rate of infant mortality and disease, and a 50% reduction on infant IP/C/M/71 
 
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  mortality in one region. He said that, as demonstrated by a 2005 WHO study, the impact of tariffs 
on medicines extended beyond consumers, as tariff s also adversely affected local industries that 
often relied on the import of active ingredients. 
117.  He noted that voluntary licensing and policies that promote such licensing also provided 
important tools to promote access to medicines. A good example was the US National Institute of 
Health (NIH). It was the first contributor to the Medicines Patent Pool (MPP) in the voluntary licensing of US government-owned patents related to the use of ARV protease inhibitor drugs. The 
MPP promised to enhance access to ARV treatment fo r people living with HIV/AIDS in developing 
countries and facilitated the development of new combinations of ARVs and adapted formulations for developing countries. While the NIH was only one owner of intellectual property in the area of public health, the actions undertaken demonstrated the partnerships that were occurring 
internationally, as well as the trend towards voluntary licensing. These practices were helping to 
enhance access to medicines. He urged other Members to consider participating in this effort.  
118.  In response to the questions raised by th e delegation of India regarding the situation in 
Greece, the representative of the European Unio n said that, while he agreed that Greece was 
going through difficult economic times, he failed to see the link with the annual review of the 
System. The System was designed for countries with no or limited manufacturing capacities in the 
pharmaceutical sector in order to ensure that they could make effective use of compulsory licences 
to import medicines from other countries. In the European Union, public health systems provided universal coverage for all patients. Those systems were expensive and represented an important part of public expenditure. This explained why ec onomies had to be made and delays in payments 
sometimes occurred. It was, however, simplistic to blame IP for this, as it was simplistic to think 
that all the problems in the public health sector could be solved by systematic recourse to compulsory licences. Recent studies in Europe ha d shown that the cost incurred by purchasing the 
most innovative patent-protected medicines represented only a relatively small fraction of the 
overall costs of national health systems. The st udies had also illustrated that the money to buy 
those medicines was well spent because it helped to avoid higher costs, for instance, for long-term 
treatments or treatment in hospitals. He was of th e view that it was possible to keep an IP system 
in place that supported the development and production of innovative medicines. There was no debate in the European Union to change the status as an opt-out Member that was not allowed to use the System as an importer. 
119.  The representative of Japan said that, in his view, IP protection was conducive to the 
development of medical technology. He emphasized that the debate on access to medicines should 
not be limited to the functioning of the System, but also needed to take into account other 
important elements, such as procurement and tariffs. The very objective of the System was to 
contribute to increasing access to medicines for WTO Members with insufficient or no manufacturing capacities in the pharmaceutical sector. Compulsory licences were just one tool to 
promote this objective. The System should therefor e not be considered as the only solution in an 
isolated manner, but as an optional measure next to  other efforts to address this critical problem. 
120.  He said that knowing about the specific concerns of potential importing countries that 
wanted to use the System was indispensable for the review. He therefore invited those Members 
to share their experiences, including any difficulties they were facing. It would be beneficial for the 
Council to listen to such observations by potent ial importing Members, based on the list of topics 
and questions for discussion prepared for the annual reviews in 2010 and 2011. Because some 
topics in the list had not yet been fully discussed, he maintained that the organization of an open-
ended workshop was premature.  
121.  Reverting to the response provided by the delegation of the European Union, the 
representative of India clarified that he was trying to relate the situation in Greece to that in 
developing countries. Difficulties in accessing medicines caused by the IP system were normal for 
them, but the example of Greece showed that even a developed country could face access 
problems because of IP. If Greece had an option to import generic medicines from another 
manufacturer, it could solve the problem. 
122.  Drawing on the details that were set out in the overall report on technical cooperation in the 
area of TRIPS provided by the Secretariat (IP/C/W/577), the representative of the Secretariat said 
that the focus in technical cooperation on TRIPS and public health continued to rest on assisting Members to understand the rights and obligations, including the available options which flowed IP/C/M/71 
 
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  from the TRIPS Agreement and subsequent decision s of the WTO bodies in the light of the Doha 
Declaration on the TRIPS Agreement and Public Health. A key aspect was the cooperation with other intergovernmental organizations, in particular the WHO and WIPO. There was a continuing emphasis on strengthening coordination both on  the provision of technical cooperation and the 
provision of background information in support of that activity. Complementarity and cooperation 
meant that the scope of policy tools considered and the scope of information had broadened to 
encompass the overall context of public health, innovation and access issues. 
123.  As an example of the work that was undertak en, he referred to the Workshop on Intellectual 
Property and Public Health, the eigh th in the series that had been held in Geneva in October 2012. 
Organized in close collaboration with the WHO and WIPO, and with the involvement of other international organizations such as UNCTAD, the workshop had been held principally for the benefit 
of developing country Members and LDCs, but some developed country participants had also 
attended. It had provided an overview of the ke y issues involving both the innovation of new 
medicines and medical technologies, as well as the strategies for an effective access and the 
dissemination of the fruits of innovation in the field of public health. It had addressed the key 
concepts and measures under the TRIPS Agreement and other international instruments, focusing 
on the public health-related provisions of th e TRIPS Agreement and flexibilities that enabled 
Members to adapt their systems to meet public health objectives. A key feature of the Workshop 
had been to take advantage of the policy ecosys tem in Geneva which enabled the organizers to 
draw on experts with a wide range of expert ise, experience and background, including non-
governmental organizations such as Medicines for Malaria Venture, the Global Fund to Fight AIDS, 
Tuberculosis and Malaria, the International Federation of Pharmaceutical Manufacturers 
Associations, and Médecins Sans Frontières. Some of the themes beyond the TRIPS Agreement that were covered included the role of competition rules; pricing and procurement policies and 
strategies; the use of patent landscaping as a guide to policy makers; the impact of provisions in 
bilateral and regional trade agreements; the economics of health technologies; the operational aspects of the international patent system, including the use of information on patents and on 
their legal status for freedom to operate; data on access to medicines and medicine prices; current 
issues, such as the challenges regarding prevention and control of non-communicable diseases as well as the essential elements of medicines policy; the regulatory process, quality control and effectiveness of medicines, including counterfeit, falsified and sub-standard medicines; licensing 
practices; and a wide range of country reports and national policy perspectives by a number of 
participants and delegates from Nepal, South Africa, Botswana, Oman, Ghana, Honduras, Colombia, the EU, the US, Brazil, India and Switzerland. Participants from developing countries 
had reported on the domestic implementation an d use of the System and the implementation of 
other TRIPS flexibilities in their national law, experiences in reforming domestic legislation to enhance the synergy between health and trade objectives, and experiences in negotiating bilateral 
and regional trade agreements with bearing on inte llectual property and public health. As part of a 
side event, the German Federal Ministry for Economic Co-operation and Development had briefed participants in cooperation with UNCTAD and the South Centre on technical cooperation activities relating to fostering pharmaceutical pr oduction by using TRIPS flexibilities.  
124.  IP and public health had also been a key thematic focus of a range of other activities, in 
particular three regional workshops in Kuwait for Arab and Middle Eastern countries, in Malaysia for Asia and the Pacific Region, and in Croatia fo r the Central Eastern European, Central Asia and 
Caucasian Region. At the request of a number of Members, TRIPS and public health had also been 
specifically addressed in national workshops.  
125.  The representative of the Secretariat informed the Council about the forthcoming trilateral 
study on "Promoting Access and Medical Innovation - Intersections between Public Health, 
Intellectual Property and Trade" that was being prepared together with the WHO and WIPO. The publication tracked closely the content and them es of technical cooperation activities and 
consolidated the material used in such activities, notably the series of trilateral symposia that the 
three Organizations had convened, as well as the se ries of workshops on IP and public health. It 
was intended to serve as a factual and comprehensive platform for continued technical cooperation and capacity building in this area. An outl ine had been presented in 2011 at a high-level 
symposium of the Global health programme of th e Graduate Institute, chaired by Madame Ruth 
Dreifuss, in which the Directors-General of the three cooperating Organizations had taken part. 
126.  The representative of WIPO informed the Council about legislative and policy advice on 
patents, referring to or including considerations regarding the System that had been provided from IP/C/M/71 
 
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  June 2011 to June 2012. Among others, the WIPO Secretariat had drafted laws and had provided 
comments on draft laws at the request of 10 Me mber States. In the framework of legislative 
assistance on patents, matters related to health policies had also been addressed in the context of 
eight short term missions to capitals and four consultations in WIPO headquarters in Geneva. 
Legislative implementation of patent law matters related to health policies had been addressed in a 
number of events, including a Regional Seminar for Certain Latin American and Caribbean Countries on the Implementation and Use of severa l Patent-Related Flexibilities, held in Bogota, 
Colombia from 6 to 8 February 2012 and the Second  Meeting of Intellectual Property Experts from 
the Common Market for Eastern and Southern Africa (COMESA), held in Lusaka, Zambia from 23 to 25 November 2011. WIPO's assistance was consistently based on the multilateral legal framework. A number of authorities in charge of dr afting laws had been seeking advice from WIPO 
regarding how to use the available multilateral flexibilities so as to accommodate particular 
national interests that were specific to their countries. The System, being a part of those flexibilities which are considered by several countries as part of their access-to-medicine policies, 
was regularly covered WIPO's legislative and policy assistance. 
127.  The representative of WIPO recalled that, at the annual review in 2011, his delegation had 
provided information on a new consortium called "WIPO Re:Search – Sharing Innovation in the 
Fight Against Neglected Tropical Diseases". WIPO Re:Search had been launched on 26 October 
2011, with about 30 members, including pharmaceutical companies, research institutions and a range of public and private entities as members. One year after its launch, WIPO Re:Search had doubled its membership to 62, including a growing number of members from African-based 
organizations. It had resulted in 11 research collaborations or agreements. A number of additional 
agreements were in advanced stages of discussion between members with more collaboration ideas and agreements in early development. WIPO Re:Search was a consortium of which members 
categorized as providers, users and supporters. It was led by WIPO in partnership with BIO 
Ventures for Global Health (BVGH), a non-profit organization based in San Francisco, whose role was to facilitate research agreements between members. Each member had endorsed the guiding 
principles when joining the consortium. The commi tment to the guiding principles had achieved a 
common understanding about how WIPO Re:Search operated and the way in which it achieved its goals. The WHO was supporting this initiative by providing technical advice to WIPO. 
128.  WIPO Re:Search was founded on the belief that IP and knowledge could be used creatively 
and positively to stimulate more investment in research and development for new health solutions. 
It was grounded on voluntary agreement and operated on the basis of voluntary licenses. While the guiding principles provided partners with a ll the flexibility needed to achieve appropriate 
licensing agreements, they set some minimum terms for licensing. In particular, providers had 
agreed to grant royalty-free licences to qualified researchers anywhere in the world for the purpose of R&D for neglected tropical diseases (NTDs), malaria, and tuberculosis (TB). Any 
researchers anywhere in the world would thus be able to carry out their research free from 
royalties, provided the research is focused on NTDs, malaria, and TB. There was no royalty requirement for carrying out research under a WI PO Re:Search licence. Any products resulting 
from this research would also be royalty-free for sales in least developed countries. Royalties for 
sales of products in other countries would have to be negotiated on a case-by-case basis between 
the partners.  
129.  The basic structure of WIPO Re:Search contained three components. First, there was the 
platform in the form of a database operated by WIPO ( www.wiporesearch.org ), where Providers 
made their assets available for research free from royalties. Second, the partnership hub 
administrator, BVGH, engaged with members to facilitate research collaborations. BVGH was 
available for members who had identified assets of interest in the database to provide more 
detailed information, to connect potential partners and to help making a deal. Third, support was provided under the responsibility of WIPO, which in cluded training and a range of activities that 
aimed at capacity building, sometimes carried out in cooperation with others. For example, on 
1 and 2 November 2012, a training on Successful Technology Licensing had been organized at the 
WIPO headquarters for a group of invited representatives of research organizations in cooperation with the African Network for Drugs and Diagnostics Innovation (ANDI), the Medical Research 
Council (MRC), South Africa, and with the su pport of the Japan Patent Office (JPO). 
130.  The Chairman proposed that the Council agree to the cover note to the report as contained 
in JOB/IP/6, with Chinese Taipei to be added to the list of Members having accepted the Protocol, 
and also that the Council minutes containing the record of the discussion be attached thereto.  IP/C/M/71 
 
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  131.  The Council took note of the statements made and so agreed. 
7  NON-VIOLATION AND SITUATION COMPLAINTS 
132.  The Chairman recalled that, at the Eighth Session of the Ministerial Conference, Ministers 
had directed the TRIPS Council to continue its examination of the scope and modalities for 
complaints of the types provided for under subparagraphs 1(b) and 1(c) of Article XXIII of GATT 
1994 (so-called "non-violation and situation complaints") and make recommendations to their next Session, which they had decided to hold in December 2013. It was agreed that, in the meantime, 
Members would not initiate such complaints under the TRIPS Agreement.  
133.  He said that discussions on that issue dated ba ck to 1998, in view of the initial deadline for 
the Council to make recommendations by 1999, and that Members might wish to take the time now to consider what form a concrete recommendation to the next Ministerial Conference could 
take rather than working on the assumption that the matter would be deferred yet again. 
134.  As requested by the Council at its meeting in June, the Secretariat had updated its earlier 
summary note on the points raised in the Council's substantive discussion of this matter so far. 
This updated summary note had now been ci rculated as document IP/C/W/349/Rev.2. 
135.  He said that, as mentioned at that meeting, he had continued to be informally in touch with 
delegations to see if they had any ideas on how the Council's discussion on the matter could best 
be facilitated. In these subsequent consultations, some delegations had said that it would help 
them to consider the matter if the Secretariat would organize an informal background briefing on the notion of non-violation and situation complaints and on the views expressed in the Council discussions to date. 
136.  In response to this request, the Secretariat had held a briefing on this topic on the morning 
of 29 October. The purpose of that meeting had be en to provide factual background information on 
non-violation and situation complaints to delegations in order to enable them to engage in 
substantive discussions and to facilitate the Council's consideration of the matter. 
137.  The representative of the United States welcomed the Chair's guidance regarding the 
assumptions with respect to any extension of the moratorium. He said that the United States had 
provided several communications regarding concre te examples and modalities on this topic and 
would continue to work with the Chair and with Members on this issue. 
138.  His delegation continued to be of the view that the moratorium should and would expire at 
the next Ministerial conference, unless there was consensus to do otherwise. The possibility of 
non-violation disputes had been a part of the GATT dispute settlement system since the beginning 
and his delegation maintained that non-violation complaints were fully appropriate in the context of the TRIPS Agreement.  
139.  He said that the TRIPS Agreement had been carefully negotiated to accommodate different 
legal regimes and to accommodate Members’ need to  achieve policy objectives. The availability of 
non-violation complaints would merely assist Memb ers in their efforts to preserve the balance of 
concessions and to protect against measures that frustrate legitimate expectations.  
140.  The representative of China welcomed the Secretariat's updated summary note on non-
violation situation complaints and referred to the US delegation's submissions on the scope and 
modalities concerning non-violations. As these documents involved complicated technical issues, 
she said that her delegation might need more time to study them.  
141.  As her delegation had stated at previous Council meetings, China believed that the TRIPS 
Agreement was quite different in nature and structure from GATS 1994. Under the TRIPS 
Agreement, the obligation of Members was to comply  with the rules setting up a minimum level of 
protection of the seven types of IP subject matter. In her view, as the TRIPS Agreement was about rule-making and rule-setting, it was unlike the tr ade-offs and concessions made by Members on a 
reciprocal basis in other WTO covered agreements. It was therefore difficult to imagine how a 
Member that was fully consistent with TRIPS could be sued on the basis of non-violation.  IP/C/M/71 
 
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  142.  With respect to precedents, she said that the eight existing DSB cases concerning non-
violation disputes all showed that a higher level of burden of proof was required to bring non-violation complaints. She further recalled that the negative consensus rule did not apply to situation complaints, and that the principle of good faith performance and application was already 
applicable to the TRIPS obligations. As the TRIPS Agreement did not contain a general exception 
for measures protecting health, the environment and other national policies like Article 20 of the GATT 1994, the introduction of non-violation and situation complaints under the TRIPS Agreement 
would cause fundamental concerns and could limit the use of flexibilities provided for under TRIPS. 
Her delegation therefore believed that the application of non-violation and situation complaints under the TRIPS Agreement was not appropriate and would be problematic. However, China remained open for technical discussions with Members who had an interest in this issue. 
143.  The representative of India thanked the Secretariat for the balanced recent presentation on 
this issue which had been useful in understanding the positions of different Members. India was of 
the view that the TRIPS Agreement was a sui generis agreement which was not designed to 
protect market access or the balance of tariff concessions, but rather to establish minimum 
standards of IP protection. In this regard, his delegation wished to draw Members' attention to document IP/C/W/385, dated 30 October 2002, of which India was a co-sponsor. The submission 
gave details of the systemic concerns and reasons why there should be no application of non-
violation and situation complaints to the TRIPS Agreement. In that submission, his delegation argued that non-violation complaints could upset the delicate balance of rights and obligations in the TRIPS Agreement, and could also limit the use of  the flexibilities outlined in the Agreement to 
secure objectives relating to public health, nutrition, transfer of technology and other issues of 
public interest in sectors of vital importance to social economic and technological development. While remaining open for any discussion in that regard, he therefore urged Members to ban non-
violation complaints under the TRIPS Agreement completely. 
144.  The representative of the European Union said  his delegation wished to thank the Secretariat 
for the excellent work done, including the initiative, the updated summary paper, and the 
workshop organized, as this had revived the argu ments that had been put on the table over the 
years. He said that his delegation was open to using the time, until another decision on this matter had to be taken, to analyze these arguments again. In that regard, it had been brought to his delegation's attention that certain bilateral agreements between Members contained clauses on the 
application of non-violation complaints in the area of IP. It might be useful to know whether there 
were practical examples of applying these provisions in bilateral relations as that would provide interesting elements for the debate which – in the TRIPS Council – had remained purely 
theoretical. 
145.  The representative of Cuba said that her delegation supported the comments made by China 
and India. She said that Cuba had co-sponsored document IP/C/W/385 of October 2002, which 
provided sufficient reasons for the inapplicability of non-violation complaints. It was well-known 
that the rights and obligations, as well as the flexibilities of the TRIPS Agreement, had been 
negotiated on the basis of the principles and objectives set out in the Agreement, and that 
implementation could be effected in conformity with  the system and legal practice specific to each 
Member. The only condition that had been established was that this be consistent with the rules of 
the Agreement.  
146.  She said that without sufficient argument s by Members who opposed the declaration of 
inapplicability her delegation could only suspect that these Members sought an interpretation they 
could then use to oppose the use of TRIPS flex ibilities. Employing such arguments that went 
beyond a shared interpretation of the letter and scope of the rules contained in TRIPS, however, 
might lead to a situation where the rights of private right holders could potentially nullify or impair 
the rights of Members, particularly developing countries. This would thus affect the balance negotiated between IP rights of a private nature  and measures intended to prevent the abusive 
use of these rights. It could unjustifiably restrict trade and could have detrimental effects on 
international transfer of technology and on public po licies such as in public health and food policy.  
147.  She said that declaring such provisions in applicable would be a means of safeguarding the 
flexibilities, the exceptions and the limitations which were necessary to ensure that developing 
countries could apply domestic policies that are most appropriate in view of their needs in the 
economic, cultural, technological and social spheres. Permitting such complaints would not provide predictability and security to the system, but rather would create legal uncertainty and generate IP/C/M/71 
 
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  mistrust in the good faith which should prevail over all deliberations in the issues under 
negotiation.  
148.  The representative of Switzerland said his delegation wished to thank the Secretariat for 
organising the Workshop on non-violation and situation complaints which had placed the issue in 
the historic and regulatory context of WTO, and ha d recalled the work done so far on this topic in 
the TRIPS Council.  
149.  As for the Swiss position, he said his delegation had consistently argued over the past years 
that the TRIPS Agreement was one of the three main  pillars of the WTO system, and thus part of 
the overall market access regulatory framework. This provided a systemic reason supporting the 
application of the principle of non-violation in the context of the TRIPS Agreement, as it provided security and predictability in the WTO regime as a whole. As had been pointed out at the 
Secretariat’s briefing session, a fair number of Members also provided for non-violation in their 
regional trade agreements and applied them also to the provisions of IPR under these agreements. 
150.  He said that Article 64.2 and 64.3 of the TRIPS Agreement made a clear and unambiguous 
reference to non-violation and situation complaints. The very fact that this Article provided for a 
moratorium, limited to five years, meant that - after the expiry of the moratorium - such 
complaints would be applicable also in the context of the TRIPS Agreement. The five-year 
moratorium, which had been extended several times since the entry into force of the Agreement, 
had been intended to examine the scope and modali ties of such complaints in the TRIPS context, 
but no such proposals or submissions on scope and modalities had been submitted over the past 
years. 
151.  While there were differing views on whether additional modalities should be put in place for 
non-violation and situation complaints, his delegation believed that the DSU contained sufficient guidance for the application of such complaints under TRIPS. In conclusion, he said, it was 
therefore not incumbent on his delegation to propose hypothetical scenarios in which non-violation 
would be applicable under TRIPS. Submitting proposals was much more up to those delegations who believed that the scope and modalities for applying non-violation complaints in the TRIPS 
context required additional and specific consideration beyond what was already contained in the 
DSU. Switzerland did not believe so, but remained open to examine any such proposals from other 
Members between now and the next Ministerial Conference.  
152.  The representative of Brazil said that his de legation also wished to thank the Secretariat for 
having updated the note on non-violation and situation complaints and for having organised a very 
useful briefing at the WTO. He said that Brazil's position remained the same, namely that non-violation and situation complaints should be determined inapplicable to the provisions of the TRIPS 
Agreement. The reasons for that were exactly th ose put forward by the delegation of India and 
China. 
153.  The representative of Bolivia said his delegation also wished to thank the Secretariat for 
preparing the updated document and for organizing the corresponding briefing session. Bolivia was 
a co-sponsor of document IP/C/W/385 in 2002 and the arguments put forward in that document remained the same. He said that allowing the full range of dispute settlement tools to apply to the TRIPS Agreement might permit challenges to the us e of TRIPS flexibilities in the absence of any 
violation of the Agreement, thus causing a level of uncertainty to national regulators that would be 
very difficult for Bolivia to accept. His delegation therefore believed it important that the Council decide on the inapplicability of non-violation complaints within the framework of the TRIPS 
Agreement. 
154.  The representative of Chile said his delegati on also wished to thank the Secretariat for the 
updating of document IP/C/W/349, and for the information meeting held on 29 October. He said 
that the presentations at that meeting had give n Members updated and factual information, which 
his delegation hoped would ensure that any decision with for the next Ministerial Conference to be held in 2013 would be based mainly on technical and legal findings. With a view to contributing to the debate on this issue and taking up the question  put forward by the EU on the treatment of this 
matter at a bilateral level, it was Chile's experience that at the bilateral level, the context, the 
substantive IP rules, and the negotiating balances were very different too. Therefore, he said, his 
delegation did not believe that what happened bilaterally had to also apply in the multilateral IP/C/M/71 
 
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  context in this regard. Furthermore he said that to his knowledge there was no case of practical 
application of a non-violation or situation complaint in the bilateral context. His delegation remained interested in participating actively in this discussion and was ready to share further elements with other Members. 
155.  The representative of Nigeria thanked the Secretariat for the briefing and the updated noted 
and said that the position of the African Group, in  line with that of India, China, Brazil and Chile, 
favouring the inapplicability of the non-violation and situation complaint under the TRIPS 
Agreement. With respect to the issue of bilateral agreements, his delegation agreed with Chile that 
the context there that is different than in the multilateral trading system. 
156.  The Council took note of the statements made and agreed to revert to the matter at its next 
meeting. 
8  REVIEW OF THE IMPLEMENTATION OF THE TRIPS AGREEMENT UNDER ARTICLE 71.1 
157.  No statements were made under this agenda item. 158.  The Council agreed to revert to the matter at its next meeting. 
9  REVIEW OF THE APPLICATION OF THE PROVISIONS OF THE SECTION ON 
GEOGRAPHICAL INDICATIONS UNDER ARTICLE 24.2 
159.  The Chairman recalled that Article 24.2 required the Council to keep under review the 
application of the provisions of the section on geographical indications of the Agreement. The 
principal tool used to coordinate the review process was a checklist of questions contained in document IP/C/13 and Addendum 1, which a num ber of Members had submitted, but many had 
not yet completed. In addition, at its meeting in  March 2010, the Council had agreed to encourage 
Members to share information on bilateral agreements they had concluded relating to the 
protection of geographical indications, and to notify them to the Council.  
160.  As the question of GI protection remained of continuing interest and a point of discussion, 
Members were likely to benefit from a more comp lete and up-to-date picture. He therefore urged 
those delegations that had not yet done so to consider providing responses to the questions. 
Likewise, he encouraged those Members having already responded to the checklist to provide 
updates to the extent there had been any signif icant changes in the way that they provided 
protection to geographical indications. He added that, since there had been significant 
developments at the national and bilateral levels, it would be beneficial for Members to have up-to-date, accurate and geographically more represen tative material available as the basis of the on-
going review process.  
161.  In line with the Council's recommendation made in March 2010, he also encouraged any 
Member that was a party to any bilateral agreements related to the protection of GIs to share 
information on such agreements, if it had still not done so. 
162.  The representative of Chile said that, whil e his intervention would not concern the treatment 
of GIs in bilateral agreements, this was still the most suitable agenda item for conveying to 
Members that in July 2012, the Chilean Government had introduced the "Label of Origin" (Sello de 
Origen) programme, which aimed to promote the use and protection of Chilean traditional products by means of GIs, appellations of origin (AOs), collective marks and certification marks. 
163.  The purpose of this programme was to encourage entrepreneurship and development of 
production among local communities in Chile - particularly in regions far from business hubs - with 
the conviction that these types of industrial property rights could act as tools to foster the conservation of special traditional methods of manufacturing and production, while at the same 
time bringing local communities closer together and boosting the economic development of small-
scale producers throughout Chile. 
164.  He said that the launching of the "Label of Origin" programme was in accordance with and 
reaffirmed Chile's traditional position on GIs. The programme showed that it was possible to 
promote and protect GIs through a system that made use of all the categories of protection IP/C/M/71 
 
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  available in Chilean legislation, namely GIs, AOs, collective marks and certification marks. He 
added that the "Label of Origin" programme did no t only cover one level of protection but fully 
maintained and respected the two distinct levels of protection provided in Articles 22 and 23 of the TRIPS Agreement. He invited Members to co nsult the website established to promote this 
programme and its benefits amon g users at www.sellodeorigen.cl. 
165.  The Council took note of the statement made and agreed to revert to the matter at its next 
meeting. 
10  TENTH ANNUAL REVIEW UNDER PARAGRAPH 2 OF THE DECISION ON THE 
IMPLEMENTATION OF ARTICLE 66.2 OF THE TRIPS AGREEMENT 
166.  The Chairman recalled that, at its meeting in February 2003, the Council had adopted a 
decision on the "Implementation of Article 66. 2 of the TRIPS Agreement". Paragraph 1 of the 
Decision provided that developed country Members were to submit annually reports on actions 
taken or planned in pursuance of their commitments under Article 66.2. To that end, developed country Members were to provide new detailed reports every third year and, in the intervening 
years, updates to their most recent reports. Thos e reports were to be submitted prior to the last 
Council meeting scheduled for the year in question.  
167.  The third set of detailed annual reports und er the Decision had been presented to the 
Council's meeting in October 2009. At its meeting in June 2012, the Council had requested 
developed country Members to submit a fourth set of new detailed annual reports for the present meeting. The Secretariat had issued on 15 June an airgram (WTO/AIR/3956) to remind developed country Members of that request. 
168.  The Council has received new detailed annual reports from the following developed country 
Members: Japan; New Zealand; Australia; Norway ; Switzerland; Canada; the United States; and 
the European Union and individual member States, namely Austria, Belgium, France, Germany, 
Ireland, Slovakia and the United Kingdom. This documentation had been circulated in document 
IP/C/W/580 and addenda.  
169.  In addition, the Council had received a communication from the delegation of Angola on 
behalf of the LDC Group that contained question s posed by the LDC Group concerning the reports 
that had been submitted for the ninth annual re view and had been circulated in document 
IP/C/W/558 and addenda.  
170.  He also recalled a paper that the delegation of Angola had submitted on behalf of the LDC 
Group prior to last year's review that contained a proposal by the LDC Group for a format for 
reports on the implementation of Article 66.2. Th at submission had been circulated in document 
IP/C/W/561. 
171.  With respect to the purpose and conduct of th e review of this information, he recalled that 
paragraph 2 of the Decision on the Implementa tion of Article 66.2 of the TRIPS Agreement 
explained that the annual review meetings shall provide Members with an opportunity to pose 
questions in relation to the information submitted and request additional information; discuss the 
effectiveness of the incentives provided in promoting and encouraging technology transfer to least developed country Members in order to enable them to create a sound and viable technological base; and consider any points relating to the operation of the reporting procedure established by 
the Decision. 
172.  Since some of the information had been received only very recently, and most of it was 
available only in its original language, he said that he intended to provide an opportunity, at the 
Council's next meeting, for Members to make fu rther comments on the information submitted for 
this meeting that they might not yet have been able to study, and to comment any additional information that might yet be provided before that meeting. 
173.  He said that for the fifth year in a row, the Secretariat had organized, at the request by LDC 
Members, a workshop on transfer of technology under Article 66.2 back-to-back with the Council's 
end-of-year meeting. The workshop had been co nvened on 5 November. It had again brought 
together LDC and developed country experts to discuss this matter at a very practical level, IP/C/M/71 
 
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  building on the earlier workshops. It was his understanding that there had again been a 
constructive exchange of views, which had be en useful to both LDC and developed country 
delegations. 
174.  The representative of Haiti, speaking on be half of the LDC Group, said that the LDC Group 
wished to thank those developed country Members who had submitted their reports on the 
implementation of Article 66.2 of the Agreement and had remained engaged in this process. He 
also thanked the WTO Secretariat for organizing the fifth workshop on the implementation of 
Article 66.2 and expressed his appreciation of the level of participation of capital-based delegates 
of LDCs. The productive meeting had provided a good opportunity for exchanging views among 
developed Members and LDCs on the activities carried out under Article 66.2 and had created a better understanding how to improve the quality of this information for the beneficiary LDCs. 
175.  He said that it was important to recall that the Agreement established minimum levels of 
protection that each government had to provid e for IP of fellow Members. Furthermore, it 
contained the important principle that IP protection should contribute to technological innovation 
and the transfer of technology. According to th e Agreement, both producers and users should 
benefit, and economic and social welfare should be enhanced. The ultimate objective of Article 66.2 was to enable LDCs to create a sound and viable technological base for development. 
176.  In light of this objective, the monitoring mechanism for Article 66.2 established by the TRIPS 
Council Decision in 2003 had laid the groundwork  for improving the full implementation of 
developed Members' obligations to provide incentives to their enterprises and institutions that promoted and encouraged technology transfer to LDCs. Under these obligations, developed 
Members had to provide detailed annual update reports to the Council. 
177.  As the LDC Group continued to evaluate compliance of developed partners in order to 
maximize the gain and the efficiency of this c ooperation, a trend towards better and more detailed 
information, and an improved clarity had been observed over the years. However, a lack of 
uniformity and thoroughness of information had hindered progress and slowed the process. To remedy that situation, the LDC Group had submitted at the October and November Council 
meetings in 2011 a proposal on a uniform reporting format for developed Member submissions on 
the implementation of Article 66.2, which had b een circulated as document IP/C/W/561, dated 6 
October 2011. 
178.  He said that, judging from the recent work shop and from the analysis of some 2012 reports, 
the LDC Group had received positive reactions from a number of developed countries partners. In 
order to move the process forward, his delegation wished to propose that the TRIPS Council adopt the uniform reporting format for developed Member  submissions on the implementation of Article 
66.2 presented by the LDC Group in document IP /C/W/561. It would also be appreciated if 
developing country partners that were in a position  to do so could join this new reporting process. 
179.  He said that the LDC Group would consider th e adoption of the format as a turning point in 
the implementation of Article 66.2 and the impr ovement of the reporting mechanism and hoped 
that the Group would receive the support of all WTO Members. 
180.  The representative of Bangladesh said that  his delegation supported the statement made by 
Haiti on behalf of the LDC Group and thanked all developed country Members who had submitted 
reports. The new reports were markedly better than  the previous ones and his delegation was very 
much impressed by the interest and enthusiasm that had manifested itself during the recent workshop. While there may be ambiguity regarding what constituted technology transfer, it was 
unambiguous that under Article 66.2 incentives were to be provided to enterprises and institutions 
of developed Members. This was different from the technical cooperation to be provided under 
Article 67, which was relevant to both developing and least developed country Members. His 
delegation wished to request that developed country Members emphasize the assistance 
specifically intended for LDCs under Article 66.2, which was distinct from Article 67. The LDC Group had further provided a new format to facilitate the submission of the report. He said that his delegation thanked the developed country Members for their continued support. 
181.  The representative of India said that one of the important objectives of the TRIPS Agreement 
enshrined in its Article 7 was that the protection and enforcement of IP rights should contribute to IP/C/M/71 
 
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  the promotion of technological innovation and to the transfer and dissemination of technology. 
Developing countries in particular saw technology transfer as a part of the bargain in which they had agreed to protect IP rights. In this regard, Article 66.2 created a legal obligation for developed country Members to provide incentives to their enterprises and institutions to encourage 
technology transfer to LDCs. The Doha Decision on Implementation-Related Issues and Concerns 
further reaffirmed the binding nature of this obligation.  
182.  On the occasion of the tenth annual review, Members needed to reflect whether the legal 
obligations on developed Members through Article 66.2 had been effective in promoting and 
encouraging technology transfer to the LDCs, and in creating a viable technological base there. Had the developed countries fulfilled their obligations? If the effectiveness of Article 66.2 for LDCs was not clear, could the LDCs still be required to bear the considerable cost of protecting IP rights 
by implementing the provisions of the TRIPS Agreement? It was important, he said, to remember 
that if the LDCs were asked to implement the Agreement without a sound technological base, the technological gap between the LDCs and the rest of the countries would be further widened and 
they would be marginalized in the global economy. This would defeat the important objective of 
the Agreement, mentioned in its Preamble, wh ich recognized the special needs of the LDC 
Members in respect of maximum flexibility for the domestic implementation of laws and 
regulations in order to enable them to create a sound and viable technological base. Therefore 
Members, and especially LDCs, had a right to kn ow if there was sufficient evidence to prove 
whether the trade-off in Article 66.2 had indeed been effective.  
183.  He said that the motivated request to be presented by the LDCs under "Other Business" for 
the extension of their transition period beyond 2013 to implement the TRIPS Agreement had to be 
seen in this overall context. There was theref ore an urgent need to revise the monitoring 
mechanism set up by the TRIPS Council to find out whether Article 66.2 had been effective in 
inducing technology transfer beyond the busine ss-as-usual approach of most of the developed 
countries. His delegation would support and actively engage with any proposals from LDCs for effective monitoring of the obligations under Article 66.2. 
184.  The representative of the United States said that, like others, his delegation had welcomed 
the important and constructive workshop. With respect to the LDC proposal introduced by Haiti 
and by Angola on behalf of the LDC Group, he said the United States had reviewed that proposal closely and felt that US reporting was constantly being improved and refined, reflecting the 
priorities raised by LDCs at the workshop as well as in that proposal. While Members had a good 
exchange at the workshop, his delegation continued to have questions about the underlying rationale of several aspects of the proposal. Concerns remained also with respect to the 
unintended consequences of limiting the information that could be contained in those reports and 
the consequent impact on their effectiveness. For these reasons his delegation believed it best to 
continue with the current positive feedback loop where constant improvements were being made 
reflecting the LDCs' priorities and avoid imposing rigid strictures that might hinder rather than 
facilitate that important feedback. The United St ates would therefore wish to continue reviewing 
the proposal while in the meantime constantly informing its reporting based on the specific recommendations by LDCs in terms of programming  and specific needs that could be addressed 
better. 
185.  The representative of Australia said that her delegation was committed to assisting least 
developed Members in the area of technology transfer pursuant to the Council's decision on the 
implementation of Article 66.2. Australia, like others, welcomed the holding of workshops on this 
issue and had attended them since their inception.  The workshops provided a useful forum for an 
exchange of views to improve the understanding on both sides on how to prepare and read the 
reports. In presenting Australia's new detailed report for 2012, she said that her delegation had 
been mindful in producing it off LDC comments and questions on the previous reports. It provided information on the Australian Government's incentives and support to Australian institutions and enterprises to promote and encourage technology transfer to LDCs. It included examples of 
supported projects and activities to show the pr actical functioning of these incentives. In this 
report, technology transfer was defined broadly and was taken to include training, education and 
knowledge.  
186.  This year her delegation had made a particul ar effort to include programmes that support or 
provide incentives for projects or activities involving a specifically technical or technological component. Australia considered that the educatio n of LDC nationals and their training in the use IP/C/M/71 
 
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  and management of technological equipment co mprised two of the most effective means of 
transferring technology and knowledge, which was why a significant portion of Australia’s assistance was directed at these activities.  
187.  In response to the proposal for standardized reporting, she said that Australia supported 
efforts to improve the transparency of reportin g under Article 66.2. She had heard presentations 
on the LDCs' proposed standard format in the dedicated workshop on Article 66.2 on 5 November and welcomed further discussion and clarification on the elements of that standard format. Her 
delegation had considered the standard format an d would continue to do so over the next year. 
While in the 2012 report Australia had endeavoured to include information to address what had been requested in the template, it was not in a position to fully adopt the standard format for the 2012 report. Australia provided incentives for and supported technology transfer to LDCs in 
various ways, and the template would place undue constraints on its reporting, as full details were 
not always available on a given programme, or it might not fit easily into the standard format. Her delegation would, however, continue to welcome further discussion on this topic. 
188.  The representative of Canada thanked Haiti for its proposal and said that his delegation's 
report on the implementation of Article 66.2 had be en significantly improved this year to address 
the concerns articulated by LDCs, such as those mentioned at the workshop. Canada had updated 
its table of examples of technology transfer proj ects or programmes as suggested by the LDCs in 
document IP/C/W/561. He noted the fruitful discuss ions taking place in the context of the yearly 
workshops on the implementation of Article 66.2. However, his delegation believed that further discussion was required. There were still elemen ts of the proposal that could benefit from 
clarification, as had been highlighted by some of the questions asked at the workshop. Canada, 
therefore, did not believe that the time was ripe for Members to agree on a mandatory reporting format at this time. His delegation noted the fruitful discussions taking place in the context of the 
yearly workshop and believed that the workshop provided a good forum for further discussing this 
issue.  
189.  The representative of Japan thanked the Se cretariat for organizing the workshop and said 
that it had been very useful to improve coop eration with LDC Members and to enhance mutual 
understanding essential for the effective implementation of Article 66.2. Japan would continue to make best use of the reports to improve the bu siness environment conducive to the transfer of 
technology. His delegation was looking forward to working further with LDC Members in this 
context. 
190.  The representative of the European Union said that his delegation was committed to this 
review exercise and to the provision of incentives  for technology transfer under Article 66.2 with a 
view to helping least-developed countries create a sound and viable technological base. The EU 
contribution had been submitted at the beginning of October, and his delegation wished to thank 
the LDC Group for the initiative for the fifth workshop on this topic and the WTO Secretariat for 
having organized this event.  
191.  Regarding the proposal for a compulsory form, he said that his delegation welcomed this and 
was ready to adapt reporting to a format that ma d e  i t  a s  u s e f u l  a s  p o s s i b l e .  H o w e v e r ,  a s  t h e  
European Union had to compile 28 different initiatives and different sources of information, it 
would be extremely burdensome to respect a single format, as the content was clearly more 
important than the form. Thus, while his delegation was certainly ready to make amendments in the coming reports to approach the requested model, it was not ready at this moment to agree on 
a compulsory format. 
192.  The representative of New Zealand said that, as part of the annual report for 2012, New 
Zealand had gone through a process of re-evaluating the format for reporting and had made a 
number of changes to the format in an attempt to respond to the LDCs' requests, and to the 
feedback received at the technical assistance workshop in 2011. In particular, New Zealand had 
included an annex to its report, which included a number of the reporting elements in the LDCs' proposed format for reporting. The annex attempted to focus more on the objectives and expected 
technology transfer outputs for a number of initiatives detailed in our annual report. Obviously this 
reporting format was work in progress and her delegation looked forward to further feedback from the LDC Group on how the reporting format could continue to be improved. However, like others 
that had spoken, she said that New Zealand was not in a position at this moment to support a 
mandatory format for reporting principally because of concerns that adopting a format at this time IP/C/M/71 
 
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  might not be flexible enough to accommodate the range of activities that New Zealand included in 
its Article 66.2 report.  
193.  The representative of Switzerland thanked the Secretariat for organizing the workshop and 
said that it had been held in a constructive and forward looking spirit. He also thanked the LDC 
Group for its observations and comments. His delegation had introduced its new report at the 
workshop and wished not to repeat details about its content and format to which it had made several changes in an attempt to reflect some of the suggestions made by the LDC group. He said 
it had been interesting to participate in the discussion about the format proposed by the LDC 
Group. Switzerland was open to discuss proposals which aimed to make reporting more efficient and transparent. 
194.  He said his delegation might include further parameters from the LDCs proposed list in the 
Annex of its report, but a viable cost-benefit rati o needed to be ensured when asking everybody to 
compile lots of data and information, as the value added and the transaction costs needed to be appropriately balanced every time reports were drafted. At the same time, if an interested party or 
country required specific information about a programme or project, it should not hesitate to 
contact the people in charge at the address indicated in the annex of the Swiss 2012 report, who would be pleased to help and provide detailed information. 
195.  If the reporting format were to be standardiz ed, Members should still have some flexibility to 
put down their text according to their programmes. One parameter which his delegation might continue to include in future reports was the Policy objective and purpose, broken down into a few key messages, to also keep the report as lean as possible. There were other examples of 
parameters which seemed difficult to include fo r each and every programme: first the Government 
Agencies and Institutions addressed in developed countries, and second the Enterprises and Institutions eligible for incentives in LDCs. The reason why it could be fairly difficult to provide this 
information was that, depending on the concrete programme, there would be a long list of eligible 
institutions which still might not be comprehensive since certain enterprises and agencies would easily be forgotten and the list would be incomplete. Another reason for renouncing a parameter 
on eligible enterprises and institutions in LDCs was that those beneficiaries often cannot be 
identified due to the fact that work was being carried out via intermediaries. At least some of the beneficiaries at the end of the supply chain regularly remained unknown. 
196.  His delegation looked forward to continuing cooperation and dialogue with the LDCs and the 
WTO Secretariat on how to further improve Article 66.2 annual reports. 
197.  The representative of the Secretariat said he would dispense with a detailed report on the 
workshop because delegations had already well covered this in detail, and would instead focus on 
the practicalities that arise in the management of the notification information. The workshop was 
intended to bring together the three active parties in the monitoring process: the developed country Members who put considerable effort into collecting, assembling and formatting the 
information about incentives under Article 66.2; the LDC Members to whom this information was 
most directly addressed and intended for their consideration; and the Secretariat which was responsible for processing and managing the flow  of information. One aspect of the discussion 
concerned how effectively to manage that information.  
198.  He said that the Chair had already mentioned the practical considerations of how to deal with 
the continuing cost and management issues with respect to this kind of notification. This was an area where Members were investing considerable resources in the formatting, processing and 
translation of documentation because the information notified under this item was managed as 
formal TRIPS Council documents, some of which were quite extensive and the total amount of pages processed was very high. The question then was whether there could be practical steps 
taken to improve the collection, the management and the dissemination of this information, which 
really meant whether it was possible to move from documentation and a registration approach to an information management approach.  
199.  This would presumably involve Members agreeing if not on a common format then at least 
on agreed common elements in reported information. If there were movement in that direction, 
the Secretariat would be able to prepare a reporting tool that should facilitate the capture of information which in turn would certainly facilitate its management and enable something closer to IP/C/M/71 
 
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  a database approach at least for some elements of  reported activities and incentive schemes. This 
would not preclude the inclusion of more descriptive narrative material such as has been provided in the existing TRIPS Council documents. At this stage, if there was to be a process of consultation on this matter, the Secretariat would simply draw to the attention of Members that to the degree 
that there could be convergence on common elements as a part of at least the reporting process, 
this would enable a platform to be developed that would facilitate the flow of information, its accumulation, and its analysis. Whether Members would wish to move beyond a reporting and 
dissemination process that was restricted to the preparation of formal Council documents or 
whether an alternative information management approach would be possible would obviously depend on a broader set of issues before Members.  At this stage, he said, he simply wished to 
draw attention to that possibility and suggest that if there were to be consultations on this matter, 
some of these practical considerations could be taken up at that stage. 
200.  He said that the Secretariat welcomed any immediate observations, suggestions, or 
comments from Members on the way forward on this issue, bearing in mind that this was a very 
significant practical question and a cross-cutting  matter for the entire Secretariat. Processing 
official documentation, translating it in the official format and disseminating it in the current manner was an area of cost, and the Secretariat had been instructed to look at it systematically. 
While obviously the important process of re porting and disseminating information under 
Article 66.2 should not be driven by cost bu t by the needs of the Members concerned, the 
suggestion was simply that in focusing on those needs the Secretariat might be able to develop alternative ways of managing information that could enable the notification process to meet those 
needs more effectively and more efficiently.  
201.  The representative of Haiti said that, having heard the views of other Members, his 
delegation wished to underline that, for the LD C Group, development was closely tied, if not 
thoroughly entwined with technology and that the transfer of that technology was therefore a high 
priority. Consequently, the reporting requirements in question were very important to the LDC Group, as they were the only way to evaluate progress made in implementing Article 66.2. He said 
that reporting should serve a purpose and be worthw hile, rather than just an exercise in futility. 
He therefore asked the Chair to conduct consultations on the matter and requested for this matter to be put on the agenda of the next Council meeting. 
202.  The Chairman urged those developed country Members that had not yet done so to provide 
their reports as soon as possible and said that, at  the Council's next meeting, he would provide an 
opportunity for Members to make further comments on the information submitted for the present meeting, which they might not yet have been able to  study. He said that he intended to consult on 
the request made by the delegation of Haiti on behalf of the LDC Group that the Council adopt the 
proposed format for reports submitted by developed country Members under Article 66.2 contained in a communication by Angola on behalf of the LDC Group in document IP/C/W/561.  
203.  The Council took note of the statements made. 
11  TECHNICAL CO-OPERATION AND CAPACITY BUILDING 
204.  The Chairman recalled that the Council had agreed, at its meeting in June 2012, to hold its 
annual review of technical cooperation at the presen t meeting. He suggested that, in this context, 
the Council discuss also other issues relating to this agenda item, including LDC priority needs for 
technical and financial cooperation. 
205.  In preparation for this annual review, developed country Members had once more been 
requested to update information on their technical and financial cooperation activities relevant to 
the implementation of the TRIPS Agreement in ti me for the present meeting. Other Members who 
had also made available technical cooperation had been encouraged to share information on these 
activities if they so wished. On 15 June, the Secretariat had issued an airgram (WTO/AIR/3957) 
reminding Members of this request. In addition, intergovernmental organizations observers to the 
Council as well as the WTO Secretariat had also been invited to provide information. 
206.  The Council had received information from the following developed country Members: Japan; 
New Zealand; Australia; Norway; Switzerland; Canada; the United States; the European Union and 
individual member States, namely Austria, Bulgaria, Czech Republic, Finland, France, Germany, IP/C/M/71 
 
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  Hungary, Italy, Lithuania, the Netherlands, Sl ovenia, Spain, Sweden and the United Kingdom 
(being circulated in document IP/C/W/582 and ad denda). Updated information had been received 
from the following intergovernmental organiza tions: the WCO, FAO, WHO, UPOV, and OECD 
(document IP/C/W/581, addenda and corrigenda). Updated information on the WTO Secretariat's 
own technical cooperation activities in the TRIP S area could be found in document IP/C/W/577. 
207.  Furthermore, the Russian Federation had notified its contact point for technical cooperation 
on TRIPS, and the United States had updated the contact point it had provided earlier. The 
information on the Members' transparency t oolkit page had been updated accordingly. 
208.  As regards LDC needs assessments, he recalled that paragraph 2 of the TRIPS Council's 
2005 decision on the "Extension of the Transition Period under Article 66.1 for Least-Developed Country Members" provided that "with a view to  facilitating targeted technical and financial 
cooperation programmes, all the least-developed country Members will provide to the Council for 
TRIPS, preferably by 1 January 2008, as much info rmation as possible on their individual priority 
needs for technical and financial cooperation in order to assist them in taking steps necessary to 
implement the TRIPS Agreement".  
209.  Since the Council's meeting in June, Mali had submitted information identifying its priority 
needs (IP/C/W/575). Earlier, the Council had rece ived such information from six other Members, 
namely Sierra Leone, Uganda, Bangladesh, Rwanda, Tanzania and Senegal. 
210.  In addition to their regular annual reports on technical cooperation, since the Council's 
meeting in June, Japan and Canada had provided complementary reports specifically focusing on their technical cooperation activities for the benefit of LDCs (IP/C/W/572/Rev.1 and IP/C/W/579, 
respectively). He recalled that the European Union had provided such a complementary report to 
the Council's meeting in June (IP/C/W/568). 
211.  He recalled that, at the Council's meeting in June 2009, the LDC Group had requested the 
WTO Secretariat to arrange a series of events to discuss LDCs' priority needs and the coordination 
of technical assistance to respond to the needs identified by LDC Members. Following up earlier 
similar activities it had organized in response to this request, the Secretariat had held the previous 
week a three-day Symposium on LDC Priority Needs for Technical and Financial Cooperation. The 
purpose of the Symposium had been to bring together key representatives from LDCs, cooperating partners in developed countries and international an d regional organizations with a view to sharing 
experiences on the process so far, as well as explaining on-going activities and outstanding needs 
to complete the process. 
212.  He mentioned that, as part of a series of thematic workshops held under the auspices of the 
Committee on Trade and Development, the Secretariat had held a workshop on Aid for Trade and 
IP on 5 November. The workshop had been intend ed to highlight the links between IP, trade and 
development. 
213.  He also recalled that, in view of the on-going implementation of the recommendations for 
savings and more efficient use of resources made by the Budget Committee (WT/BFA/128), the 
Council, at its meeting in June, had invited the Secretariat to identify ways of facilitating the submission, processing and circulation of this information as well, and to consult with delegations at a technical level and report to the Council's present meeting. 
214.  The representative of the United States said that the US Government, working 
independently, as well as with other governments and international organizations, offered 
technical assistance on IPR protection and enforcement to countries around the world, including 
LDCs. The United States had submitted a report to the TRIPS Council describing these 
programmes, pursuant to Article 67 of the TRIPS Agreement. Regarding US programmes, in FY 2011, the US Patent and Trademark Office’s (USPTO) Global Intellectual Property Academy (GIPA) 
had conducted more than 140 training, technical assistance, and capacity building programmes for 
over 4,300 participants from 137 different countries. Most participants had come from developing and least developed countries.  
215.  He thanked the Government of Sweden for its generous support for the previous week’s 
Symposium on LDC Priority Needs for Technica l and Financial Cooperation, which had been IP/C/M/71 
 
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  extremely productive. Several LDCs had provided updates on the status of their TRIPS Agreement 
implementation. Many LDCs had participated in this programme and had expressed appreciation 
for the value of IP in supporting innovation and development of their economies. LDCs were progressing with their implementation of th e TRIPS Agreement. One point that had been 
emphasized, however, had been that even once laws were in place and administrative structures 
were set up, more work still needed to be done. For example, educational campaigns needed to be 
organized to increase awareness of IP. Judges and new officials at IP offices needed training on IP. 
The United States had many resources that could be useful for this work. He also said that the 
United States appreciated the needs assessments that had been filed. It would reach out to LDCs but would also appreciate LDCs reaching out the United States.  
216.  In this regard, important contacts for technical assistance in the field of IP included the 
following. For general training, a training database was available at http://www.usipr.gov/ . For 
educational campaigns, to discourage the use of illegal downloads and counterfeit products, the US 
Embassies should be of assistance. In particular, the Department of State website 
(http://www.state.gov/e/ eb/tpp/ipe/index.htm ) contained certain important information with 
respect to contacts as well as substantive assist ance. For more comprehensive assistance, the US 
Department of Commerce’s Commercial Law De velopment Program provided training to 
stakeholders responsible for IP enforcement and adjudication of disputes such as government 
ministries, customs officers, patent examiners and judges. CLDP also conducted programmes on IP 
Protection and its Impact on the Economy, Technology Transfer, IP Law Curriculum in Law Schools, and Public Awareness Campaigns. Similarly, the USPTO’s GIPA provided training to 
government officials responsible for IP acquisition,  enforcement and adjudication of disputes such 
as government ministries, customs officers, patent examiners and judges. Finally, he invited to LDCs reach out to him as the designated contact point for technical and financial assistance for 
implementation of the Agreement. 
217.  The representative of Uganda recalled th at Uganda had responded to the Council's 2005 
decision with submissions to the Council (I P/C/W/500 and IP/C/W/510). A detailed programme 
(Uganda Trade and Intellectual Property Progra m - UTIP) had been formulated from the needs 
assessment, outlining priority technical assistance projects within an overall national capacity building programme on trade, IP and TRIPS for Uganda. Uganda had had great challenges in implementing this programme. The Ministry of Trade, Industry an d Cooperatives could not secure 
funding to implement the activities as identi fied in the project document including the 
establishment of a secretariat. Funding received  had been ad-hoc and often not coordinated as 
earlier on expected. 
218.  Despite these constraints, progress had been made. The IP laws enacted since 2005 included 
(i) the Copyright and Neighbouring Rights Ac t (2006) and Regulations (2010); (ii) the Trade 
Secrets Act (2009); (iii) amendment of the Trademark Act (2010); and (iv) various regulations 
(2012). The following bills were before Parliament: (i) the Industrial Property Bill (2009); and (ii) 
the Geographical Indications Bill (2009).  
219.  Other activities included technical assistance and capacity building to the Uganda 
Registration Services Bureau in the following areas: (i) IP automation system for trademark 
registration; (ii) capacity building programme on IP policies for universities, some of which had 
resulted in some universities coming up with IP poli cies; (iii) training for several officers in the IP 
office and in the Ministry of Justice and for private practitioners in a Master's programme at Africa 
University and Turin; and (iv) the establishment of the Technology and Innovation Support Centre 
at the Uganda Registration Services Bureau.  
220.  Uganda had also received some assistance in developing a branding strategy for vanilla, 
Shea butter, cotton and sesame seed. This programme was aimed at improving market access of 
Uganda's unique products and would eventually ma ke producers appreciate the importance of IP 
as a valuable tool for market access.  
221.  Since 2005, Uganda had realized great achievements in making legal reforms, including 
u p d a t i n g  s o m e  I P  l a w s  a n d  r e g u l a t i o n s ,  a s  w e l l  a s  s o m e  l i m i t e d  t r a i n i n g  o f  I P  p r o f e s s i o n a l s .  
However, there were several activities that had been identified in the programme which were yet to be funded. Uganda still had weak institutions and institutional linkages; awareness was still very 
low; some laws were yet to be enacted; new laws and regulations had financial implications; and 
Uganda still had to develop the capacity and ability to use IP for development. Considering that IP/C/M/71 
 
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  there were some IP laws that had not yet been put in place, coupled with a weak technological 
base, Uganda would require time to implement the TRIPS Agreement fully. 
222.  The representative of the European Union said  that the EU had played a significant role in 
helping LDCs to fulfil their TRIPS obligations, including countries that had not yet submitted their 
needs assessments. Regarding the seven Members who had done so, the EU was in contact or had 
recently been in contact with all of them. The EU had funded technical assistance with Bangladesh, Uganda and Zambia. The EU had recently conducted two programmes in Uganda, the first one on 
strengthening public-private dialogue to update Ug anda's national IP policy legal and regulatory 
framework, a programme that had been develo ped between 2008 and 2011; and the second on 
technical assistance to the Uganda Ministry of Tour ism, Trade and Industry in the area of IPRs in 
2009.  
223.  The EU had recently offered assistance on IP technical cooperation and capacity building to 
Senegal and Sierra Leone. Also regional work ha d been funded, including with COMESA, OAPI and 
ARIPO. Furthermore, the EU had funded assistance in the ACP countries and overseas territories 
through the European Development Fund. He also mentioned economic partnership agreement 
components within the European Development Fund, such as with the Eastern African Community Support Programme; these programmes had been used to provide IP-specific assistance. Further 
details on these programmes were available in document IP/C/W/582/Add.7. 
224.  The representative of Switzerland said that the Symposium had allowed LDCs and developed 
country Members to share practical information wi th regard to the needs assessment, the further 
evaluation of the priority needs assessments an d the projects being implemented at national, 
bilateral, and multilateral levels. Switzerland was convinced of the importance and the benefits of 
the TRIPS Agreement for all Members, including LDCs. Likewise, he acknowledged the importance of technical and financial cooperation in order to assist LDCs in taking the necessary steps to 
implement the Agreement. Since a country like Switzerland could only provide a part of the 
assistance requested in LDCs' priority needs assessments, coordination among donor countries was important in order to ensure that all LDCs got assistance. 
225.  Besides bilateral cooperation projects carried out by donor countries under Article 67, it was 
critical that multilateral funding mechanisms such as the Enhanced Integrated Framework or the Aid-for-Trade initiative to which Switzerland contributed were used by LDCs and integrated into the implementation of their priority needs assessments in order to allow for sustainable results 
from technical assistance. Switzerland's technical cooperation activities in the context of the Article 
67 were detailed in its report to the Council.  
226.  Switzerland had responded to the needs assessments of Bangladesh (IP/C/W/546) by 
undertaking since 2010 several concrete steps to develop a comprehensive IP project with 
Bangladesh. The Swiss IP Office had conducted two missions in Dakar, funded by the Swiss 
Government, to design a co-operation project and to set up a project management structure. In 
dialogue with the Bangladeshi government agenci es, a project proposal had been developed and 
agreed with the main Bangladeshi stakeholders. The project was directly based on the priority needs assessments submitted by Bangladesh. Switzerland would assist Bangladesh in the formulation of IP policy as requested by it in its assessment (page 7, paragraph 39, in the table 
under point 1) and in the formulation of the legal acts and regulations related to the protection of 
traditional knowledge, traditional cultural expressions as well as geographical indications.  
227.  Switzerland planned to support Bangladesh in capacity building for government officials and 
academics through providing specialized training. This activity would cover different IP areas, 
including training for international negotiations, and would be devoted to different target groups, 
for example to university, research and scientific institutions. The Swiss Secretariat for Economic 
Affairs was funding this project over a period of three years with CHF 1,000,000. As a next step, a 
Memorandum of Understanding (MoU) about the pr oject implementation between Switzerland and 
Bangladesh should be signed. This was a necessary formality for starting the implementation of the project and to release the project funds in Swit zerland. He was confident that this significant 
step would soon be taken by the Government of  Bangladesh and looked forward to a fruitful 
cooperation with Bangladesh in the field of IPRs and implementation of its priority needs assessment.  IP/C/M/71 
 
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  228.  The representative of Japan said that detailed information on Japan's technical cooperation 
activities was available in its report to the Co uncil. Japan had been considering LDCs' submissions 
on priority needs for technical and financial cooperation in order to assist them in implementing the TRIPS Agreement. Japan and LDCs shared the view that it was important to integrate IPR 
capacity building needs in the overall developing strategy. Japan would continue to make efforts to 
assist developing country and LDC Members in  taking necessary steps in the future.  
229.  The representative of Australia welcomed the Symposium that had allowed her delegation to 
share details of Australia's technical cooperation and capacity building. In its report to the Council, 
Australia had provided detailed information on its technical co-operation with developing countries and LDCs to assist them to develop their IP regime s and to build capacity in a range of IP-related 
areas. Australia had fulfilled its obligations under Article 67 through multilateral, regional and 
bilateral programmes and activities. Many of these were focused in the Asia-Pacific region. A 
particular highlight this year was $A2 million donated to WIPO to assist LDCs and developing countries to improve their IP systems. As from 2012, Australia was also increasing its IP 
engagement with Africa, including through cooperation with the African Regional Intellectual 
Property Organization (ARIPO) and South Africa.  
230.  The representative of Bangladesh said that  the Swiss Government had undertaken a project 
to formulate Bangladesh's national IP policy and in novation strategy and policy for the protection 
of traditional knowledge and traditional cultural expr ession and for capacity building for IP officials. 
That project was going to be implemented after sign ature of the MoU. The total cost of the project 
would be around CHF 1,000,000. He hoped that this project would further enhance the capacity 
building necessary to establish a viable and suitable IP regime in Bangladesh. Switzerland had 
always been a trusted partner in development. He also thanked WIPO for undertaking another 
important project which would also contribute greatly towards development in Bangladesh. In 
2008, with support from the European Commission and WIPO, the Government had launched a 
three-year project to make IP laws TRIPS-comp liant through enacting new laws and amending 
existing ones.  
231.  The representative of the Secretariat high lighted a number of broad themes that emerged 
from its report on technical cooperation activities (IP/C/W/577) that reinforced developments that 
had taken place over several years. The first was an increasing emphasis on partnerships with other intergovernmental organizations and other partners. This was extremely important in terms 
of coordination, improvement of programme design and delivery, supporting logistics, enhanced 
programme delivery and resource mobilization at a time when technical assistance resources were under some pressure. The second was to respond to  an increasing demand to situate IP law and 
policy in context of the broader social and economic  development or of a specific policy area such 
as environmental technology or public health.  
232.  These trends were manifest in two flagship activities that continued to be a major focus of 
the technical cooperation programme: the Advanced Course on IP and the Colloquium for teachers 
and researchers in IP. Both programmes drew from a wide range of expertise and policy 
perspectives from intergovernmental officials, na tional delegates and NGO and industry experts to 
situate IP issues in a broader context but also to draw on a wider range of practical experience and 
perspectives. In each case, the focus was on strengthening developing countries' capacity in a 
sustainable way so that the beneficiaries of technical cooperation had a stronger capacity to analyze and work through available legal and policy options and synchronize the implementation of 
international standards with their own social and economic development prio rities. In light of the 
feedback, he expected these two trends to continue. The provision of technical assistance was driven by the evolving demand and requirements  of developing country Members who were its 
primary recipients. 
233.  Turning to the management of documentation re lating to technical cooperation, he said that 
formatting, translating and distributing it involved a heavy workload at a considerable cost. It was an open question whether Members preferred to pr ovide and to receive the information in such a 
format. He drew attention to the global trade-related technical assistance database developed by 
the WTO Institute for Training and Technical Cooperation as a means of facilitating reporting and accessing information on technical assistance activities. This database was in the process of being 
updated in a revised format and would open up the possibility of Members, if they so chose, to 
make use of it to report the details of their technical cooperation activities. This would enable easily searchable and reportable data to be available on the whole range of technical assistance IP/C/M/71 
 
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  activities in the area of TRIPS while also leaving open the possibility for the kind of narrative 
descriptive reporting that was made available to the Council through the current documentation. This could be a useful supplement to the cu rrent process that would ease some of the 
documentary logjam that the Secretariat currently experienced and facilitate the flow of 
information in a way that would ease the burden of all three parties involved, including those 
involved in reporting, those involved in tracking and monitoring the reporting and following up on programmes available and finally, the Secretariat as the manager of that information. The 
Secretariat was available for anyone who wished to have a demonstration or, more informally, to 
look at that system to assess its possibilities.  
234.  The Symposium that had taken place the prev ious week was the culmination of a three-year 
programme developed with the guidance of the LDC Group that had involved a series of three 
Geneva events and three regional workshops. The emphasis throughout had been very practical in 
character, focusing on finding ways of better coordinating the flow of information and enabling more efficient matching of the demand side, i.e.  the priority needs articulated by LDC Members, 
and the supply side, i.e. the technical assistance programmes made available by developed 
country Members and by intergovernmental organiza tions. Hence a particular emphasis had been 
on bilateral consultations, which provided an op portunity for LDC Members to go through in some 
detail the outstanding needs that had not been addr essed and to look for ways of fulfilling those 
needs in a practical sense.  
235.  There had been several outcomes from this three-year process and from the Symposium in 
particular. One of them was the information resource that was currently under development as a 
tool for the LDC Group to address the difficulties they faced in this area. There was a large amount 
of reports and notified information, both on th e part of LDC Members and on the part of their 
technical co-operation partners. But the extent of this information was so great that it could be 
difficult to have an overview and to understand the data in a practical sense. The information 
resource would cover the currently reported IP-related policy and measures in LDC Members, based on existing notifications. In particular, it would cover the currently reported programmes 
and resources that could be drawn on to assist LD C Members in identifying their individual priority 
needs, the current status of responses to the ne eds identified by LDCs, including projects that 
were currently underway and additionally the repo rted programmes of developed country Members 
and intergovernmental organization that might be relevant to the follow up and to the provision of 
the technical assistance responding to the needs identified by LDCs. The information resource 
would harvest a great deal of the detailed information that had been shared in the course of the previous week and was intended to be made ava ilable to LDC Members in a usable and accessible 
form.  
236.  In addition, the discussion on the information shared about the practicalities of undertaking a 
needs assessment process of mapping specific TRIPS provisions across areas of economic and 
social development priority, and the practical lessons learnt in the needs assessment process 
would be captured in a guidebook which had been under development for some time in this process again as a practical resource for LDC Members to use as they wished.  
237.  Furthermore, as a result of the Symposium th ere was interest in continuing follow up on the 
needs assessments that had been filed and in a number of Members also who were well advanced 
in the process of preparing for or actually undertaking their needs assessments. The Secretariat would continue to follow up in a more informal way to close the loop as far as possible to ensure 
that the available resources could be focussed on  the individual priority needs identified by 
Members. To facilitate this, partnership with intergovernmental organization partners, most relevantly WIPO, UNCTAD and, in the public health area, WHO, but also with developed country 
Members, would continue to be very important. 
238.  He expressed his appreciation to the Government of Sweden, which had provided an 
important supplementary contribution to the Global Trust Fund to enable the Secretariat to finance the participation of a much wider range of capital-based officials from LDC Members than would 
normally have been possible for this kind of ex ercise and therefore had enhanced the relevance 
and the practical reach of the Symposium. In a ddition, the Government of Sweden had financed 
the preparation of the above-mentioned information resource. He also expressed his appreciation 
to the delegates and especially the LDC Group who had participated so actively and effectively in 
the Symposium as well as the representatives of intergovernmental organizations who had contributed to the high-quality dialogue. IP/C/M/71 
 
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  239.  The representative of the World Health Organization said that WHO technical co-operation 
activities were largely demand-driven and included providing policy and technical guidance to its 
member states, transferring medical technology to facilitate local production of essential medical products, training and enhancing capacity as well as direct country support. WHO's mandate was 
derived from the Global strategy and plan of acti on on public health, innovation and intellectual 
property as well as other relevant resolutions adopted by the World Health Assembly. The Global 
strategy and plan of action observed the need fo r more R&D related to type 2 and type 3 diseases 
and the specific research in development needs in developing countries in relation to type 1 
diseases. It highlighted the need to explore a ra nge of incentive mechanisms to stimulate such 
R&D, including, where appropriate, addressing th e delinkage of the cost of R&D and the price of 
health products. Based on this mandate, a consultative expert working group (CWG) had been 
established in 2010. The CWG had collected and analyzed proposals on how to increase such R&D 
from various sources and examined the appropriateness of different R&D financing approaches. The CWG had come up with a number of recommendations for further action, including a global 
framework on R&D, open approaches to R&D and innovation, pooling funds for R&D on an 
international level, direct grants to companies, milestone prices and end prices and patent pools.  
240.  To further analyze the CWG report and the feasibility of the recommendations, WHO member 
states had decided to hold a meeting in Geneva at the end of November 2012 to discuss any 
actions to take regarding research coordination  and financing monitoring of R&D expenditures. 
Public health interests had to be adequately taken into account in the formulation of national policies and legislation on trade and IP, including through the implementation and the use of 
flexibilities provided by the TRIPS Agreement.  
241.  The WHO, WIPO and WTO strived to effectively coordinate their work in the field of public 
h e a l t h  a n d  I P  t o  f o s t e r  t h e  u n d e r s t a n d i n g  o f  p u b l i c  h e a l t h  p o l i c y  a n d  I P  a n d  t o  i n c r e a s e  t h e  
efficiency and capacity building in technical co-operation undertaken by the three Organizations. 
Within the scope of this trilateral collaboration,  the three Organizations had organized a series of 
joint technical symposia to enhance the dialogue among the relevant organizations and to provide 
a platform for exchanging information and experiences. Activities also included the annual WTO 
Workshop on IP and public health that had already been mentioned by the WTO Secretariat. This activity took place every year in October in Geneva. This Workshop organized in collaboration with WIPO and WHO was an excellent example of how the three Organizations were working together 
and were approaching the intersections between public health and IP policy. Every year, WHO 
provided substantial support in the organization, including presentations relating to public health policy, data on access to medicines and prices, non-communicable diseases, regulatory questions, 
bilateral free trade agreements, and socially responsible licensing policies. In 2012, one full day of 
this workshop had taken place at the WHO.  
242.  Currently the three Organizations were also collaborating on a joint study on promoting 
access and medical innovation intersections between public health, IP and trade. This publication 
aimed to inform policy debates from an empirical perspective on the relationships and interactions 
between IP, trade and the dynamics of access to and innovation in medical technologies. 
243.   Within the context of the implementation of  the Global strategy and the plan of action, the 
WHO was also leading an EU supported project on local production to increase access to medical 
products in developing countries. The project had involved a number of partners, including the United Nations Conference on Trade and Development (UNCTAD) and the International Centre for 
Trade and Sustainable Development (ICTSD). Phase 1 of the project had concentrated on 
identifying the main challenges and obstacles to local production and related technology transfer for medical products in developing and least-developed countries. The concluding output of phase 
1 was a framework paper launched at a seminar held at the European Parliament in October 2011, 
which called for a harmonized approach requiring coherence across both industrial and health priorities. In Phase 2, a range of activities wo uld be undertaken with this framework that would 
include country-based policy analysers to identify policy coherence across industrial and health 
policies, promotion of local production, development of a price comparison between imported and 
locally produced medicines and training and capacity building to work with national regulators and local producers.  
244.  Upon the request and in collaboration with WHO regional and country offices and relevant 
international organizations, WHO also provided technical and policy support in framing national policies, laws and regulations to favour application of management of IP in a manner that IP/C/M/71 
 
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  maximized health-related innovation and promoted access to health products. Support was 
directed to assisting member states in devising ways to safeguard public health interests while adhering to their obligations under international trade agreements. More ample information on technical cooperation activities under the WHO programme on public health and IP could be found 
in document IP/C/W/581/Add.2. 
245.  The representative of Haiti, speaking on behalf of the LDC Group, thanked the Government 
of Sweden for the support provided for the Symposium. He said that only seven LDCs had been in 
a position to present a paper on their priority needs. This showed that comprehensive assistance 
could result not just from a demand-driven process but also from a truly interactive process between willing co-operation partners. He expressed his appreciation for the technical co-operation and capacity building received by LDCs under Article 67 and thanked all the partner countries 
involved. He hoped that this programme could be  sustained, enhanced and extended. He also 
invited developing countries that were in a po sition to do so and especially the emerging 
economies to join the process. 
246.  The Chairman urged Members who had not yet done so to provide updated information on 
their technical co-operation activities. He noted that some of the information had only been 
received very recently and most of that was so far available only in its original language. He said 
that it was, therefore, his intention to provide Members an opportunity at the Council's next 
meeting to make further comments on the information submitted for this present meeting that they might not yet have been able to study. He  also urged those LDC Members that had not yet 
provided information on their individual priority needs for technical and financial co-operation to do 
so. 
247.  The Council took note of the statements made and agreed to revert to the matter at its next 
meeting. 
12  LETTER FROM THE CHAIR OF THE GE NERAL COUNCIL CONCERNING WAYS TO 
IMPROVE THE TIMELINESS AND COMPLETE NESS OF NOTIFICATIONS AND OTHER 
INFORMATION FLOWS 
248.  The Chairman recalled that, at its past few meetings, the Council had had on its agenda the 
letter from the Chair of the General Council concerning ways to improve the timeliness and 
completeness of notifications and other information flows in the area of its responsibility. In order to facilitate the Council's consideration of that issue, the Secretariat had presented to the October 
2009 meeting a factual background note (IP/C/W/543) it had prepared at the Council's request 
that summarized the relevant procedures and provided information on the use of those procedures. It also contained suggestions on how to improve the transparency and user-
friendliness of the notification system. Furthermor e, at the subsequent meeting, the Secretariat 
had orally reported on further developments in that area. At its last meeting, the Council had agreed to revert to the agenda item at the present meeting so as to provide Members with a 
further opportunity to share any comments that they might have on the matter, and also to allow 
the Secretariat to inform the Council on any further enhancements to its services improving the transparency and user-friendliness of the notification system. 
249.  The representative of the Secretariat, updati ng his earlier reports, said that the immediate 
focus had been to move towards full digitization of all notified material. The Secretariat was 
working with an information technology project to finalize the backlog of notifications, the objective being, as a minimum, that all notified materials would be readily available in text 
searchable form. In addition, the Secretariat was looking at ways of presenting notified materials 
in a more user-friendly way on the WTO website. Specific examples of these included the contact 
points under Articles 67 and 69 which had been hard to locate and rarely used. On the basis of the 
existing materials, these would be presented in a way that was more appropriate for a contact 
point list. The material was notified in formal documents in the conventional manner but then was made available in a more web-friendly format more suitable for consultation and everyday use as a set of contact points. A tentative structure would be developed for an improved web interface to 
access other notified materials, including notified laws. There was a particular impetus in this 
regard in that there had been a marked uptake in  the rate of notifications made by Members that 
necessitated more effective management of these important documents. As an interim step, the 
Secretariat would be developing a pilot level suggested framework for accessing notified materials IP/C/M/71 
 
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  online and at an appropriate stage consulting with delegations on how best to structure that for 
their practical use.  
250.  Several Members were following the practice when notifying their laws to provide a brief 
summary of the essence of the la w or the amendment to the law th at had been notified. This was 
a further example of a way that the user-friendliness of notification could be enhanced. Work was 
carried out with colleagues in the Information Technology Solutions Division to develop some suggested ways of managing the existing materials and subsequent notifications so that they 
would be more useful and at the same time dealing with the practical costs of reducing the cost of 
processing and reproduction. He hoped to be in a position to present a pilot project early in the new year. 
251.  The Chairman said that, as requested in the letter from the Chair of the General Council, he 
would inform the Chair of the Trade Policy Review Body of the results of the continued 
consideration by the TRIPS Council of the matter. He noted that this matter was closely related to the implementation of the recommendations for sa vings and more efficient use of resources made 
by the Budget Committee (document WT/BFA/128). He was continuing to informally explore with 
delegations further ways to improve cost-effectiveness. 
252.  He suggested that, rather than maintaining this as a separate agenda item, the Council 
instead request the Secretariat to inform the Council at its future meetings on any further 
enhancements to its services improving the tr ansparency, timeliness, completeness and user-
friendliness of the notification system under the Council's regular item 1 relating to notifications under TRIPS in general. Also Members would be free to make any further comments on the 
operation of the notification system under that item. Any specific steps could also be reported 
through the regular channels. 
253.  The Council took note of the statements made and so agreed. 
13  INTELLECTUAL PROPER TY AND INNOVATION 
254.  The Chairman said that this item had been put on the agenda at the written request by the 
delegations of Brazil and the United States. 
255.  The representative of the United States said that his delegation was pleased to join with 
Brazil in sponsoring this item on the agenda. Innovation was a common objective shared by all 
whether as innovators or consumers or as governments. Innovation offered tremendous potential not only to build businesses, to generate revenue and to create jobs but also to address critical 
global questions and challenges as innovation could improve living standards. The objective of the 
two delegations was to have an exchange of information on national innovation strategies and the role of IP protection played in fostering innovation. Their hope was that by sharing national 
experiences Members might contribute to the mutu al goal of providing stable and predictable 
environments to promote and benefit from innovation.  
256.  Innovation policy in the United States focused on investing in the building blocks of 
innovation and promoting market-based innovation . It recognized that private sector was the 
engine for innovation and that government played an important role in supporting such innovation. US resources were thus directed at educating st udents with 21st century skills, strengthening and 
broadening fundamental research, building and maintaining physical infrastructure and developing 
an advanced information technology eco-system. The US Government might make investments in 
R&D to encourage basic research whose commercial potential might take decades to be realized. For example, the first fully electronic digita l computer was funded in the 1940s by the US 
Government, while the first commercially successful  computer with modest sales of 1,800 units 
was sold only in the 1950s. The rewards of this investment were still being enjoyed.  
257.  The development and commercialization of IP in connection with government-funded R&D 
had been significantly enabled by US federal legislation known as the Bayh-Dole Act, which had 
been studied and emulated by many other jurisdictions. Regarding the promotion of market-based innovation, the United States employed a variety of  mechanisms to reduce the risk inherent in the 
innovative process. Those mechanisms included tax credits for research and experimentation, 
support and tax incentives for entrepreneurs, streamlining regulatory review processes, innovation IP/C/M/71 
 
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  incentives such as funding of prizes and instituting a stable, predicable, and transparent system 
for the protection of intellectual property rights (IPRs). Those and other policies were designed to mobilize inventors, whether working in government laboratories, office parks or home garages.  
258.  The US National Aeronautics and Space Agency's (NASA) experience on fostering innovation 
to address specific challenges was instructive. NASA had launched an innovation competition to 
develop a forecasting logarithm to protect astronauts from radiation exposure in space. Over 500 participants from 53 countries had entered the competition. NASA had received a solution that 
exceeded its requirements from a retired radio frequency engineer in New Hampshire. The winner 
had never worked for NASA nor responded to past government requests for proposals. However, 
his winning approach forecast solar proton events with 85% accuracy.  
259.  Fostering market-based innovation was not only about advancing innovation through 
promoting capitalization and a supportive regu latory environment, but also about driving 
commercialization. Without a marketplace of ideas that catalyzed commercialization, the social benefits of innovation to consumers would not be fully realized. Stable and predictable IP 
protection provided another indispensable incentiv e to innovation by rewarding the risk investors 
take. Too many ideas fell prey to inadequate funding, theft and failed commercialization and 
diffusion. IP provided a critical safeguard, particularly in economies that relied heavily on 
innovation.  
260.  He explained the case of a farmer and business man working in Kampala, Uganda who used 
IP to promote innovation and capture the value addition of roast coffee, so that his community benefitted from selling high value roast coffee rath er than unprocessed raw beans. To provide such 
a new product to the community, many new services  and practices had been introduced, including 
banking services, terracing to conserve water, pulping machines to clean the beans and a new organizational structure of purchasing beans from farmers. Those improved business processes 
alone had yielded additional returns for the coff ee growers, but in addition, this entrepreneur 
marketed the product with a brand, which would develop a reputation that appreciative consumers could seek out for future coffee purchases. The prot ection of this individual's innovation, and those 
of his community, by IPRs such as trademarks and unfair competition protection, helped to ensure 
that the community could continue to benefit from these innovations.  
261.  He said that to maximize such innovation, IP systems also benefitted from refinement and 
improvement, including through promoting recognized  best practices. The recent US enactment of 
the America Invents Act (AIA) exemplified seve ral best practices. Under the AIA, the US 
Government had taken steps to significantly reduce patent application backlogs and otherwise streamline the patent application process. Other important best practices included promoting 
patent quality and licensing to enable IP systems to optimize innovation. By ensuring the 
registration of high-quality patents, IP authorities preserved the integrity of the public domain and promoted well-defined patents to foster continued innovation. Disclosure of innovations through 
high-quality patents combined with patent licensing allowed inventors to lawfully borrow and 
cross-fertilize knowledge in order to advance addition al innovation. To ensure that the benefits of a 
modern system of high-quality patents were broadly available, the AIA also included a pro bono programme designed to assist financially under-resourced independent inventors and small 
businesses. Through the programme, the US Pate nt and Trademark Office worked with and 
supported IP law associations around the United States to provide advice on patent applications to inventors and small businesses within certain income thresholds. Additional best practices for pro-
innovation patent systems included a first-to-file system which had long existed in major 
jurisdictions around the world. With the adoption of the AIA, the United States had now joined the international consensus. Patent grace periods repr esented another innovation best practice. After 
innovation often came the critical step of securing funding to actually grow a business, which 
meant showing investors what had been developed and putting out that information while also preparing a patent application. In the United States, IP was often a core asset of these innovative start-up companies. Thus, a grace period was one example of an innovation-friendly patent system 
feature that was critical to 21st century innovation.  
262.  The US Government had another initiative called the Patents for Humanity Programme. This 
initiative was part of the President's global de velopment agenda and provided business incentives 
to spur increased participation by the patent community in confronting global challenges by 
rewarding those who applied their patented technology to address humanitarian issues among IP/C/M/71 
 
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  impoverished peoples around the world, including with respect to medical technology, food and 
nutrition, clean technology and information technology.  
263.  Finally, he said that while governments could significantly enhance national innovation, 
including through IP awareness and an emphasis on quality, it was necessary to avoid the 
temptation of policies that degraded national innovation environments rather than fostered 
innovation itself. Innovation policies were best when they provided stability and predictability, including through IP systems. However, measures  such as domestic manufacturing requirements 
and other industrial policies, whether implemented through or alongside IP systems, could add to 
the risk inherent in innovation, deter capitalization, imperil the rule of law and ultimately undermine the goal of promoting innovation.  
264.  Localization and barriers to trade could take a variety of forms, including, among others, 
local content requirements, subsidies contingent upon the use of local goods, mandates to 
purchase domestically manufactured goods, preferences to domestic IP right holders, and measures to force technology transfer. Countries were putting these measures into place in order 
to meet other domestic objectives but these requirements had harmful consequences for trade and 
investment as well as for an economy's long-term economic growth goals, including innovation. And many countries had recognized the negative impact that such policies could have on 
innovation. For example, in November 2011, leaders of the economies of the Asia-Pacific Economic 
Cooperation Forum in Honolulu committed to implement policies that promote effective non-discriminatory and market-driven innovation policies in the Asia-Pacific region. Specifically APEC Members had agreed to actively enforce IPRs, refrain from imposing technology transfer 
mandates, promote adoption of global standard s, implement transparent and non-discriminatory 
government procurement policies and minimize th e trade-distorting impact of information and 
communication technology policies, including priv acy and security. The US delegation commended 
these principles for study by interested WTO Members; they could be found on the website: 
www.apec.org as Annex A to the 2011 APEC leaders' declaration.  
265.  In conclusion, he said that the US delegation had outlined a variety of components of an 
innovation strategy, including, but not limited to, IP protection. With the assistance of the IP 
system, US scientists and researchers could see their important innovations develop into new medical treatments, plant varieties, energy effi cient technologies and communications equipment 
that would be needed in the future. He said that his delegation looked forward to hearing from 
o t h e r s  a s  t o  w h a t  m e a s u r e s  t h e y  w e r e  t a k i n g  t o  h e l p  i n n o v a t i o n  f l o u r i s h  a n d  t h e  r o l e  o f  I P  i n  
supporting innovation. He said that he hoped that Members could learn from each other's experiences and could all benefit from the resulting innovation. 
266.  The representative of Brazil said that when  Brazil had asked for an item on "Intellectual 
Property and Innovation" to be included in the agenda of this session of the TRIPS Council, 
together with the US delegation, its primary intention had been to help set the stage for a debate, 
without prejudging any outcome. That debate was,  in his view, necessary and timely. The interface 
between innovation and IPRs was being increasingly  discussed in the press, in universities, and in 
parliaments, particularly in developed countries. The issue was also being hotly contested in the courts. The general public were also voicing opinions, and public policy makers were reconsidering 
the broader question of the scope and depth of di sciplines for protection of IPRs, especially, but 
not only, in the area of enforcement of copyrights in the digital environment. 
267.  These issues were not being properly discussed at the WTO, or in WIPO. It was time to do so 
as possibly the only certainty, in the current time of persistent uncertainties about the world 
economic outlook, was that sustained global economic growth would depend on the quick and effective conversion of innovation into gains in productivity and welfare. In a new book recently 
published by the Peterson Institute of Internationa l Economics entitled "Private Rights and Public 
Problems: the Global Economics of Intellectual Property in the 21st Century", Professor Keith E. Maskus said "We live in a global knowledge economy and the key to 'winning the future' is to excel at turning what we discover and learn into marketable new products and technologies. Innovation, 
adaptation, and the use of new technologies are the primary drivers of growth within economies 
and across international borders."  
268.  He said that this agenda item had been phrased in broad terms, "Intellectual Property and 
Innovation", in order to allow any Member to bring its own perspective to the debate. The Brazilian 
delegation saw the term "intellectual property" as referring to the full body of provisions of the IP/C/M/71 
 
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  TRIPS Agreement. The concept of innovation seemed less clear. The Agreement itself referred to 
innovation only once, in its Article 7 (Objectives), in which the noun "innovation" was qualified by the adjective "technological". Thus, the text of the Agreement did not refer to other forms of innovation.  
269.  The Agreement used invention instead of innovation several times in Section 5, (Patents), 
especially in Article 27 (Patentable Subject Matter) and Article 29 (Conditions on Patent Applicants). This implied that invention was a more clearly circumscribed and stricter category 
than innovation, and that inventions alone were eligible for patent protection. Indeed, innovation 
was a much broader concept as recognized, for example, in the definition contained in the 2012 issue of "The Global Innovation Index", a joint re port and ranking published yearly by the INSEAD 
Business School and the World Intellectual Property  Organization (WIPO). That report recognized 
that the definition of innovation had broadened; it was no longer restricted to R&D laboratories 
and to published scientific papers. Innovation wa s more general and horizontal in nature, and 
included social innovations as well. Currently, innovation capability was seen more as the ability to 
exploit new technological combinations and embraced the notion of incremental innovation and 
innovation without research. 
270.  He said that any in-depth discussion on this  topic must be based on the realization that the 
granting of exclusive IPRs could only be justified to correct a potential failure in the markets for 
technology and knowledge. That correction of market failure entailed costs for society. By establishing monopolies, however provisional they might be, protection of IP could impair market efficiency in allocating factors of production and other resources. To compensate for the possible 
costs of misallocation, the IP system demanded, in return for the granting of exclusive rights, full 
disclosure of the know-how of the protected invention in such a way that society as a whole might benefit from it and build upon it. This essential trade-off in the patent system had another 
component: that inventions accorded such rights must be, according to Article 27 of the TRIPS 
Agreement, novel, useful and non-obvious. Howe ver, the manner in which these three conditions 
were transposed into national legislation and regulations remained one of the most intractable and 
divisive issues in the current international patent system. 
271.  Against this background, the greatest chal lenge for public policy makers was arguably the 
design for a theoretically "optimal" system that would be capable of generating incentives for 
investment in innovation while at the same time minimizing losses caused by the granting of IPRs. 
The challenge was compounded by the fact that IP was far from being the single element driving 
innovation. It was only one in a larger mix of different tools to promote innovation. The Global Innovation Index, for example, referred to the impo rtance of linkages, the right infrastructure for 
innovation, and collaboration among different inno vation players. Along with access to knowledge, 
these were ever more important ingredients of innovation. It also referred to innovation eco-systems that had become more complex and were now built on more internationalized, 
collaborative, and open innovation models and know ledge markets. Finally, the report recognized 
that experiences and lessons in designing policies to promote innovation were still scarce.  
272.  Innovation was heavily influenced by factors other than IP, such as the industrial capacity of 
a country, the quality of its education, and access to raw materials. Similarly, the level of 
protection afforded by the IP system was not the only element stimulating technology transfer to 
developing countries. The importance of the receiving country's capacity and skills to absorb that technology could not be underestimated. It followed that the mere increase in the degree of IP 
protection and enforcement rules did not, in and of itself, result in higher levels of innovation 
output. Thus, IP must be placed within the over all framework of public policies for innovation. 
273.  He said that exceptions and limitations had a key role to play in calibrating national IP 
systems in such a way that individual goals of each country could be realistically pursued and 
eventually met. Other mechanisms to mitigate the potentially adverse impact of IP protection had to do with containing its effects on key areas such as public health and in the interface with competition policy. If it was true that a properly ca librated IP system was likely to play a positive 
and indeed key role in promoting the technologi cal and social development of a country, then a 
dysfunctional system might prove an impediment to  innovation. The granting of frivolous patents 
might do enormous harm to R&D activities and disrupt the necessary flows across innovation 
chains. This was especially true at present, when most meaningful inventions were the combined 
result of the integration of a series of small innovations increasing efficiency or productivity only incrementally. Patent protection granted to a series  of incremental innovations could in fact create IP/C/M/71 
 
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  uncertainty and thereby prevent breakthrough inventions from being made. An unbalanced IP 
system was particularly negative in the area of public health and access to medicines, in which the preservation of the flexibilities contained in the TRIPS Agreement, as reaffirmed in the Doha Declaration on the TRIPS Agreement and Public Health, was more important. 
274.  From the perspective of developing countri es, the Development Agenda approved by WIPO 
in 2007 was a valuable input into the debate on the relationship between IP and innovation. Its 
recommendations established, for example, that any new norm-setting activity in the field of IP 
must be preceded by an assessment of its impact on national development policies and strategies.  
275.  In Brazil, the IP system had been largely aligned, over the past two decades, with the overall 
set of public policies to promote innovation an d increase the competitiveness of the business 
sector. One of the Government's stated aims was to make it possible for companies, as well as 
research and technological institutions, in Brazil to take full advantage of IP protection as one of 
the pillars to support innovation. The importance of patents for scientific and technological advancement had been repeatedly stressed by Pr esident Dilma Rousseff. The same perspective 
was to be found in statements by leaders and relevant players in Brazil's industrial sector, in 
particular in the agenda of the Business Movement for Innovation ("Mobilização Empressarial pela Inovação - MEI) that was put in place by  the National Industry Confederation.  
276.  He said that government policies targeted at science and technology were to be found in the 
National Strategy for Science, Technology and Innovation for the period 2012-2015. The restructuring and modernization of the National Inst itute of Industrial Property (INPI) was part of 
the strategy. More information on the modernization of the INPI could be foun d in a recent issue of 
The Economist, the UK newspaper. Priority sectors within the National Strategy for Science, 
Technology and Innovation were information and communications technology, pharmaceuticals, oil and gas, aerospace and segments related to the green economy and social development. Around 
1.2% of Brazil's GDP was currently invested in R& D. This percentage was to be increased to 1.8% 
of GDP by 2014. In South America, Brazil had cont ributed to disseminating a culture of IP and to 
promoting cooperation among national patent offices. The regional IP co-operation project called 
PROSUR was one example of such efforts by Brazil. 
277.  In concluding, he said that at the approach of 20 years from the adoption of the TRIPS 
Agreement, it was timely to undertake an assessment of its implementation and of its real benefits for all countries. As Professor Maskus had put it in his new book: "Anyone who thought a decade 
ago that the TRIPS agreement would settle international debates once and for all on the wisdom of 
increasing global intellectual property rights standards was sorely mistaken". That debate was 
arguably more live today than ever, especially in developed countries themselves.  
278.  The representative of Egypt said that discussions sometimes referred to what had been 
termed "the innovation consensus", according to which innovation was increasingly becoming the 
foundation of economic success and the most important means of establishing political advantage. 
In this regard he noted with concern the international trends that were revealed by the Global 
Innovation Index 2012 which stated that a deep innovation divide continued to persist between countries and regions, most importantly between countries at different stages of development. On average, high-income countries outpaced lower-income countries by a high margin across the 
board in all measures of innovation performance. Such a divide also existed across geographic 
regions, especially between high-income countries and other countries in Africa, large parts of Asia and Latin America. The report identified three gr oups of countries: the innovation leaders, the 
innovation learners and the innovation under-performers. Many developing countries fell in the 
third category.  
279.  He said that in Egypt's view, this deep innovation divide between countries and nations 
should not be allowed to persist and that innovation consensus should in fact mean innovation for 
all. A fundamental objective of innovation consensus should comprise creating the common platform for all to grow, to benefit and to mutually exchange the fruits of innovation. In this way such innovation consensus could be egalitarian and serve all and could be geared to support public 
policies and local needs, and to guard from the ri sks of reinforcing the divide between those who 
could innovate and those who remained mere consumers of others' innovations.  IP/C/M/71 
 
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  280.  At the national level, Egypt sought to promote sound innovation eco-systems, and a tailor-
made IP policy to encourage innovation activity. He shared some initiatives taken recently by the Egyptian Academy of Scientific Research and Technology. Egypt had good IP laws consistent with the TRIPS Agreement and had tried to strengthen national innovation agencies, the national 
innovation council, and innovation initiatives for schools, universities, scientific research centres 
and enterprises under the project INNOVALL that handled all innovation matters. Egypt also tried to capitalize on the unique status of the Egyptian Patent Office as a WIPO/PCT international search 
and preliminary examination authority from 2013. He said that it was important that more capacity 
building and technical assistance from relevant international organizations such as the WTO and WIPO and other Members should aim at bridging this  innovation divide to level the playing field in 
the international IP landscape and to diffuse more development in developing and least-developed 
Members. 
281.  He said that, as stated by proponents, this  agenda item was for general discussion only, and 
did not prejudge the outcome or divert the Council from fulfilling its mandate. 
282.  The representative of Chile said that the agenda provided a very relevant topic for discussion 
in the Council, on the understanding that it was an exercise only for the exchange of information.  
283.  The Government of Chile had declared 2013 as the year of innovation. In budgetary terms 
alone, this meant that 8.9% of the Government's general budget, or one-third of the budget of the 
Ministry of the Economy, would be devoted to proj ects in this area. This could be a turning point 
which could enable Chileans to develop their innovative capacity to generate a better quality of life. More than 20 ministries and government agencies had been working on a full agenda of 
projects that reinforced the importance of innova tion. This work had focused on three main areas: 
first, an active pro-business, pro-innovation go vernment; second, a relevant group of public and 
private emblematic projects; and third, a cultural change to move towards the values of creativity 
and a global vision.  
284.  More than 100 initiatives were being considered for 2013, including eight new technological 
consortia that create value through aligning market needs with technological knowledge. This was 
done through long-term R&D projects doing basi c fundamental research, which was, however, 
industry-led and was strongly focused on the creati on of technologies and marketable products. An 
attempt was being made to attract at least four new centres of excellence; the first stage in this project had already been completed successfully. The objective was to have centres that were 
world leaders in research in their respective areas. Similarly, the Government would take steps to 
attract at least two corporate centres of R&D excellence.  
285.  He said that a new competition in the Millennium Scientific Initiative Programme was being 
considered to add at least two new centres or institutes. The focus of this programme was based 
on cutting edge scientific and technological research and the training of young researchers in networking and in dissemination of science. Likewise, there was a programme from the National 
Innovation Council for Competitiveness, where more than 1,200 school children would be able to 
participate in workshops for the development of en trepreneurship and the design of professional 
careers related to science and technology. Other initiatives included making the Santiago Planetarium the first Chilean centre for astronomy. New academic partnerships would be set up 
with the world class universities to enable Chilean researchers to apply for research capital 
together with the researchers from the best universities in the world. Chile already had agreements signed with MIT and Harvard University.  
286.  Resources were being allocated to a germplasm bank, which would be under the control of 
the Ministry of Agriculture, in order to impr ove and strengthen the preservation and genetic 
resource interchange systems, which would benefit scientists who were working on the decrease of 
pollutants and bioremediation and the breakdown of cellulose for biofuels, to benefit inter alia the 
biofertiliser and biopesticide industry. Innova Chile would develop a new programme that aimed at transforming Chilean engineering schools to the highest standards of quality and make them centres of excellence.  
287.  All the foregoing called for an IP system that was robust and balanced, and one that could be 
a tool for development, for transfer of knowle dge and an incentive for the development of new 
technologies. IP also had an important role to play to preserve knowledge and technology that was IP/C/M/71 
 
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  already in the public domain. In this area a series of projects were being promoted which would 
further strengthen Chilean institutions and legislation, facilitating the use of the international patent system. For example, the national IP in stitute of Chile had been designated as an 
international search office in the context of the WIPO Patent Cooperation Treaty. And the Institute 
for Agrarian Innovation had been identified as an international authority for the deposit of 
microorganisms under the Budapest Treaty. Joint work was also undertaken with other regional offices in South America in the context of the Pro-Accesso initiative.  
288.  Following a public-private effort of over two years, new industrial property legislation was 
being sent to the Chilean Congress to replace the current text. This reform sought to promote innovation, strengthen industrial property rights , regulate new types of protection and streamline 
and improve procedures for registration and enforcement standards. And finally in the creation of 
a pro-innovation environment, Chile had created a ne w electronic tool called "Inapi Proyecta". This 
was a platform which was set up in early 2012 with an aim to create opportunities for business, innovation and creativity through the use and management of industrial or IP. This was to be 
accomplished through a series of technological services that was free of charge and available on 
the website: www.inapiproyecta.cl. In 2013, there would also be new e-learning courses on industrial property, and talks and workshops wo uld be broadcast through the national video 
conference network of Chilean universities. 
289.  He said that he hoped that the information he had provided would contribute to the debate 
on the relationship between innovation and IP. It was evident that each country had its own reality and that there was no overall recipe in this ar ea. However, through the exchange of countries' 
experiences, Members would be able to learn about useful elements to improve their own 
innovation strategies and also understand better the role that the IP system could play. 
290.  The representative of India said that he understood from the proponents that the agenda 
item was a stand-alone one. He said that the word innovation appeared just once in the TRIPS 
Agreement in Article 7 which stated that IPRs "should contribute to the promotion of technological innovation and to the transfer and dissemination of technology" and not for the sake of innovation 
itself but "to the mutual advantage of producer s and users of technological knowledge and in a 
manner conducive to social and economic welfare, and to a balance of rights and obligations". Thus the Agreement made it clear that the purpose of the IP system was not solely to protect the commercial interests of the IP holders but that it was one of the many tools available to the 
society to achieve technological development, social and economic welfare and innovation. 
291.  He said that the relationship between innovation and IPRs was rather complex. The TRIPS 
Agreement did not define what innovation meant but left it open for appropriate interpretation 
depending on the public interest each country woul d like to achieve with IP. Empirical evidence on 
the role of IP protection in promoting innovation and growth remained inconclusive. Divergent views persisted on the impact of IPRs on deve lopment prospects. Some pointed out that the 
protection of IP could bring benefits to developing countries by creating an incentive structure 
necessary for knowledge creation and diffusion, and encourage technology transfer and private 
investment. Others stressed that IP, especially some elements of the patent regime, would adversely affect the pursuit of sustainable developm ent strategies by raising the price of essential 
drugs to levels that were too high for the poor to afford, by legitimizing the piracy of traditional 
knowledge and by undermining the self-reliance of resourceful farmers.  
292.  The question therefore remained whether a higher level of IP protection could provide 
innovation. A key related question was how to frame a patent regime in a country where 
innovation was centred on minor incremental technical changes. One view was that if the criteria of patentability were kept low, companies may be encouraged to seek patents on minor 
innovations and thus further develop existing technologies. On the other hand, it was proven that 
such a patent regime got manipulated mostly by large companies that had the financial and technical capacity to exploit the patent system and not by small and medium enterprises in the developing countries. The domestic companies in developing countries were deterred by the high 
patent litigation costs and therefore preferred to remain out of the patent system.  
293.  The second question was whether the thousands of patents granted, for example in the field 
of pharmaceuticals, in many developed and developing countries, reflected real innovation. 
Ironically, in the last two decades, despite the TRIPS Agreement and advances in research tools, 
the number of real innovations in pharmaceuticals, namely new chemical entities, had dramatically IP/C/M/71 
 
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  fallen while the number of patents had dramatically increased. An increasing number of patents 
was granted for simple changes in chemistry and new formulations of existing products, such that the market entry of generic products, which could provide affordable access to quality products, was delayed.  
294.  Further, very few patents were granted to the domestic companies in developing countries. 
This meant that the national IP regime was geared not for promoting domestic innovation but to protect the IPRs of the big companies of some of  the developed countries. Thus, the IP system, for 
example in the pharmaceutical industry, failed to  fulfil the interests of the society to provide 
quality drugs, or to develop new drugs to treat th e diseases of the poor or to provide access to 
medicines at an affordable cost, thus defeating the basic purpose of the TRIPS Agreement.  
295.  He said that while society had gained tremendously through innovation in the information 
and communication technology sector, this was not due to the IP system, but due to open 
innovation models, joint development, cross licensing, and other such strategies. He said he doubted if the sector could have achieved that st age of development if patent holders could have 
prevented others from using their inve ntions for long periods of time.  
296.  Further, many other sectors important to the society, including defence, education, and 
fashion, succeeded not by protecting the core interests of the inventor but by using the flexibilities 
in the IP regimes. In order to resolve the te nsions between innovation and access, and to 
accommodate sequential innovation, governments could choose to use the flexibilities in the TRIPS Agreement. In addition to the flexibility of wi thholding protection entirely for some areas of 
innovation, governments also had the option of compulsory licence on reasonable terms. For 
example, the European Union provided for mand atory cross-licensing of both patents and sui 
generis plant variety protection for cases involving follow-on innovations involving new plant varieties, where the new innovation represented significant technological progress of considerable 
economic interest.  
297.  In both Europe and the United States, there were a number of cases where governments 
had intervened in licensing decisions involving patents on computers and mobile computing 
technologies, in order to ensure that licences were available on fair, reasonable and non-
discriminatory terms. Further, in order to ensure that patents on stem cell technologies did not block follow-on innovation, both the United St ates and the European Union had considered a 
number of strategies to reduce the negative im pact of patents on innovation. These included 
decisions to deny patents or to limit patent claims or to require licensing of patents developed with 
common funds.  
298.  He said in conclusion that no direct correlation could be made between IP and innovation. In 
fact, technological progress, even in developed countries, had been achieved through government 
interventions like compulsory licensing, cross-licensing, government funding and those made through competition policy, but not through the IP system alone that only secured the investment 
of inventors. It was unfortunate that some of the developed countries would like to use IP to 
perpetuate their hold on innovation and thus block further development. It was therefore essential for developing countries to use the flexibilities provided by the TRIPS Agreement if they wanted 
their societies to benefit from innovations. 
299.  The representative of China said that she und erstood that the intention of the proponents of 
this agenda item was to bring a new subject to the Council. While she appreciated their efforts and 
good intentions, she hoped that the new initiative would not dilute or divert Members' attention 
from long-pending issues. China believed that innovation was the main impetus driving economic 
development and that the IP system was the basis to promote innovation for developing and utilizing knowledge-based resources. By reasonably  determining people's rights and obligations to 
certain knowledge and other information, the IP system adjusted the interests among different 
groups of persons in the process of creating an d utilizing knowledge and information, encouraged 
innovation, and promoted economic and social pr ogress. As a developing country Member, China 
fully recognized the critical role of IP in promoting innovation and attached great importance to 
both IP and innovation.  
300.  In order to improve its capacity for innovation, China had begun to implement the national 
IP strategy since 2008, which aimed to promot e its capacity in the creation, protection, IP/C/M/71 
 
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  commercialization, utilization, and administration of IP. China had expedited the development of 
legal systems for IP, improved IP enforcement, st rengthened the administration of IP, developed 
intermediary services for IP, developed intellectual human resources, promoted IP culture, and expanded international exchange and co-operation in the area of IP.  
301.  While recognizing the important role of IP  protection in current innovation, China also 
recognized that IPRs provided exclusive rights for the right holders that could limit the availability 
and utilization of the knowledge by other persons and entities. If the protection of IPRs was not 
appropriate or the rights were abused, the dissemination of knowledge, innovation and social 
progress could be hindered. Article 7 of the TRIP S Agreement recognized that the protection and 
enforcement of IPRs should contribute to the promotion of technological innovation, and to the transfer and dissemination of technology. Articl e 8 of the Agreement further allowed Members to 
adopt measures necessary to promote the public interest in sectors of vital importance to their 
socio-economic and technological development and recognized that appropriate measures may be needed to prevent the abuse of IPRs by right hold ers or the resort to practices which unreasonably 
restrain trade or adversely affect the international transfer of technology.  
302.  She said that preventing abuses of IPRs wa s one among the five strategic focuses of China's 
national IP strategy. Considering the relationship  between IP and innovation, China believed that 
IP systems should be comprehensive and balanc ed and could contribute to the promotion of 
innovation by appropriate level of intellectual prot ection and enforcement. However, in addition to 
IPRs, other kinds of measures - such as enhancing education, improving the collaboration between academic circles and industrial sectors - were also essential to encourage and promote innovation.  
303.  The representative of Switzerland said that he welcomed the opportunity to discuss the topic 
of IP and innovation in the Council. Innovation and the promotion of technology to achieve 
economic development were key objectives of the TRIPS Agreement, as highlighted in its Article 7. 
Those should also be the objectives of any national IP system, through the provision of a fair, 
stable and non-discriminatory regulatory framework.  
304.  He said that he wanted to highlight the efforts to promote and to facilitate access to the IP 
system for small and medium-sized enterprises (SMEs) in order to maximize their important 
contribution to the innovative process. He appr eciated the previous day's event on innovation 
strategies, sponsored by Canada, the EU, Turkey and the US, where entrepreneurs from Africa, Brazil and the US had spoken of their professional  activities and successes. They reported that it 
was sometimes difficult for SMEs to know what the IP system was really about, what potential and 
benefits it might hold for supporting them in their business activity. The challenge of how to make the IP system more accessible for SMEs was thus faced both by developed and developing 
countries. It seemed thus appropriate to see how Members responded to this challenge.  
305.  Awareness of and access to the IP system could depend on the size of a company. Larger 
firms and right holders tended to be in a stronger  position to profit from the IP system because 
they had more resources and were better informed about their rights and thus also in a better 
situation to enforce these rights as compared to smaller competitors. At the same time, SMEs often had just as much if not more to lose if they were not sufficiently aware of and did not use the IP system for their own benefit. For example,  investors often required legal protection for 
designs and patents before they were willing to provide venture capital for start-up financing. A 
solid and enforceable IP right portfolio could act as an important asset in the critical phase of business development. IP was also an important asset for SMEs because it could be bought, sold, 
or licensed out to partner businesses. It thus provided not only a source of income, but also a 
basis for growing one's business through building partnerships with companies that had a related or different technological expertise, allowing otherwise fallow ideas to be effectively monetized. 
SMEs were much more likely to be dependent on a single design, patent, or trademark for their 
entire revenue stream, thus turning IP protection from a mere strategic issue into an existential one. 
306.  SMEs were also the backbone of the Swiss economy. In order to be competitive globally, 
innovation was a key prerequisite for them – and thus also using the IP system in an informed 
manner for their own, and for the economy's, benefi t. Accordingly, Switzerland had, over the last 
few years, implemented a number of simple measures to make the IP system better accessible to 
SMEs and to put them on a level playing field with bigger companies.  IP/C/M/71 
 
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  307.  Based on three studies examining the state of play of the use of the IP system by SMEs and 
their special needs in this context, Switzerland ha d taken a number of steps, including setting up a 
network of patent attorneys who agreed to offer free preliminary consultations on IP matters to SMEs. This lowered the entry threshold for SMEs to make use of the IP system and allowed them 
to get a first impression of how IP could work in their favour. Through that the Government had 
thus raised awareness of how the IP system could work for small innovative businesses without resorting to tax-payer funds. There was also a free IP hotline operated by the Swiss IP office 
where SMEs could get expert advice to their questions. Switzerland had implemented revenue-
neutral patent, design, and trademark fees that still  covered the cost of the IP system but did not 
cross-subsidize other government branches. One-on-one research information to inventors was available at the IP Office from patent experts for a nominal fee. Public and in-house seminars that 
informed SMEs on how they could protect and levera ge their IP were regularly held. He said that 
his delegation saw a lot of potential for policies and measures that raised innovation output and efficiency by putting existing government services more proactively at the service of SMEs.  
308.  He said that Brazil had in its intervention already referred to the in-built balance in the 
patent system by requiring inventors to disclose their invention, thus making available a unique body of information on the state-of-the-art of technology to the public and promoting further 
development in technological sectors. He said that his delegation looked forward to continuing this 
dialogue in the Council with the other Members to explore ways and means on how IP and the implementation of TRIPS might promote innovation best in order to make IP work for an ever wider segment of the economy, in particular SMEs, whether based in developed or developing 
countries.  
309.  The representative of Japan said that in order to promote technological innovation and its 
diffusion, the protection of IPRs was critical. It promoted the diffusion of new technologies rather 
than hindered it, and made it possible to secure a higher level of investment in R&D, which itself 
led to promoting innovation and combining outcomes of the innovation in various fields. This mechanism contributed to the promotion of sustainable global economic development.  
310.  In this context, the "IP Advantage database" (www.wipo.int/ipadvantage) under WIPO 
featured over 100 case studies explaining how inventors, creators, entrepreneurs and researchers throughout the world had used IP to differentiate  their products, gained a competitive advantage 
and contributed to the development of their bu sinesses and regions. The database, launched in 
September 2010, was based on a proposal from the Japanese Government and was implemented 
through a financial contribution of the Japan Funds-in-Trust of WIPO. He said that his delegation would like to reiterate that the IP system served as a basis for direct investment and technology 
transfer from developed countries and, therefore, wa s both an effective tool as well as an essential 
infrastructure for the sustainable development of developing countries.  
311.  The representative of the Korea said that it was crucial for Members to have a clear 
understanding of how IP laws and policies, including public awareness on IPRs, helped innovators 
and creators, as well as created new businesses, generated income and provided jobs. He described briefly the major IP policy practices undertaken by the Korean IP Office (KIPO).  
312.  To promote IPRs that would help shape and drive future markets, Korea was continuously 
striving to build the capacity of researchers and businesses to create and utilize IP more 
effectively. Accordingly, his Government supported R&D projects that provided patent analysis at the critical research planning stages. In addition, it provided assistance for IP creation by SMEs at 
31 regional IP centres nationwide, as well as va rious policies to foster the enhancement of IP 
manpower. In order to avoid duplication, KIPO investigated the patent technology trends of governmental R&D. It performed patent analysis at the research planning stage, confirmed the 
projects and tasks and then provided the investigatio n results to the relevant ministries at an early 
stage of the research project so that they could alter the direction of their research, if necessary, 
to follow the most effective and competitive path. 
313.  He said that in order to enhance the efficiency of the governmental R&D projects, it was also 
important to enhance the IP capacity of researchers participating in the projects. Thus KIPO 
provided IP consulting support to develop customized R&D strategies for research institutes.  IP/C/M/71 
 
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  314.  In order to provide support to SMEs, KIPO had set up 31 regional IP centres where patent 
brand and design experts provided consultations on various IP issues. In addition, with a view to 
creating both a broader and deeper understanding of the IP system, KIPO provided IPR training 
courses for SMEs. In order to maximize the promotion of transfer of innovative technologies from 
universities and research institutes to SMEs, KIPO  sent IP management experts to universities and 
public research institutes. Only experts with ampl e experience in the area were selected from the 
private sector and sent to universities and institutes to improve their IP management capacity.  
315.  In September 2010, KIPO had created a special judicial police squad in the three regional 
offices for trademarks to crack down on counterfeit goods. The squad had caught 180 individuals guilty of producing or selling counterfeit good s and confiscated 57,218 counterfeit goods during 
the 16 months after its launch. The criminal arrests and confiscation of counterfeit goods 
represented a more focussed and strengthened effort to address those issues. 
316.  Due to the growth of the e-commerce market, online transactions of counterfeit goods had 
been rapidly increasing. In December 2001, KIPO had established an online police squad based in 
Seoul and equipped it with digital forensic equipment to formally crack down on online transactions 
of counterfeit goods. In addition, it had launched various projects to raise international awareness of the protection of IPRs in the public. KIPO ha d collaborated with several consumer groups to 
launch campaigns nationwide urging consumers to refuse to buy counterfeit goods. In addition, 
KIPO had conducted a training session to encourage all consumer groups to voluntarily participate in the eradication of counterfeit goods distribution.  
317.  In addition, KIPO had used various media channels, including TV advertisements and social 
media networks, to educate the public on the damaging effects of counterfeit goods. Moreover, 
KIPO had produced and distributed educational videos  on the protection of IP for children and held 
classes comparing genuine and counterfeit goods. KIPO had also held a competition on the theme 
of the protection of IP for college students.  
318.  He stressed that the Korean Government's efforts were grounded in a firm commitment to 
the protection of IP and a belief about its contribution to innovation. It would continue working 
with all stakeholders to find the most appropriate and effective means for addressing these 
important issues. 
319.  The representative of Mexico said that the innovation policies promoted by Mexico 
constituted steps towards economic development. While it was true that there was still some way 
to go, there had been improvements in programmes  relating to innovation. It was necessary to 
follow a model of development that allowed for the constant encouragement of innovation. Mexico had public bodies that were able to generate and transfer knowledge. The new law on science and 
technology sought to improve the link between the production sector and technological R&D 
institutions. There was a close relationship between economic development and the ability to generate scientific and technological research. 
320.  The main focus of her Government's effort s were in technology areas such as: advanced 
manufacturing systems; health technologies; agrifood; biotechnology; nanotechnology; mobile technologies and multimedia; and clean technologies and renewable energy. Mexico sought to enhance its development by implementing policies aimed at boosting innovation and improving the 
link between the government, the academic sphere  and industry, thus making the most of the 
knowledge generated by an entity through IP, with a view to improving and addressing the 
problems and challenges that arose in the national and international context. 
321.  The representative of Chinese Taipei said that his delegation also fully recognized the 
importance of IP and its valuable contribution to society. The development of an innovative 
economy was currently one of his Government's key policy objectives. Therefore, in pursuit of this 
goal, he had taken some practical steps to encourage the creation and commercialization of IP. For 
example, it had established a website, the "Tec hnology Marketplace", to bring together rights 
holders and potential users, who could explain to each other their IPRs, their requirements, and the technology they were looking for. In shor t, this website (www.twtm.com.tw) provided a 
platform for information exchange and technology transactions. More than 2,000 cases of patents 
had been presented on this website, generating more than 3.5 million US dollars of industrial 
investment. He said, in conclusion, that much of what his Government was doing was to facilitate IP/C/M/71 
 
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  the circulation and usage of IP in the firm belief that this would help to stimulate the development 
of the economy. 
322.  The representative of the European Union said that in the present day's knowledge society, 
innovation was a key asset. For many countries, it was a more valuable source of growth and 
wealth than natural resources, which were increasingly scarce. The impressive development and 
growth of many countries, many in Asia, relied to a large extent on innovation and technology. An effective IP system was crucial to promote innovation, as it made it possible to protect intellectual 
assets such as inventions and brands, but also music, literature and agricultural products, which 
were as relevant for developing as they were for developed countries. Therefore, insofar as IP 
regimes were concerned, right holders - but also investors and consumers - needed a level playing field, so as to operate effectively across the bord ers, thereby benefiting better from international 
trade and promoting it. Legal certainty was important to encourage innovation and investment, 
which meant a need for stable and predictable IP regimes, both domestically and internationally. 
323.  He said that it was clear that IP regimes needed to be properly balanced, and that had been 
a central concern throughout the history of IP, wi th frequent controversies regarding how exactly 
to achieve such balance. But there was a broad agreement about the central role of IP in a 
knowledge-based society to ensure competitiveness,  scientific progress or access to culture. He 
said that he would quote from an important policy document on "Innovation and IPRs" being 
debated in one developing country WTO Member, which stated: "The underlying basis of knowledge as a source of productivity gain and competitiveness has ensured a central place for Intellectual Property Rights. Compared with the traditional factors of land, labour and capital 
responsible for production, it is the generation and management of knowledge and corresponding 
intellectual property rights, which is increasingly playing an important role in the economic development of the country. This increasing importance of intellectual property rights has started 
to change the way the national and the sub national governments view intellectual property and 
Innovation system as a whole, making it a policy driven initiative in both developed and developing economies. Most developed economies already have strong systems and policies in 
place to encourage and protect intellectual proper ty rights, and developing economies are slowly 
but steadily moving towards creating similar ecos ystems most suitable to their national needs." 
324.  Further, he said that the same document stated "In the knowledge economy, creation of 
intellectual property and its incorporation in designs, products and production techniques are 
increasingly becoming important for commercial competitiveness and economic growth. Credible 
national intellectual property system thus calls for social awareness amongst the people about the stakes involved in intellectual property rights. More particularly, the […] academia, industry, the 
innovator/entrepreneur community ought to be  increasingly made aware of the value of 
intellectual property rights both from national and global contexts". 
325.  He said that, referring to education, the document stated: "From a fundamental long term 
perspective an intervention in the mainstream education system is needed. Basic concepts of 
intellectual property creation and respect for intellectual property needs to be introduced as a component of formal education at school, college, university and at vocational level thereby fostering a culture of creativity in future generations. Such education should focus on the economic 
as well as the social aspects of intellectual property." 
326.  Referring to "Strengthening Protection of Intellectual Property", the document stated 
"Protection of Intellectual Property is both a scope and a depth issue. While establishing new 
instruments and addressing gaps in the availabl e instruments is a scope issue, efficiency and 
strength of institutions that grant/protect IPR and extent of protection available is the depth issue. 
Therefore strengthening of IP protection regime wo uld involve improvement in the institutions that 
grant intellectual property rights and in those th at were responsible for its enforcement as also 
expansion of rights to include new intellectual property rights."  
327.  Finally, when referring to "Facilitating Commerc ialization of intellectual property rights", the 
document stated: "For Innovation to create any impact, it is imperative to take the idea/innovation 
from mind/laboratory to the market, where their true  intrinsic value is realized – through products 
and services. While larger organizations have the intent and capabilities to take their technology/intellectual property to markets, severa l others do not. Hence, it becomes imperative 
to establish facilitative mechanisms that could address such limitations of several SMEs and 
individual innovators and thus help put knowledge into practice in a big way. Hence, policy IP/C/M/71 
 
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  interventions are needed to create strong and transparent national systems that encourage and 
facilitate (i) licensing of rights to another entity for commercialization (ii) Cross-licensing agreements where two or more companies could exch ange rights to their IP (iii) leveraging the 
Intellectual assets for future R&D growth and improved products/services; (iv) 
sale/merger/acquisition of either the IPRs or th e entire business distinguished and appropriately 
valued by their intellectual capital; (v) patent pooling which allows two or more companies to pool their technologies/IP and join in common interest to create some product that was to their 
combined benefit and (vi) reinforcing the stability of IP license contracts." 
328.  He said that the policy statements he had just cited could have been written by the 
European Union, but were taken from a National IPR Strategy being adopted in a developing country WTO Member. He said that this document was a perfect illustration of the extent to which 
Members had a common view on the subject, particularly the importance of IPRs as an instrument 
to achieve innovation.  
329.  The essential concept of "balance" in IP had led to a number of exceptions and flexibilities 
being introduced in various pieces of legislatio n, for example in the TRIPS Agreement and in EU 
IPR legislation. Exceptions and limitations clearl y had their role to play; however, where they 
became the dominant discourse, the underlying IPR regime became unsustainable, uncertainty 
grew for innovators and investors and ultimately the citizens were deprived of the benefits of 
access to the most advanced and high-quality products. 
330.  He said that he wanted to focus on certain practices that had become serious obstacles to 
the effective functioning of an IP system and ultimately hindered innovation. This was the case for 
local working requirements, in particular when implemented as an obligation upon the right holder 
to produce the IP bearing good in the country or lose the IP right protection. He said that this was opposed to the very concept of free trade beca use, if all WTO Members imposed local working 
requirements, there would be no international trad e of IP-protected goods. Requiring companies to 
produce locally in every country where they had obtained a patent, a trademark or a design went against business sense and might well discourage the entry of foreign operators on such market. 
He said that there were on-going efforts to clarify this bilaterally with India. He said that Members 
might be tempted to consider such measures to provide short-term gains for domestic competitors or users, but overall they were not conducive to long-term innovation and growth since they resulted in a regulatory environment that deterred innovation, transfer of technology and foreign 
investment in innovative sectors. Innovators logically took account of such local IPR factors when 
making investment decisions. 
331.  In conclusion, he said that his delegation st ressed the importance of striving to achieve a fair 
balance in the substance of the EU IPR regimes, including the implementing of necessary 
flexibilities, but doing so without turning the exceptions into the rule, and ensuring that the EU continued to incentivize and promote innovation, to the benefit of society as a whole. He said that 
his delegation believed that this subject should be discussed further in the framework of the TRIPS 
Council. 
332.  The representative of New Zealand said that innovation played a key role as a driver of 
economic growth and prosperity. She said that he r delegation agreed that IPRs could play an 
important role in promoting innovation and creati vity in the economy. The question of how IP 
affected innovation was complex and based on multiple variables. IPRs alone would not necessarily foster economic development and growth. There were many other important variables that 
affected economic growth, such as macroeconomic stability, market openness and technology 
infrastructure. In order for IP systems to function as intended, they must form part of a coherent 
and broad set of complementary policies in areas such as strengthening human capital, education 
and skills, and ensuring a transparent non-discriminatory and effective competition regime.  
333.  She said that her Government had recently launched a business growth agenda, which was 
an ambitious programme to create jobs and improv e New Zealand's standard of living. One of six 
work streams under the business growth agenda focu sed on building innovation in order to grow 
New Zealand's economy. Working to improve New Zealand's IP settings was one of many 
initiatives under this work stream. Other initiatives included strengthening research institutions, building international linkages, and developing innovation infrastructure.  IP/C/M/71 
 
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  334.  It was important to take a holistic view in looking at policies and settings to increase 
innovation. Balanced IP protection was important but it formed just one part of the innovation equation. It was well known that there were two central objectives in any system of IP protection. The first was to promote investments and knowledge  creation and innovation through providing a 
period of limited monopoly. In the absence of such  rights, individuals and firms would be reluctant 
to invest in the R&D needed to develop new innovation. The second goal was to promote the widespread dissemination of new knowledge by encouraging right holders to place their inventions 
on the market. Society gained from access to these new innovations and this in turn assisted in 
fostering the development of additional follow -on innovation. There was a careful calibration 
between these two objectives. An overly protective IP system could limit the social gains from innovation by reducing access to those innovations, including the opportunities for follow-on 
innovation. However, an excessively weak system could also reduce innovation by failing to 
provide an adequate return on investment. It was for these reasons that a policy balance needed to be found that was appropriate to market conditions and this balance would be very different, 
depending on the circumstances in each country.  
335.  She said that the negotiators of the TRIP S Agreement had foreseen the need for such a 
balance. Her delegation considered that the Agreement contained a careful balance between rights 
and obligations and that Members could use this in tailoring their IP systems to suit their particular 
circumstances to foster innovation and economic growth within their societies. The pillar of the 
Agreement was Article 1.1 which made clear that Members were free to determine the appropriate method of implementing the provisions within their own legal systems and practices. TRIPS also 
contained important objectives and principles to  prevent the abuse of IPRs. These provisions 
ensured that the protection and enforcement of IP Rs contributed to technological innovation, the 
dissemination of technology and other socially de sirable outcomes and to a balance of rights and 
obligations.  
336.  She said that for her delegation it was important to focus on optimizing IP protection to 
encourage innovation. Her Government ran a high-q uality and efficient IP regime which sought to 
balance the interests of innovators, follow-on innovators and consumers in a way that supported 
innovation across the economy. This was backed up  by a range of policies that sought to promote 
innovation, as well as rigorous but fair competition in the market.  
337.  The representative of Canada said that he supported a discussion on this agenda item to aid 
in demonstrating how IPRs promoted innovation. Since economic activity and human wellbeing 
were increasingly based on knowledge creation and innovation, a discussion on ways to help stimulate innovation was beneficial to all countries. Knowledge, which could be defined as the 
combination of technology, ideas, message and techniques, was quickly becoming one of society's 
most important economic assets.  
338.  The growth of knowledge as a tradable asse t was a feature of all economies. It could take 
many forms in its creation and movement across borders. An effective IP regime was central for 
any growing knowledge-based economy in order to remain competitive and foster an environment that promoted innovation and creativity to attract new investment and stimulate economic growth in addition to ensuring developmen t and dissemination of technology. 
339.  He said that his delegation recognized that the TRIPS Agreement was a driver to help 
promote innovation. Domestically, Canada continued to support innovation as was evident in the Canadian Government's budget of 2012. This budget  contained a number of elements to foster the 
commercialization of R&D such as providing tax incentives, funding for research assistance, and 
access to risk capital. An effective IP regime helped to aid the successful commercialization of R&D and to attract more investment. For example, Canada's national investment promotion agency, 
"Invest in Canada", promoted Canada's IP regime as one important element to attract foreign 
investment into the country.  
340.  The Government of Canada had recently passed copyright reform legislation in order to 
create a modern legislative framework that strengthened Canada's ability to complete in the global 
digital economy by balancing the rights of the cr eators and the interests of the consumers and to 
promote innovation and attract new investment. He said that national innovation systems across all countries must adapt to a changing world and embrace the new challenges and opportunities 
provided by globalization. IP protection was an important part of this process of adaptation. His 
delegation encouraged other countries to promote and uphold laws, regulations and procedures to IP/C/M/71 
 
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  strengthen effective IP protection and to use transparent and predictable judicial proceedings, 
policies and guidelines related to IP protection. He said that his delegation believed that IP and innovation were linked in such a way that effective IP regimes would foster more attractive investment environments that would contribute to  future global growth and prosperity for all. 
341.  The representative of Australia said that the subject of the agenda item helped Members 
remember one of the key reasons why TRIPS, and domestic IP regimes, had been introduced. IP 
was an integral part of international trade and its importance was increasing as the effective use of 
knowledge contributed ever more to national economic prosperity. In Australia the value of IP in 
2011 was AU$182.5 billion. Trade in royalties for IP for Australia was AU$1.1 billion for exports and AU$5.2 billion for imports. These figures show ed that Australia was a trading nation with a 
strong innovative research tradition but that it also had a need for access to new technologies and 
content. She said that innovation was critical to the growth of the economy and made it more 
competitive and created investment. The innovation  necessary to keep growing the economy could 
not occur in isolation. Investment in innovation required a strong and balanced IP system that 
provided investors with an opportunity to recoup the investments necessary to bring ideas to the 
market place. It ensured that innovators could ob tain the rewards from their R&D and fund further 
research. It promoted further innovation to a ccess information, new technologies and content. 
342.  Australia's creative and innovative research tradition was well established. For example, in 
1996 the Australian Government's science and research organization, which was called the CSIRO, invented and patented wireless LAN technology, a technology that gave the freedom to work wirelessly in homes and offices, using devices such as laptops and smart phones. CSIRO's wireless 
invention laid at the heart of what was now the most popular way to connect to the Internet 
without wires. The technology was likely to be in over 5 billion devices worldwide by the time the patent expired at the end of 2013. But of course this innovation had built on and added to many 
other ideas and in turn it had inspired further innovative thinking. Thus, strong and balanced IP 
ideas helped to create an environment for this idea to be developed, just as they supported the development of many other new ideas, including breakthrough pharmaceutical technologies and 
environmental technologies.  
343.  A net IP importer, Australia needed access to the creative works and inventions of her 
trading partners and its IP laws supported this need. In this increasingly linked and competitive world, innovative firms and foreign investors generally opted for locations with relatively strong IP 
laws, which could have a long-term beneficial impact. The converse was also true. Countries with 
weak IP protection were less likely to attract foreign investment and technology transfer. The Australian Government was committed to high-quality  and balanced IP laws, both domestically and 
internationally, to support innovation in Australia to ensure that Australians had access to the 
innovations of others and to enable Australians to contribute to the global pool of innovative and creative ideas. Her delegation believed that the same should be true for other countries, 
recognizing that effective systems in other countries were mutually supportive and helped create 
conditions for improving lives in all countries. 
344.  The representative of Bangladesh said that  it was obvious from the subject of the agenda 
item that it covered a vast area and was also subject to different interpretations by Member 
countries. Though IP and innovation were two distin ct branches of the same subject, both of them 
were associated with investment, economic growth, prosperity, as well as social and cultural development. He said that, unfortunately, all countries were not in a position to benefit equally 
from these concepts due to historical reasons. Some countries got political independence only in 
the last 50 years, and most of the developing countries were not in a position to develop IP regimes according to their specific legal requirements, nor were they able to sufficiently innovate 
to achieve development. As a result, developing countries, especially the LDCs, seriously lacked 
institutional capability and human resources to utilize IP and innovation for sustainable development.  
345.  He said that LDCs in particular faced greater challenges in developing and protecting their 
valuable IP assets and in developing their own IP regimes suitable to their needs, particularly in 
the sectors such as agriculture, food security, rural development, human and social development, 
trade and technology. Innovation was a continuous process, and needed to move forward. IP and 
innovation, and IP regimes and innovation were tw o different issues. IP regimes did not provide a 
level playing field to facilitate innovation in all countries in the same way. While the existing IP regimes favoured innovation and its commercial returns in some countries, they might do the IP/C/M/71 
 
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  opposite in developing countries. In most developing countries and in almost all of the LDCs, the 
private sector did not have the capability to invest  heavily in R&D. It was the public sector that 
filled the gap of the private sector. So the approa ch and objectives of IP regimes in developing 
countries must be different from  those of developed countries.  
346.  While IP was property, it was also a privileg e. Thus there must be a proper balance between 
rights and obligations to effectively use both IP and innovation. Developing countries needed special and differential treatment and must be eligible to receive assistance, in addition to 
technical assistance, which must be developmen t-oriented, demand-driven and transparent. He 
noted that WTO Members had already recognized this under Articles 66 and 67 of the TRIPS Agreement and hoped for their continued engagement. 
347.  The representative of Peru said that the su bject of the agenda item was closely related to 
development, employment and education. Peru had the National Council for Science, Technology 
and Innovation, which was under the Council of Ministers and reported directly to the President. This was intended to create, promote, coordinate , supervise and assess any action taken nationally 
in science and technology, guiding private sector  policies and supporting policies that would 
promote scientific development and IP in the country.  
348.  In August 2012, the Peruvian Institute for Business Administration was created with an 
innovation centre aligned with the social policies implemented in Peru. This was proof of joint 
efforts between the academic and private sectors in the promotion of initiatives to improve the IP system in terms of innovation, in favour of businesses and people. For example, Peru held a public competition for inventors, which was now in its eleventh session. Prizes were also won by these 
successful inventors in the Salon of Inventions in Geneva. One winner was Mr Ramos who had 
been blind for 63 years and yet invented a force multiplier system that won the bronze medal in Class A for mechanics, motors, machinery and metallurgical technology. These were some 
examples of the efforts undertaken in Peru, reflecting the State's concern for bringing the 
academic and private sectors together to promote innovation. It was clear to his delegation that 
the strengthening of the IP system was a key element and his Government worked with WIPO to 
design its IP structure. He said that this agenda item should continue to be addressed and that the 
Council could become a forum to support states' efforts to close the knowledge gap. 
349.  The representative of Tanzania said that it was true that there was high correlation between 
IP protection and innovation. No innovator would appreciate investing in a country where his IPRs 
would be abused, be it in a competitive environment or even in an LDC. However, he feared the 
abuse of the requirement to have a higher level of  protection of IPRs. He said that such higher 
level was only appropriate in some cases. Where there was no competition, as in LDCs, he found it 
difficult to find a correlation between a higher level of IP protection and the dissemination of 
technology. Thus, there must be a balance of wher e it was necessary to have a higher protection 
system of IPRs and where there was no fear of losing control over technological information.  
350.  The representative of WIPO said that the face of innovation was changing as seen in WIPO's 
first World Intellectual Property Report, 2011 (WIPR) . This report had carefully considered studies 
that had been done in the field of innovation and relevant data in order to summarize dispassionately, and in a manner accessible to policy makers, the evidence on global innovation. 
He said that the report set out that innovation  accounted for as much as 80% of economy-wide 
productivity growth in developed countries and that, while there was less evidence available for 
developing countries, studies had shown that if one took a broader view of innovation to include 
incremental product and process innovation, innovation played a similarly important role in less 
developed economies.  
351.  Data on R&D expenditures showed that global investments in R&D had almost doubled in 
real terms from 1993 to 2009 and global R&D expend itures had grown more rapidly than global 
gross domestic product, which led global R&D intensity to grow from 1.7% in 1993 to 1.9% in 2009. At the same time, it was important to point out that 70% of global R&D spending still took place in high-income countries. Developing countri es had increased their global R&D share by 13% 
between 1993 and 2009. China alone accounted for more than 10% of this increase, which 
propelled it to second place as the world's second largest R&D spender in 2009. Some data were also available on broader investments in intangible assets that went beyond pure R&D activities 
and considered investments in marketing and branding as well as in skills development. Data were 
limited to some developed countries but they uniformly showed that firms' investments in IP/C/M/71 
 
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  intangible assets had grown more rapidly than their investments in tangible assets. And in some 
countries firms invested more in intangible assets than they did in tangible assets.  
352.  Many analysts had pointed to the rising importance of non-technological innovation, 
including organizational, marketing, design, and logistical innovation, but it remained difficult to 
empirically assess the true importance of non-technological innovation. One had to make a clear 
distinction between non-technological and technological innovation because many non-technological, organizational, and logistical innovations ultimately relied on improvements in 
technology, for example, improvements in information and communication technologies. 
353.  Another important point was that innovation was increasingly international in nature. There 
had been a sharp increase in the share of peer -reviewed science and engineering articles with 
international co-authorship and a rising share of patents that listed inventors from more than one 
country. There had been greater geographical diversity of multinational firms' R&D operations that 
invested in R&D facilities in a greater number of countries and also increasingly in emerging economies.  
354.  Many analysts had pointed out that innovation had become more collaborative and open. 
The WIPR had described the process of open innovation, whereby firms who practice open innovation strategically managed inflows and outf lows of knowledge, so that they collaborated 
horizontally with other competitors and vertically with suppliers, as well as with customers. 
Looking at the economy-wide significance of this phenomenon, he said that it remained difficult to assess its true extent. There were signs of greater co-operation in inventing as reflected in greater co-patenting activity. There was also an upward trend in R&D alliances, though that mainly 
happened in the 1990s. There was also a rise in kn owledge markets, for example in the form of IP 
exchanges and brokerages. However, it was important to point out that those were still nascent, and relatively small in size. So it remained difficult to assess the true scale and systemic 
importance of some of the innovation models that business analysts had written about. 
355.  With regard to the role of IP in the innovati on process, it was recognized that IP was just one 
of the many policy instruments that existed to support innovation. The demand for patents had 
risen from around 800,000 applications per year worldwide in the early 1980s to close to two 
million patent filings in 2010. This increase had occurred in different waves with Japan driving the filing growth in the 1980s, joined by the United States, Europe and the Republic of Korea in the 
1990s, and more recently by China. He said that one equally saw rapid growth for other IPRs. 
Trademark filings had increased from around one million in the early 1990s to 3.5 million in 2010. 
WIPO's research had shown that over the last 15 ye ars around half of the growth in patent filings 
had been due to first filings of patents, which approximated the filings of new inventions, and the 
other half was due to subsequent filings, namely patent filings for the same inventions in 
additional patent offices.  
356.  He said that from the writings of economis ts on the patent system, the WIPR highlighted a 
number of ways in which views on the IP system  had changed. A traditional view that was still 
valid, based on evidence from survey of compan ies, suggested that patents were of greatest 
importance for appropriating investments in innovation in the pharmaceutical and chemical industries, reflecting the long R&D cycles in these industries as well as the ease with which new 
chemical compounds could be copied once they were on the market. In many other industries 
product life cycles were shorter and companies had other means of appropriating their investments in R &D, s uc h as  b e ing  the  firs t on the  marke t or rap id ly moving  d own the  te c hnology le arning  
curve. Interestingly though and somewhat puzzling for some economists, most of the growth in 
patenting had actually not occurred in the pharmaceutical and chemical industries but in other industries, especially in information and communication technologies. And answers to those 
empirical patterns were quite complex. While it did reflect the rapid technological progress that 
had occurred in that industry, it also reflected considerations of strategic patenting and patent portfolio races that had emerged between companies.  
357.  An often under-appreciated role of the patent system was that of facilitating specialization. 
Firms might be good at innovating but they might not necessarily be good at manufacturing. The 
patent system allowed firms to specialize in innovating and then licensing their innovations to other companies. One of the fundamental insights  in the history of economic thought was that 
specialization was an important source of efficiency and ultimately economic growth. On the role of 
IPRs in harnessing public research for innovation, he said that universities and public research IP/C/M/71 
 
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  organizations held substantial shares of overall R&D spending, especially in developing countries 
where they often accounted for the great majority of R&D expenditures. Many countries had developed frameworks to incentivize patenting by these institutions and subsequent commercial development of their inventions through technology transfer offices. It was important to note that 
public-private knowledge exchanges occurred through a number of channels, not only through the 
licensing of patented technologies but also through scientific publishing, research collaborations, conference attendance and other forms.  
358.  At the same time, evidence had shown that patenting and the activities of technology 
transfer offices could widen opportunities for commercializing university inventions. It was obvious that institutional design mattered and establishing a successful technology transfer framework took time and resources. But in principle those important organizations could contribute to the 
commercialization of scientific knowledge that often came out of the public sector.  
359.  Another representative of WIPO continued that the continuing debate on the link between 
innovation, creativity, IP and economic developm ent increasingly underscored the need for more 
empirical analysis and research on the topic. Upon a request from its member States, WIPO had 
developed a methodology to measure the economic contribution of the copyright-based industries. Studies carried out in 35 WIPO Member States suggested that 5.4% of the GDP in the countries 
surveyed and 5.8% of the employment in them came from the industries that were based on 
copyright and related rights protection. The studies also suggested that these industries were characterized by higher productivity levels, mu ltipliers and growth dynamics – on average 2.5 
times higher than the average growth rate in  the countries that had been surveyed. Both 
developed and developing countries had shown that the creative sector had a remarkable growth 
potential. WIPO was looking into developing new methodologies that would deepen and broaden the analysis in the field of economics of copyrigh t, namely on issues like the direct impact of 
copyright protection, some of the non-economic impa cts of creativity in copyright, the effect of 
non-compliance and other issues.  
360.  The representative of African Intellectual Property Organization (OAPI) said that OAPI had 16 
member States from Central and West Africa. OAPI had just celebrated its 50th anniversary in its 
headquarters at Yaoundé in Cameroon. On that o ccasion, there had been a Ministerial Conference 
with Ministers for industry and culture who discusse d IP at the service of African development. The 
regional IP system of OAPI had a single IP law,  the Bangui Agreement, which governed patents, 
utility models, trademarks, industrial models, geographical indications, plants, integrated circuits, 
copyright, neighbouring rights, and unfair competition. There was only one office for filing and granting patents in Yaoundé and these certificates were awarded on demand and were valid in all 
the 16 member States. OAPI was responsible for TRIPS implementation as well as filing, and 
granting of these IP certificates on behalf of its member States that did not have any national systems outside OAPI.  
361.  He wondered whether OAPI was covered by Articles 66.2 and 67 of the TRIPS Agreement, in 
terms of the provision of technical and financial assistance from developed country WTO Members. He said that IP must serve development needs, and it was therefore linked to innovation funding that valorized research contained in IP. At the last OAPI Ministerial Conference, in a statement at 
the conclusion of the conference, Ministers had en couraged States to draft national development 
programmes with a view to the better inclusion an d coverage of IP in programmes and policies. 
The slogan was "IP serving development in Africa".  He said that Ministers believed that there was 
a clear link between IP and development.  
362.  He said the IP protection system had its advantages. Apart from certain specific features of 
IP protection, there was also the way in which there were limits from a territorial point of view and 
also over time. He said that the Council had heard that there were two million patents filed in 
2011. However, only fewer than 1,000 of these were  filed with OAPI. In other words, two million 
minus 1,000 inventions were inventions from other territories that were capable of being exploited 
freely in OAPI countries. Even when patents had been  granted, they were limited in time as their 
validity was only 20 years, or less when patent protection was not renewed. Thus, IP allowed the 
public to learn technical information available in patent documents filed at other patent offices. There was counterfeiting only if there was a certific ate that had been awarded and it was in force. 
363.  Some LDCs that were Members of OAPI had submitted their priority needs assessments. 
They would like to have digital information ava ilable so that they could access information on IP/C/M/71 
 
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  knowledge and know-how which was available in IP  office systems. The question was not whether 
or not IP protection should be granted, but what could be done in order to best benefit from the IP system. Access to information by researchers was the first step towards the creation of partnerships for development. Ministers had encouraged the States to fund innovation to obtain 
new products on the market. He said that his understanding of innovation was that these were 
new products because they were the result of ne wly patented inventions, or had been improved. 
Ministers had encouraged the use of the results of research and knowledge embedded in patent 
documents to add value to the processing of local raw materials, including mineral ores, farming 
and cultural activities. He added that there was more information available on the OAPI website: 
www.oapi.nt.  
364.  The Council took note of the statements made. 
14  INFORMATION ON RELEVANT DEVELOPMENTS ELSEWHERE IN THE WTO  14.1  Accessions 365.  The Chairman said that, since the Council's meeting in June 2012, two new Members had 
joined the WTO. The Russian Federation had become the 156th Member of the WTO on 22 August 
2012,1 and Vanuatu the 157th Member on 24 August 2012.2 
366.  Furthermore, at its meeting of 26 October 2012, the General Council had approved the 
accession package of the Lao People’s Democratic Republic. In keeping with WTO provisions, Laos 
would become a Member 30 days following the date of the ratification of its protocol of accession.3 
14.2  Disputes 367.  By means of a communication, dated 18 July 2012, the Dominican Republic had requested 
consultations with Australia regarding the issue of "Australia -- Certain Measures Concerning 
Trademarks, Geographical Indications and Other Plain Packaging Requirements Applicable to 
Tobacco Products and Packaging" (document IP/D /32). The following Members had requested to 
join these consultations: Uruguay, New Zealand,  Honduras, Nicaragua, Guatemala, El Salvador, 
the European Union, Brazil, Ukraine, South Af rica, Canada and Norway (documents WT/DS441/2 
to 13, respectively). 
368.  The Council took note of the information provided. 
15  OBSERVER STATUS FOR INTERNATIONAL INTERGOVERNMENTAL ORGANIZATIONS 
369.  The Chairman recalled that there were 15 pending requests for observer status in the TRIPS 
Council by other intergovernmental organizations. The list was contained in document 
IP/C/W/52/Rev.12. While the Council had not recently been able to progress on the issue of 
permanent observer status, there appeared to be agreement that it could consider whether to grant observer status on an ad hoc meeting-by-meeting basis to any of those IGOs whose 
requests were pending on the condition that they  met the criteria for observers as defined in 
Annex 3 to the General Council Rules of Procedures. 
370.  For that purpose, the Council had requested in June 2011 that the Secretariat contact the 
IGOs with pending requests to update the information they had provided earlier, including on the 
nature of their work and the reasons for their interest in being accorded observer status.  
371.  Since then, the Secretariat had received updated information from the Conférence des 
Ministres de l'Agriculture de l'Afrique de l'Ouest et du Centre (CMA/AOC), the Cooperation Council 
of the Arab States of the Gulf (GCC), the European Free Trade Association (EFTA), the 
                                               
1 The Protocol on the Accession of the Russian Federation has been ci rculated in document 
WT/MIN(11)/24, WT/L/839, and the Report of the Working Party on the Accession of the Russian Federation in 
document WT/ACC/RUS/70, WT/MIN(11)/2). 
2 The Protocol on the Accession of Vanuatu has been circulated in document WT/L/823 and the Report of 
the Working Party on the Accession of Vanuatu in document WT/ACC/VUT/17. 
3 The Protocol on the Accession of the Lao PDR has been circulated in document WT/L/865 and the 
Report of the Working Party on the Accession of the Lao PDR in document WT/ACC/LAO/45. IP/C/M/71 
 
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  International Organization of Vine and Wine (OIV), the South Centre, and the United Nations 
Environment Programme (UNEP). Furthermore, the CBD Secretariat had informed the Secretariat 
that it felt that no update was necessary since it had already renewed its request as recently as 24 November 2010 by means of a letter addressed to the WTO Director-General. This information was 
available on the Members' website. 
372.  The Chairman said that, as requested by th e Council at its last meeting, he had continued 
his consultations on the issue of observer status, in particular in light of this updated information. 
In light of these consultations, he proposed that the Council agree to grant ad hoc observer status 
on a meeting-by-meeting basis to the Cooperation Council of the Arab States of the Gulf (GCC) 
and the European Free Trade Association (EFTA), and request that he continue his consultations on the requests from the other five IGOs that had recently provided updated information, as well as 
on the requests from the remaining eight organizations that had not yet updated their information. 
373.  The Council so agreed. 
16  ANNUAL REPORT 
374.  The Chairman said that the draft Annual Re port of the Council had been circulated in 
document JOB/IP/7. It still needed to be updated so as to reflect the discussions at the present 
meeting. He suggested that the Secretariat be requested to update the draft to reflect the 
discussions at the present meeting. This draft would be faxed to Members, who would have one 
week to comment on the updated parts of the draf t report once it had been circulated by the 
Secretariat. 
375.  The Council so agreed.4 
17  OTHER BUSINESS 17.1  Dates of the Council's meetings in 2013 376.  The Chairman suggested that the Council ag ree on the following dates for its meetings in 
2013: Tuesday and Wednesday, 5 and 6 March; Tuesday and Wednesday, 11 and 12 June; and 
Tuesday and Wednesday, 5 and 6 November.5 
377.  The Council so agreed. 
17.2  Invitations to ARIPO and OAPI 378.  The Chairman recalled that, at its meeting in June 2010, the Council had agreed to grant an 
ad hoc observer status on a meeting-to-meeting basis to the African Regional Intellectual Property 
Organization (ARIPO) and the African Intellectual Pr operty Organization (OAPI). He suggested that 
the Council again invite ARIPO and OAPI to attend the Council's next formal meeting on an ad hoc 
basis. 
379.  The Council so agreed. 
17.3  Compliance with the TRIPS Agreement 380.  The Chairman recalled that the delegation of Cuba had indicated that it wished to raise under 
"Other Business" the issue of compliance with the TRIPS Agreement, in relation to which the 
delegation of the United States had referred to Rule 25 of the Council's rules of procedure 
(documents IP/C/1 and WT/L/161). In light of  the consultations he had held with the two 
delegations, he said that he intended to give the floor to Cuba followed by the United States for brief statements, and requested other Members to refrain from making statements. 
                                               
4 The Annual Report (2012) of the Council for TRIPS wa s subsequently circulated as document IP/C/62. 
5 Subsequently, the third meeting has tentatively been rescheduled for Th ursday and Friday, 10-11 
October. IP/C/M/71 
 
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  381.  The representative of Cuba emphasized that the new IP legislation presented under item 1 
by Cuba was the result of enormous efforts made by a developing, blockaded and resource limited 
country to bring its domestic provisions into conformity with the WTO Agreements. Cuba took the floor to inform the TRIPS Council of the unlawful situation that surrounded the ownership of the 
Cuban rum trademark "Havana Club" in the United St ates because of the supposed inability of that 
Member's institutions to bring the provisions of Section 211 into line with the TRIPS Agreement and the Paris Convention, as stipulated more than ten years before by the WTO Dispute 
Settlement Body. Cuba reiterated its complaint th at the treatment applied to the aforementioned 
trademark in the US territory was entirely at odds with the protection of the most basic IPR, which 
was paradoxical when the Member concerned claimed to be a leading defender of those rights. Hence the relevance of Cuba's open and transparen t treatment of this issue within the framework 
of the TRIPS Council. 
382.  With regard to the functioning of the TRIPS Agreement and compliance with its provisions, it 
was very worrying to see that the US Government appeared to be making no effort to resolve the 
impact that that situation was having on the Cuban holder of the Havana Club trademark. In this 
light, the Cuban Government would continue to monitor the development of this issue and to conduct an in-depth assessment of its consequences. Cuba also reserved the right to discuss this 
issue again at future Council meetings  or before the relevant WTO bodies. 
383.  The representative of the United States said that, as Members were aware, the matter was 
at that time under discussion in the Dispute Settlement Body. The United States continued to 
believe that the Dispute Settlement Body was th e appropriate forum for those discussions, and 
referred Members to the statements on the dispute that the United States had provided in that 
body. 
17.4  Extension of the transitional period under Article 66.1 
384.  The representative of Haiti, speaking on beha lf of the LDC Group, recalled that, at the Eighth 
Ministerial Conference in December 2011, Ministers had decided to "invite the TRIPS Council to 
give full consideration to a duly motivated request from Least-Developed Country Members for an 
extension of their transition period under Article 66.1 of the TRIPS Agreement, and report to 
thereon to the WTO Ninth Ministerial Conference" (WT/L/845). In this respect, the WTO LDC Consultative Group, following extensive consultations within and outside the Group, had just submitted document IP/C/W/583 to the Council, whereby a request was made on behalf of all 
LDCs for an extension of the transitional period as provided in Article 66.1. The LDC Consultative 
Group asked that its request be taken into consider ation and placed on the agenda of the following 
Council meeting for discussion and adoption. 
17.5  Event on "TRIPS/CBD an d Geographical Indications" 
385.  On behalf of the W/52 Coalition of WTO Me mbers, the representative of Switzerland invited 
Members to an event on "TRIPS/CBD and Geographic al Indications" to be held after the Council 
meeting. He said that these topics were well-known and of concern to the work of the Council. A 
high-level panel comprised of the ambassadors of Brazil, the European Union, Indonesia, Lesotho 
and Switzerland would discuss TRIPS/CBD and the ro le of the disclosure requirement in the TRIPS 
context as well as on the potential of GIs, in particular for rural and regional economic 
development. The panel would be followed by  two roundtables composed of experts from 
academia, and the public and private sectors. 
386.  Invitations for the event had been sent out a couple of weeks before to all missions in the 
name of the W/52 Coalition. Although the Doha Ro und was on hold on the topics to be discussed, 
the W/52 Coalition believed that Members should continue their dialogue on issues of relevance to them, engage in constructive and open exchange of views, learn from each other in order to better 
understand the concerns voiced, and look for and find mutually acceptable solutions open to 
consensus in the WTO Membership once the time was ripe for it. 
387.  The representative of Australia expressed hi s surprise and disappointment at learning about 
the side event. In Australia's view, it was no t in the spirit of recent discussions between 
ambassadors and in the General Council in support of seminars and symposiums that were 
balanced and inclusive as a means to building understanding and finding consensus. He questioned IP/C/M/71 
 
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  the balance in the event's agenda, and emphasized  that it was not a WTO event but an advocacy 
exercise organized by a number of W/52 proponen ts. His delegation would treat it as such. 
Australia had not changed its position on the W/52 proposal, and rejected the artificial parallelism that some Members were promoting in relation to TRIPS/CBD and GIs. In Australia's view, these 
issues should be dealt separately on their merits, and the linking of TRIPS/CBD with GIs was likely 
to prevent forward progress on both issues. 
388.  The representative of the United States said that he shared the concerns raised by Australia. 
389.  The representative of Switzerland thanke d the delegations of Australia and the United 
States, and expressed his hope that they would approach the event's programme with an open 
and constructive spirit. 
390.  The representative of the European Union ex pressed his support for Switzerland's statement, 
and invited Members to come numerous to the event.  
391.  The Council took note of the statements made under "Other Business". 
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