RESTRICTED  
  
IP/C/M/89/Add.1  
 
13 September 2018  
(18-5658) Page: 1/66 
Council for Trade -Related Aspects of  
Intellectual Property Rights   
 
MINUTES OF MEETING  
HELD IN THE CENTRE W ILLIAM RAPPARD ON 5 -6 JUNE 2018  
Chairperson: H.E. Ambassador Dr Walter Werner (Germany)  
Addendum  
The present document contains the statements made during the Council for TRIPS meeting held on 
5-6 June 2018.  
 
_______________  
 
Table of Contents  
1   ELECTION OF THE CHAIR  ................................ ................................ ............................  4 
2   NOTIFI CATIONS UNDER PROVIS IONS OF THE AGREEMEN T ................................ ........  4 
3   REVIEW OF NATION AL IMPLEMENTING LEGI SLATION  ................................ ................  8 
4   REVIEW OF THE PR OVISIONS OF ARTICLE 27.3(B)  ................................ .....................  8 
5   RELATIONSHIP BET WEEN THE TRIPS AGREE MENT AND THE CONVENT ION ON 
BIOLOGICAL DIVERSITY  ................................ ................................ ................................ .. 8 
6   PROTECTION OF TR ADITIONAL KNOWLEDGE AN D FOLKLORE  ................................ ..... 8 
7   NON-VIOLATION AN D SITUATION COMPLAIN TS ................................ .......................  16 
8   REVIEW OF THE IM PLEMENTATION OF THE TRIPS AGREEMENT UNDE R 
ARTICLE 71.  ................................ ................................ ................................ ...................  20 
9   REVIEW OF THE AP PLICATION OF THE PRO VISIONS OF THE SECTI ON ON 
GEOGRAPHICAL INDICAT IONS UNDER ARTICLE 2 4.2 ................................ ....................  20 
10   TECHNICAL COOPE RATION AND CAPACITY BUILDING  ................................ ............  21 
11   INTELLECTUAL PR OPERTY AND INNOVATIO N: THE SOCIETAL VALU E OF IP 
IN THE NEW ECONOMY – IP IMPROVING LIVES  ................................ .............................  21 
12   LDC GROUP  PROPOSAL ON THE IMP LEMENTATION OF ARTIC LE 66.2 OF THE 
TRIPS AGREEMENT (IP/ C/W/640)  ................................ ................................ ................  38 
13   INTELLECTUAL PR OPERTY AND THE PUBLI C INTEREST: PROMOTING PUBLIC 
HEALTH THROUGH COMPE TITION LAW AND POLIC Y................................ ......................  46 
14   INFORMATION ON RELEVANT DEVELOPMENT S ELSEWHERE IN THE  WTO  ...............  61 
15   OBSERVER STATUS  FOR INTERNATIONAL I NTERGOVERNMENTAL 
ORGANIZATIONS  ................................ ................................ ................................ ...........  62 
16   OTHER BUSINESS  ................................ ................................ ................................ .... 63 
  IP/C/M/89/Add.1  
 
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INDEX OF THE STATEMENTS MADE  
AT THE MEETING OF COUNCIL FOR TRIPS 5-6 June 201 8* 
 
 
 
Argentina  
Non-Violation  ................................ ...... 20 
Australia  
Article 66.2 ................................ ........  42 
Biotech, Biodiversity, TK  ......................  13 
IP and Innovation  ................................  21 
IP and Public Interest  ..........................  57 
Bangladesh  
Article 66.2  ................................ ... 38, 44  
Biotech, Biodiversity, TK  ......................  12 
Non-Violation  ................................ ...... 18 
Observer Status  ................................ .. 62 
Other business  ....................  62, 63, 64, 65  
Benin  
Other business  ....................  62, 63, 64, 65  
Benin, on behalf of the LDC Group  
Biotech, Biodiversity, TK  ......................  11 
Non-Violation  ................................ ...... 17 
Brazil  
Article 66.2  ................................ ........  43 
Biotech, Biodiversity, TK  ......................  11 
IP and Innovation  ................................  31 
IP and Public Interest  ...............  48, 58, 59  
Non-Violation  ................................ ...... 19 
Observer Status  ................................ .. 62 
Other business  ...............................  64, 65  
Canada  
Article 66.2  ................................ ........  41 
Biotech, Biodiversity, TK  ......................  14 
IP and Innovation  ................................  28 
Non-Violation  ................................ ...... 20 
Notifications  ................................ .........  4 
Chad, on behalf of the LDC Group  
Article 66.2  ................................ ... 37, 45  
Chile  
Notifications  ................................ .........  6 
China  
Biotech, Biodiversity, TK  ......................  15 
Information on Developments in WTO  .... 60 
IP and Innovation  ................................  36 
IP and Public Interest  ..........................  50 
Non-Violation  ................................ ...... 19 
Observer Status  ................................ .. 61 
Ecuador  
Biotech, Biodiversity, TK  ......................  10 
Non-Violation  ................................ ...... 18 
Observer Status  ................................ .. 61 
European Union  
Article 66.2  ................................ ........  40 
Information on Developments in WTO  .... 60 
IP and Innovation  ................................  21 
IP and Public Interest  .....................  54, 59  
Other business  ...............................  62, 65  
Hong Kong, China  
IP and Innovation  ................................  25 
India  
Article 66.2  ................................ ........  39 Biotech, Biodiversity, TK  ........................  8 
IP and Innovation  ...............................  35 
IP and Public Interest  ..........................  50 
Non-Violation  ................................ ..... 16 
Observer Status  ................................ .. 61 
Indonesia  
Biotech, Biodiversity, TK  ......................  15 
IP and Public Interest  ..........................  50 
Japan  
Article 66.2  ................................ ........  43 
Biotech, Biodiversity, TK  ......................  13 
IP and Innovation  ...............................  23 
IP and Public Interest  ..........................  57 
Korea, Republic of  
Biotech, Biodiversity, TK  ......................  14 
IP and Innovation  ...............................  32 
IP and Public Interest  ..........................  56 
Non-Violation  ................................ ..... 19 
Mexico  
Article 24.2  ................................ ........  20 
Notifications  ................................ .........  5 
Nepal  
Article 66.2  ................................ ........  44 
New Zealand  
Article 66.2  ................................ ........  40 
IP and Innovation  ...............................  36 
IP and Public Interest  ..........................  59 
Norway  
Article 66.2  ................................ ........  39 
IP and Innovation  ...............................  35 
South Africa  
Biotech, Biodiversity, TK  ......................  10 
IP and Innovation  ...............................  33 
IP and Public Interest  ..........  45, 46, 58, 59  
Non-Violation  ................................ ..... 15 
Observer Status  ................................ .. 61 
Switzerland  
Article 24.2  ................................ ........  20 
Article 66.2  ................................ ........  42 
Biotech, Biodiversity, TK  ......................  13 
IP and Innovation  ...............................  29 
IP and Public Interest  ..........................  55 
Non-Violation  ................................ ..... 18 
Chinese Taipei  
IP and Innovation  ...............................  24 
UNCTAD  
IP and Innovation  ...............................  36 
IP and Public Interest  ..........................  60 
United Sta tes of America  
Article 66.2  ................................ ........  39 
Biotech, Biodiversity, TK  ......................  12 
IP and Innovation  ...............................  26 
IP and Public Interest  .....................  51, 59  
Non-Violation  ................................ ..... 17 
Notifications  ................................ .........  5 
Observer Status  ................................ .. 61 
Other business  ........................  63, 64, 65  IP/C/M/89/Add.1  
 
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Venezuela, Bolivarian Republic of  
Observer Status  ................................ .. 61 
Other business  ................................ .... 65 
WTO Secretariat  Election of the Chair  ..............................  4 
Information on Developments in WTO  ... 60 
Notifications  ................................ ..... 4, 6 
Other business  ................................ ... 63 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
_______________  
*A record of statements as delivered in the formal session of the Council. Some statements have been 
lightly edited as appropriate to ensure the consistency of presentation.  IP/C/M/89/Add.1  
 
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1  ELECTION OF THE CHAI R 
1.1  WTO Secretariat  
1.  As you will recall, when the TRIPS Counci l last met on 27 February, the General Council was 
yet to agree on a slate of names of chairpersons for WTO bodies. At that time, the Council for 
TRIPS could not, therefore, elect its Chairperson for this year. For that reason, the TRIPS Council 
agreed to elect its new Chairperson at the beginning of the present meeting, with the 
understanding that, as soon as the General Council had agreed on the slate of names for 
Chairpersons, the TRIPS Council Chair -designate would take up his role and hold consultation s in 
preparation of this meeting, pending her or his formal election.  
2.  At its meeting on 7 -8 March 2018, the General Council noted the consensus on the slate of 
names for chairpersons for WTO bodies. On the basis of the understanding reached by the General 
Council, I propose that the TRIPS Council elect H.E. Ambassador Dr. Walter Werner from Germany 
as its Chairperson for the present  year. 
2  NOTIFICATIONS UNDER PROVISIONS OF THE AG REEMENT  
2.1  WTO Secretariat  
3.  The Council has received the following notifications from Members since its meeting of 27 
February 2018:  
Under Article 63.2  
4.  Mexico has notified two Decrees, which amend and supplement various provisions of the 
Industrial Property Law concerning a specific regime for geogr aphical indications, the period of 
protection of industrial drawings, designs or models, and the opposition periods for patent and 
trademark applications  (IP/N/1/MEX/I/13 and IP/N/1/MEX/I/14 respectively) . 
5.  Mexico has also notified its General Declaration o n Protection of the Appellation of Origin 
"Yahualica", which protects the fresh and dried tree chili fruit belonging to species with specific 
taxonomic classifications  (IP/N/1/MEX/G/7) .    
6.  The United States has notified updated trade secrets laws for all i ts states as well as for the 
District of Columbia, Puerto Rico and the United States Virgin Islands. Since the circulation of the 
revised draft agenda, these notifications have been made available in documents IP/N/1/USA/U/4 
to 56.  
7.  Canada has notified its  revised Trademarks Act and Patent Act  (to be circulated in documents 
IP/N/1/CAN/T/5 and IP/N/1/CAN/P/13) . These Acts were amended by Bill C -30 to implement the 
Comprehensive Economic and Trade Agreement between Canada and the European Union and its 
member  States and to provide for certain other measures.   
8.  After circulation of the revised draft agenda, the Kyrgyz Republic has submitted 16 
notifications, including the notifications of its main dedicated IP laws and regulations, other laws 
and regulations or  their amendments  (to be circulated in document series IP/N/1/KGZ/…) . 
Under Article 69  
9.  Ukraine has updated its contact points for the exchange of information and cooperation on 
trade in infringing goods .  Cambodia has notified new information regarding its  contact points. The 
Members ' transparency toolkit page has been updated accordingly.  
2.2  Canada  
10.  Canada is pleased to present notifications IP/N/1/CAN/18 and IP/N/1/CAN/19, which provide 
background on recent legislative changes to  Canada 's Patent Act  and Trade -marks Act , 
respectively. We would like to thank the Secretariat for accommodating Canada 's submission of IP/C/M/89/Add.1  
 
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both notifications  prior to this meeting,  and note that both will be circul ated in due course. In the 
mean time, Canada w ould like to take this opportunity to provide an overview of both notifications.  
11.  The first notification (IP/N/1/CAN/18) provides an overview of recent amendments to 
Canada 's Patent Act  under Bill C -30 (An Act to implement the Comprehensive Economic and Tra de 
Agreement between Canada and the European Union and its Member States and to provide for 
certain other measures ), which entered into force on 21 September 2017. Bill C -30 amends the 
Patent Act  under new sections 104 to 134, to make available a Certifica te of Supplementary 
Protection (CSP) for eligible new medicinal ingredients or new combinations of medicinal 
ingredients that are contained in human and veterinary drugs, following expiry of an eligible 
patent. The rights of a CSP match those of the patent  as they apply to a medicinal ingredient or 
combination in a drug, with a few exceptions.  
12.  Bill C -30 also amends  section  55.2(4)  of the Patent Act  to allow the Governor in Council to 
make regulations that will ensure that disputes brought under Canada 's Patented Medicines 
(Notice of Compliance) Regulations , which constitute Canada 's pharmaceut ical patent linkage 
regime, pro vides litigants with an equivalent and effective right of appeal.  
13.  Canada 's second notification (IP/N/1/CAN/19) provides an overview of  recent amendments to 
the Trade -marks Act  under Bill C -30. Specifically, Bill C -30 amends the Trade -marks Act  to protect 
agricultural products and food products as geographical indications, including associated  rights,  
exceptions,  product categories  denoti ng the scope  of rights,  and other  associated  provisions.  
2.3  United States of America  
14.  The United States welcome s the opportunity to notify US state -level trade secrets statutes, 
which do not represent changes in state law.  
15.  The United States previously notified the Defend Trade Secrets Act, which was enacted in law 
in May 2016.  This Act has provided the United States with a federal civil cause of action to help 
defend against trade secrets misappropriation.  
2.4  Mexico  
16.  Mexico wishes to inform the TRIPS Council that it has notified the WTO of two reforms to its 
Industrial Property Law and of the General Declaration on Protection of the Yahualica chili, which 
designates "Yahualica" as a new protected appellation of origin.  
17.  Firstly, concerning the reform of the Industrial Property Law with regard to patents, 
trademarks and geographical indications, which was published in the Official Journal on 13 March 
2018 and notified in document s IP/N/1/ME X/16 and IP/N/1/MEX/I/13, my delegation wishes to 
briefly describe the changes introduced  as follows :  
18.  The opposition period for patents has been reduced from six to two months.  
19.  The period of validity for industrial designs has been changed to a five-year term, renewable 
for successive five-year periods for a maximum of 25 years, and the expiry of such periods will be 
regulated in the event of non -renewal.  
20.  Patents, utility models and industrial designs will be published in the Industrial Property 
Gazette, u pon approval of the formal examination. The same procedure will be followed for 
divisional applications.  
21.  The reform also includes changes to the regime for the protection of geographical indications 
and appellations of origin, which I will explain in furth er detail under agenda item 9 on the review 
of the application of the provisions on geographical indications under Article 24.2 of the TRIPS 
Agreement . 
22.  Secondly, with regard to the second reform concerning trademarks, which was published in 
the Official Jo urnal on 18 May 2018 and notified in document IP/N/1/MEX/18  and 
IP/N/1/MEX/I/14, Mexico carried out the legislative procedure to incorporate certification marks IP/C/M/89/Add.1  
 
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into the Mexican industrial property system and introduced regulations inherent to non -traditio nal 
marks, to which we will refer in the relevant session. The purpose of this reform is to ensure a 
balanced system that is in keeping with Mexico 's geographical, historical and trade conditions.  
23.  Thirdly, Mexico notified the WTO of the General Declaration  on Protection of the Appellation of 
Origin "Yahualica", which was published in the Official Journal on 16 March 2018 and by the WTO 
in document IP/N/1/MEX/17  and IP/N/1/MEX/G/7. The Yahualica chili is the 16th Mexican 
appellation of origin. It is produced  in 11 municipalities in the states of Jalisco and Zacatecas, 
which have developed a cultivation method derived from an artisanal process to obtain the fruit, 
and which distinguishes it from other chilies produced in other regions. The Yahualica chili is t he 
main ingredient in a number of Jaliscan dishes, and therefore has now become a symbol of identity 
for the population of the region.  
2.5  Chile  
24.  Chile wish es to congratulate Mexico on the recent reform of its industrial property law , which 
– as was noted by the speaker who presented it – seeks to ensure that Mexico has a robust and 
user oriented system that is up to date and aligned with the international system.  
25.  We are confident that the reform was prepared fully in keeping with Mex ico's international 
obligations, and we note that the new version of the law provides for separate registration for 
geographical indications, complementing the domestic system for appellations of origin. By using 
intellectual property tools to provide appr opriate protection and recognition for the products in 
question and management models that allow for their proper positioning, local economies can be 
stimulated in a way that preserves the relationship between products and places and provides 
value to each  participant in the value chain, from the producer to the end consumer.  
26.  The incorporation of geographical indications into the law means that many products today 
with specific characteristics that are fundamentally but not exclusively attributable to their  
geographical origin can benefit from protection and recognition, which differentiates them in the 
market and has a direct impact on local communities and economies.  
27.  This reform is fully in line with the laws of other countries in the region, which also pr omote 
the positioning of their local products. This is the case of Chile. For almost 13 years, we have had 
in place a register of geographical indications and appellations of origin that is open to all types of 
products, whether domestic or foreign, and a Seal of Origin programme that promotes the use of 
those rights as an effective means of protecting, preserving and showcasing the unique, traditional 
products of our country for the benefit of the communities where those products are made.  
28.  We appreciate an d welcome Mexico 's legal reform in the area of geographical indications, as 
we see that it complements and completes the system for appellations of origin. It is an example 
and an inspiration to those who wish to promote the use of these essentially collec tive rights for 
the benefit of the local communities that keep the traditions of our countries alive and maintain 
their cultural richness.  
2.6  WTO Secretariat  
29.  At past successive Council meetings, we have reported on the de velopment and 
implementation of the e -TRIPS project, which includes a Notification Submission System (NSS) 
and an Information Gateway.  
30.  We have reported to the Council over many recent meetings on the development and 
implementation of the e -TRIPS project.  The WTO is custodian of a vast amount of notification and 
review material concerning TRIPS, and much related documentation.  The central purpose of the e -
TRIPS project is to make it easier for you, as delegates, to check and to update your notifications, 
and to make it easier to access and make us e of this material.  It fits entirely within the framework 
for notification and documentation procedures already laid out in the TRIPS Agreement  itself and 
in the past decisions of this Council, and thus respects f ully the guidelines set for us as the 
Secretariat. It is simply meant to offer a more user -friendly and efficient way of handling just the 
same material.  IP/C/M/89/Add.1  
 
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31.  The e -TRIPS comprises (i) a way in for new information – the Notification Submission System 
(NSS), (i i) a way out for the information, once processed – the TRIPS Information Gateway,  and 
(iii) an information management system (IMS) that enables the Secretariat to work more 
efficiently with TRIPS information, to ensure it flows more efficiently, to ensure the accuracy and 
consistency of documentation, and to support Members in making effective use of the information.  
32.  As Members, your encounter with the system naturally arises when providing updated 
notifications, and when you seek to consult information on the record. The NSS will be our 
recommended tool for the first function, and the TRIPS Information Gateway  for the second.   
33.  We are happy to announce that the first of these, the e -TRIPS NSS, is very close to 
completion. We aim to launch it for your optiona l use this summer, in advance of the busiest 
period for submissi on of new material, in the lead -up to the final Council meeting of the year.  We 
will be reaching out to delegations at that time through a wor kshop and demonstration, and we 
will remain on ha nd to respond to requests for briefings and demonstrations more informally for 
individual delegations.  At the same time, we will be turning to refining and developing the TRIPS 
Information Gateway – the improved means of gaining access to and using this i nformation – 
although this will take some more time, as we are anxious to ensure that it is designed and 
implemented in a way that meets your diverse practical needs.  
34.  What will the launch of the e -TRIP NSS mean for you? The e -TRIPS NSS is an entirely optio nal 
online tool for submitting TRIPS notifications, reviews and reports. The existing pathways for 
submitting notifications in other ways remain entirely open, but the intention is to provide a user -
friendly tool for Members to be able more easily to ident ify the gaps in their current notifications. 
We hope that it will be  a practical, user -friendly and efficient way to submit your information to the 
WTO Secretariat  and to generally stay current with your TRIPS notification obligations.  
35.  We have endeavoured to build the principles of transparency into the system. As examples, 
you will be able to see how many notifications you have submitted, how many are being processed 
by the WTO Secretariat , and how ma ny have been issued. To allow you to streamline as much as 
possible, a feature to create templates is also in place.  
36.  We appreciate that learning how to operate any new database system requires training. In 
that regard, we will make training sessions and materials on the use of the new system available, 
and thi s will form a regular part of our technical assistance activities. Further, we will reach out to 
you within the coming few months regarding an informal training session, to be held at the WTO, 
on how to use the e -TRIPS NSS.  
37.  The e-TRIPS Gateway will give ac cess to  a database of WTO information related to the TRIPS 
Agreement  – including your notified IP laws, your interventions at the TRIPS Council, your 
submissions to the TRIPS Council, among other types of TRIPS notifications, review materials and 
reports. Due in no small part to your interest and feedback, we have made a considerable amount 
of progress in developing the search and reporting features.  
38.  We would like to brief you on just a sample of the types of features you can expect to see on 
the e-TRIPS Ga teway . 
39.  For example, you will be able to see, in just a couple of clicks, all TRIPS -related materials 
submitted by a Member, within a given time -frame.  
40.  The e -TRIPS Gateway will also enable you to search the text of notified laws.  
41.  The last feature we would l ike to highlight this morning is  one which will allow you to produce 
a custom report of selected interventions in the TRIPS Council. What will this look like?  
42.  After specifying your search criteria, you can select interventions you would like to view and 
then produce a simple Word document that contains those interventions you selected, along with 
some key information such as the dates of the meeting and the name of the agenda item.  IP/C/M/89/Add.1  
 
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43.  Similar to last summer, for those who may recall, we will be in touch regar ding a very 
informal demonstration session to be scheduled this summer for interested delegations where the 
features will be explained in more detail, and we would invite your feedback and comments.  
44.  In additio n to this, we will soon have a -test site - of the e-TRIPS Gateway  available for you to 
test and offer your suggestions and feedback. As we are still working on uploading all of the past 
TRIPS data, we will not be able to roll out the complete test site to you. However, as the TRIPS 
data is uploaded ont o the gateway, more search forms and features will become available for you 
to test.  
45.  In that light, we will send an email to our TRIPS delegate mailing list, letting you know when 
the test site is available. Also, you are welcome to register your interest  in receiving a version of 
the "test site" of the e-TRIPS Gateway . Please send an email to IPD@wto.org .  
46.  To close, we thank you for your interest and engagement in this project – especially all of the 
heightened interest over the past year. We appreciate very much that many of you have taken the 
time to strenuously test the system and provide feedback on your experience. This feedback loop 
has permitted us to create something we truly believe will facilitate easier and mor e practical 
access to TRIPS documentation and information, and to optimize our own internal procedures.  
47.  I emphasize that the e -TRIPS systems are entirely within the requirements of the Agreement 
itself and the existing decisions of this Council concerning  notification requirements.  
48.  We are sincerely grateful for both your bearing with us during these past few years of its 
development, and for those delegates who took the time to test the NSS earlier this year. Your 
invaluable comments have helped us improv e and fine -tune this system.  
3  REVIEW OF NATIONAL I MPLEMENTING LEGISLAT ION 
49.  No statements were made under this agenda item.  
4  REVIEW OF THE PROVIS IONS OF ARTICLE 27.3 (B)  
5  RELATIONSHIP BETWEEN  THE TRIPS AGREEMENT  AND THE CONVENTION ON 
BIOLOGICAL DIVERSITY   
6  PROTECTION OF TRADIT IONAL KNOWLEDGE AND FOLKLORE  
6.1  India  
50.  India is an ancient civilization with a rich body of traditional knowledge associated with 
biological resources. This traditional knowledge is both coded, as in  the texts of Indian systems of 
medicine such as Ayurveda, Unani and Siddha; and non -coded, which exists in the oral 
undocumented traditions. India is also one of the seventeen identified mega bio -diverse countries 
of the world, home to a vast and a rich d iversity of biological resources.  
51.  TRIPS CBD l inkage is important for India and other developing countries because it seeks to 
address bio -piracy. It has been a long -standing demand that patents should not be granted for 
existing traditional knowledge and a ssociated genetic resources. This is all the more important for 
India, which has been a major victim of bio -piracy.  
52.  Pursuant to the Convention on Biological Diversity (CBD), India has been active, in taking 
steps to implement its provisions leading to conservation of biodiversity, its sustainable use and 
equitable sharing of benefits. We enacted the Biological Diversity  Act in 2002, notified the 
Biological Diversity Rules in 2004 and also established a three -tier institutional structure.  
53.  India also developed a Traditional Knowledge Digital Library (TKDL) database to prevent 
misappropriation of traditional knowledge at in ternational patent offices to tackle bio -piracy. India 
has signed TKDL Access Agreement with ten International Patent Offices.  IP/C/M/89/Add.1  
 
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54.  TKDL attempts to overcome language and format barriers by scientifically converting and 
structuring the available contents (Arou nd 0.3 million medicinal formulations) of the ancient texts 
on Indian Systems of Medicines into five international languages, namely, English, Japanese, 
French, German and Spanish. The results obtained by India 's Traditional Knowledge Digital Library 
(TKDL ) in 206 cases where the patent applications were either withdrawn/cancelled/declared 
dead/terminated, or where the applicant had to amend the claims or when the examiners rejected 
the application on the basis of TKDL submissions brings out the interaction  that traditional 
knowledge can have with the patent system.  
55.  But, improving prior art searches through the TKDL was only one part of the solution. Further, 
TKDL represented only a subset of the universe of available traditional knowledge and the realm of 
traditional knowledge in areas other than herbal cures and genetic resources was not covered by 
it.   
56.  While India is undertaking a number of measures at the national level in order to prevent 
misappropriation of genetic resources and / or associated traditi onal knowledge, the problem has 
an obvious international dimension and this requires an international solution, to be effective.  
57.  Article 16.5 of the Convention on Biological Diversity clearly recognizes “that patents and 
other intellectual property rights  may have an influence on the im plementation of this 
Convention ”. It mandates that the Parties “shall cooperate in this regard, subject to national 
legislation and international law, in order to ensure that such rights are supportive of and do not 
run coun ter to its objectives.”  
58.  The Nagoya Protocol of the Convention on Biodiversity (CBD) entered into force on 12 October 
2014 and 105 Countries, including India have ratified the Protocol, till now. The Doha Ministerial 
Declaration in paragraph 19 mandated tha t the TRIPS Council examine the relationship between 
TRIPS and CBD, and the protection of traditional knowledge and folklore.  
59.  However, TRIPS Agreement  continues to ignore numerous IPR -related obligations in the CBD 
which are of interest to the developing countries. The disclosure proposal (IP/C/W/474) which was 
submitted in 2006 was followed up by the submission TN/C/W/52 in June 2008 with the support of 
109 Members . The latest submission on this issue TN/C/W/59 in April 2011, which is a draft 
decision to enhance mutual supportiveness between TRIPS Agreement  and CBD" has been 
proposed by a vast majority of WTO Membership, including India. This proposal seeks amendment 
of TRIPS Agreement  by inclusion of a new Article 29 bis for disclosure of origin of geneti c 
resources and/or associated traditional knowledge.  
60.  We also need to take note of the recent developments of the 2030 Agenda for Sustainable 
Development to which we are all committed, specifically calls for promoting access to and fair and 
equitable sharin g of benefits arising from the utilization of genetic resources and associated 
traditional knowledge, as internationally agreed, in targets 2.5 and 15.6;  
61.  Given the mandate given by our Ministers in Doha and the mandate under the Sustainable 
Development Goa ls 2.5 & 15.6, to avert misappropriation of existing knowledge, promote 
conservation of the genetic resource with the view to maintain diversity and protect livelihoods of 
those who are directly dependent on them, it is imperative we expedite our work towa rds a 
positive outcome.  
62.  In light of these and to look at possible ways to energize negotiations on the subject in the 
WTO, I am happy to inform that Centre of WTO Studies, Indian Institute for Foreign Trade, New 
Delhi and South Centre, Geneva are organizi ng an International Conference on the TRIPS -CBD 
Linkage: Issues and Way Forward on 07 -08 June at Room no.  IX of the UN Palais. The event is co -
sponsored by the Permanent Missions of Brazil, India, Indonesia and South Africa to the WTO. We 
invite you all fo r the two -day deliberations.  
63.  It would be quite useful to the delegates of the TRIPS Council, if the CBD Secretariat is 
requested to brief the TRIPS Council on the latest developments in the implementation of the 
Nagoya Protocol. The briefing by the CBD Secretariat  would be very important to understand the 
implications of the entry into force of the Nagoya Protocol, which has been acceded by 105 
Members, on the TRIPS Agreement . We reiterate our demand for a formal briefing by the CBD IP/C/M/89/Add.1  
 
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Secretariat in the inter est of the large majority of Members. We also support E cuador 's proposal 
for updating the three factual briefs by the Secretariat . 
64.  I conclude by stating that the TRIPS -CBD issue is one of the outstanding implementation 
issues and positive outcomes on this is an important deliverable of the Doha Round for the 
developing countries.  
6.2  Ecuador  
65.  Ecuador 's position on these three agenda items is well-known . For five years now, I have 
been bringing our views, which remain su bstantially unchanged, to the attention of other 
Members. This is the last time I will address you, so, while I run the risk of boring you, I will 
reiterate once again that, in our view, we must encourage discussion on revising Article 27.3(b) of 
the TRIPS  Agreement  so as to enable the Council to reflect and adopt new rules on the 
patentability of all life forms or parts thereof. We take the view that we cannot possibly endanger 
or adversely affect life forms of peoples and cultures. This type of patent sho uld therefore be 
prohibited, since life or parts thereof should not be considered a tradeable good subject to 
inventions and, therefore, patents.  
66.  On numerous occasions we have expressed our firm belief in the relationship between the 
Agreement on TRIPS and  the Convention on Biological Diversity (CBD), and we therefore reiterate 
the need for multilateral legal instruments that can improve the use of genetic resources, 
traditional knowledge and traditional cultural expressions, and give them effective and ade quate 
protection. We congratulate the institutions that have organized the International Conference 
on TRIPS -CBD Linkage at the UN Palais des Nations on 7 and 8 June  2018, an event that will 
encourage discussion on the important relationship between the tw o instruments.  
67.  Lastly,  I would like to take a few minutes to talk about the updating of the factual notes on 
the three aforementioned issues, which has become a taboo subject for one delegation that we 
feel has not understood Ecuador 's objective. We recognize  the progress made on this matter, in 
that it has practically been agreed that this update should take place; all that remains is for the 
United States to join the agreement that has slowly been forming.  
68.  Some progress has even been made by sitting  down with that delegation and explaining what 
Ecuador was seeking to achieve by putting forward this possibility, and we must thank the 
previous Chair for her good offices in this respect. My delegation remains open to continuing 
consultations with the de legation of the United States in order to achieve consensus. We thank the 
US delegation for its openness and willingness to engage in these consultations.  
69.  My delegation has done its utmost to reach an agreement and ensure some follow -up on the 
request made  in November  2012 for the Secretariat to update the factual notes on the relationship 
between the TRIPS Agreement  and the Convention on Biological Diversity (IP/C/W/368/Rev.1), the 
review of the provisions of Article 27.3(b) (IP/C/W/369/Rev.1), and the pro tection of traditional 
knowledge and folklore (IP/C/W/370/Rev.1). The last compilation of ideas was produced in 2006, 
which is why we need updated documents that will enrich the debate and help us move forward in 
the discussions. The sole objective of the idea proposed is for Members to have more detailed 
information, which could be presented by the Secretariat in a neutral manner, without 
compromising any of the Members ' positions. We wish to emphasize this, as each Member 's 
position would remain intact an d, moreover, more of the information conveyed during our 
discussions would be available to us, compiled in the Secretariat 's updated versions.  
6.3  South Africa  
70.  We recall Paragraph 19 of the Doha Ministerial Declar ation pursuing a work programme 
including under the review of Article 27.3(b), the review of the implementation of the TRIPS 
Agreement  under Article 71.1 and the work foreseen pursuant to paragraph 12 of the declaration, 
to examine, inter alia , the relatio nship between the TRIPS Agreement  and the Convention on 
Biological Diversity, the protection of traditional knowledge and folklore.  
71.  A large group of developing country Members proposed an amendment of the TRIPS 
Agreement  to introduce a mandatory disclosur e requirement in patent applications and have IP/C/M/89/Add.1  
 
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sought clear guidance on this matter as part of the modalities decision. The basis of this 
amendment is contained in TN /C/W/59 which requires access and benefit sharing, prior informed 
consent and disclosure of  the source of material when a patent is applied for. South Africa is a 
Contracting Party to the Convention on Biological Diversity and ratified the Nagoya Protocol on 
Access to Generic Resources and Fair and Equitable Sharing of Benefits Arising from thei r 
Utilization in 2013 which came into force October 2014.  
72.  Despite the extensive legal regime that applies in South Africa, we still experience significant 
instances of bio -piracy and misappropriation. National regimes are therefore necessary, but 
insuffic ient steps to protect traditional knowledge or the use of indigenous biological resources. A 
multilateral system within the context of the TRIPS Agreement  that regulates disclosure and 
access remains the best guarantee against misappropriation of genetic r esource and traditional 
knowledge. While related negotiations, such as the WIPO IGC process, can complement the 
negotiation of TRIPS issues in the WTO, they are not an effective substitute for achieving results in 
the WTO TRIPS context. Other international  fora lack an effective dispute settlement mechanism to 
ensure compliance with the obligations, and there is no certainty that negotiations will be 
successful in the other fora.  
73.  In respect of procedural issues, this delegation once again calls on the Secr etariat to update 
the three factual notes contained in documents IP/C/W/368/Rev.1, IP/C/W/369/Rev.1 and 
IP/C/W/370/Rev.1. We believe that an update of these documents will stimulate a debate that is 
characterize by persistent restatement of long held posit ions. We further support a briefing by the 
CBD Secretariat on the Nagoya Protocol and subsequent developments.  
6.4  Brazil  
74.  Brazil has a well -known position on the importance of promoting the neutral support between 
the TRIPS Agreement  and the Convention on Biological Diversity (CBD), which is contained in 
document TN/C/W/59.  
75.  As mentioned by our colleague from India, national initiatives to regulate the relationship 
between IP and biodiversity are important, but they show their limit when other countries can use 
genetic resources without respecting the principles enshrined in the CBD. This is why we support 
an amendment to the TRIPS Agreement  to introduce a mandatory requirement of disclosure of the 
origin of genetic resour ces in patent applications. Misappropriation of genetic resources and 
associated traditional knowledge could only be properly addressed with the full disclosure 
requirement in patent applications. This would allow monitoring and tracing the use of genetic 
resources, bringing strength and transparency to the international patent system. It is important 
to emphasize that, in the proposed mechanism to preclude misappropriation of genetic resources 
and associated traditional knowledge, patent offices would be n othing more than a checkpoint to 
collect and to disseminate information. It would not in any way represent an unnecessary burden 
to the national systems of IP or to applicants.  
76.  As you mentioned, there were great, recent developments at the CBD level, with the entering 
into force of the Nagoya Protocol. I would also that the UN convention on the law of the sea is 
discussing a treaty on the on the conservation and sustainable use of marine biological diversity of 
areas beyond national jurisdiction. More recen tly, the UN sustainable development goals have 
given us a clear mandate to safeguard biodiversity and to promote compliance with Nagoya.  
77.  Therefore, Members would greatly benefit from an update of the factual notes, as proposed by 
Ecuador and South Africa. This update does not prejudge positions of delegations, as those 
documents are restricted to facts, and would be the very least to address Member States ' concern 
with the protection of their genetic resources, in which regard intellectual property has a co ncrete 
effect. The relationship between the TRIPS Agreement  and the CBD is also one of the outstanding 
implementation issues of the WTO. We urge delegations to show a constructive spirit in order to 
have a sustainable discussion on a topic that is ever mor e important. Lastly, we also join our 
voices to invite you all to the International Conference on TRIPS and CBD, which will be held this 
week at the Palais des Nations.  IP/C/M/89/Add.1  
 
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6.5  Benin,  on behalf of the LDC Group  
78.  At this stage of our work, the LDC Group would like to comment not only on agenda item 4, 
"Review of the Provisions of Article 27.3(b) ", but also, in light of the mandate set forth in 
paragraph 19 of the Doha Declaration, on items 5, 6 and 8.  
79.  The LDC Gr oup would like to reaffirm its M embers ' keen interest in examining, within the 
context of the work of the TRIPS Council and in accordance with Article 27.3(b) of the TRIPS 
Agreement , the relationship between the TRIPS Agreement  and the Convention on Biological 
Diversity, and the protection of traditional knowledge and folklore.  
80.  The use of LDC genetic resources, whether illegal or legal, is not covered by any multilateral 
regulatory framework. The disclosure of the origin of these  resources remains crucial not only for 
their protection, but also for the sharing of the benefits arising from their use.  
81.  The review of the implementation of the TRIPS Agreement  under Article 71.1 also remains a 
priority for LDCs. Paragraph 19 of the Doha  Declaration in fact provides an additional mandate 
from our Ministers, establishing a work programme on this subject. There is no deadline for 
concluding this work programme.  
82.  LDCs are keen to protect traditional knowledge and traditional cultural expressi ons against 
misappropriation, misuse and unlawful exploitation, all of which is important in the context of the 
WTO mandate.  
83.  The LDC Group will examine this issue in terms of the real needs and constraints faced by its 
Members, with a view to submitting it s contributions to the TRIPS Council very shortly.  
6.6  United States of America  
84.  Regarding genetic resources, traditional knowledge and folklore, we continue to believe that 
WIPO serves as the best foru m to address these issues.  
85.  The WIPO IGC is looking at addressing unresolved issues and working on a common 
understanding of core issues, using an evidence -based approach and examples of national 
experiences.  
86.  We take note that the WIPO General Assembly has  agreed upon the renewal of the mandate 
of the WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, 
Traditional Knowledge and Folklore (the IGC) for the 2018 -2019 biennium, as well as the work 
plan for the IGC for the biennium, and will be meeting soon to discuss these issues.  
87.  The United States will continue to engage in technical discussions at WIPO 's IGC and looks 
forward to hearing more from the demandeurs regarding data supporting their position on this 
issue.  
88.  With respect to  the various requests made today, the United States is not in a position to 
support these requests, but remains open to discussions, including bilaterally with delegations in 
between and at the margins of TRIPS Council meetings.  
6.7  Bangladesh  
89.  On the agenda items 4,5 and 6, we align ourselves with the statement delivered by Benin on 
behalf the LDC group. Our firm position is already known to all. Although there is no change, I 
would like to reiterate our position for  the sake of record.  
90.  On agenda item No. 4, that is the Review of the Provisions of Article 27.3 (B), we do not 
support the patenting of life forms comprising plants and animals. We call for the review of this 
Article in order to protect developing countrie s and LDCs from the negative effects of this provision 
on the key sectors that affect their livelihood such as agriculture, health, food and climate change. 
This would help ensure inter alia : food security and preserve the integrity of rural and local 
comm unities. Patenting of life forms at a multilateral level should be prohibited.  IP/C/M/89/Add.1  
 
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91.  On the relationship between the TRIPS Agreement  and the CBD, we hold that states have the 
right and duty to protect their traditional knowledge and genetic resources. There is therefore a 
need to amend the TRIPS Agreement  with the view to require patent applicants relating to 
biological materials to provide information on the source and country of origin of biological 
resources and traditional knowledge used in the invention.   
92.  In addition, the applicants must show evidence of prior informed consent from, and benefit 
sharing arrangements with, the authorities and or persons under the relevant national regime. This 
disclosure requirement, which is consistent with the transparency principle established in the 
multilateral trading system, will help to reduce the number of erroneous patents and biopiracy. We 
believe that whilst the Traditional Knowledge should receive legal recognition, it 's protection could 
as well contribute signifi cantly to the achievement of development goals.  
6.8  Japan  
93.  Regarding this agenda, we have already discussed for a long time at a series of meetings of 
the TRIPS Council. The delegation of Japan, therefore, believes that o ur position is well -known 
among Members, so this time we would like to focus on some major points in our intervention.  
94.  This delegation would like to reiterate our position that the convention on biological diversity 
is by nature not relevant with the intel lectual property system and it is necessary to seek 
appropriate ways to deal with the misappropriation of genetic resources. This means we should 
bear in mind that any measures taken must not adversely affect the existing intellectual property 
system or hi nder the creation of innovations utilizing genetic resources and associated traditional 
knowledge.  
95.  This delegation is firmly convinced that the disclosure requirement would discourage 
industries from conducting research and development activities on biolog ical materials outside 
their own countries. This is the very consequence of the disclosure requirement that Japan has 
been concerned about. Therefore, Japan believes that the disclosure requirement is not an 
appropriate means for dealing with such misappro priation, so therefore, we have to make sure not 
to include it in the intellectual property system.  
96.  In addition, this delegation believes the WIPO IGC is the most appropriate forum for holding 
technical discussions on Genetic Resources, Traditional Knowled ge and Folklore from IP aspects. 
Based on the mandate which is renewed in the last WIPO General Assembly, the 36th Session of 
IGC will be held this month and deal with the issues regarding to genetic resources, using 
evidence -based approach.  
6.9  Switzerland  
97.  Switzerland would like to thank the delegation of India for its update and information on the 
conference on the TRIPS CBD linkage.  
98.  We will participate in the conference with a speaker. In his presentation, the re presentative of 
the IP office will also explain how Switzerland implemented in its law a requirement for disclosing 
the source of genetic resources and traditional knowledge in patent applications.  
99.  The topic of the conference this week focuses on one of the three elements of the W/52 
proposal. Besides the TRIPS -CBD linkage, the proposal further covers the aspect of a better 
protection for geographical indications, i.e. the GI -register and the GI -extension.  
100.  All three requests are important topics treated i n both the WIPO and here in the WTO. They 
have been on the agenda for a long time and we call upon the WTO to continue working towards a 
solution.  
101.  We believe that an update of the S ecretariat 's factual notes should contribute to the 
Council 's work, should allow it to take stock of the state of play, and help us identify the way 
forward.  IP/C/M/89/Add.1  
 
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6.10  Australia  
102.  Australia considers the World Intellectual Property Organization 's Intergovernmental 
Committee on Intellectual Property  and Genetic Resources, Traditional Knowledge and Folklore is 
best placed, with appropriate technical expertise, to consider the complex issues relating to 
intellectual property and genetic resources and associated traditional knowledge and cultural 
expres sions. The WIPO IGC is currently undertaking text -based negotiations with the objective of 
reaching agreement on an international legal instrument, or instruments, relating to intellectual 
property, which will ensure the balanced and effective protection o f genetic resources, traditional 
knowledge and traditional cultural expressions.  
103.  We look forward to the WIPO ICG meeting in late June and the opportunity to make progress 
on genetic resources negotiations for the benefit of all Members and Indigenous Peopl es. 
104.  In relation to TRIPS and the Convention on Biological Diversity, Australia considers the TRIPS 
Agreement  and the CBD are consistent.  
105.  Australia fully implements our obligations under both agreements, which we view as 
mutually supportive.  
106.  In relation to  the procedural matters, Australia is open to a briefing by the CBD Secretariat 
on the Nagoya Protocol, and can be flexible in relation to the Secretariat updating the three factual 
notes.  
6.11  Korea, Republic of  
107.  Our delegation 's view on this issue remains unchanged. Korea still believes that the 
relationship between the TRIPS and the CBD are complementary, thus there is no need to revise 
the TRIPS Agreement  in this regard.  
108.  In addition, as many other M embers,  we also think that the WIPO IGC is the best forum to 
discuss this issue further. However, we are open to the proposal to have the WTO Secretariat  
update the background paper on this issue and to invite the CBD Secretariat to brief the Council on 
the issue s related to the CBD, including the Nagoya protocol.  
6.12  Canada  
109.  Canada continues to firmly believe that the TRIPS Agreement  and the Convention on 
Biological Diversity are complementary, and that there is therefore no ne ed to amend the TRIPS 
Agreement  in this regard.  
110.  Canada welcomes the ongoing work of the WIPO Intergovernmental Committee on 
Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC). Canada 
continues to believe that the IGC is the best and most appropriate forum for discussion on these 
complex issues, providing an important venue to bring together expert views, to discuss their IP -
related dimensions in order to identify evidence -based, balanced, appropriate and mutually -
benefici al approaches. Canada has been, and continued to be, an active and committed participant 
to this important work, and welcomes the concrete discussions and exchanges of national 
experiences at the IGC, which are so important to accurately pinpointing the is sues at hand. In 
this regard, Canada looks forward to the two upcoming sessions of the IGC this summer, to be 
held June 24 -29 and August 27 -31, respectively.  
111.  Similar to our positions at the IGC, Canada also continues to welcome presentations by any 
interes ted Members containing the latest information on the operation and functioning of their 
national IP regimes concerning genetic resources and traditional knowledge, to inform other 
Members in this Council. Canada notes the valuable and factual exchanges tha t have taken place 
on other issues at recent meetings of the TRIPS Council, such as on “IP and Innovation” and “IP 
and the Public Interest”, and would welcome presentations on national regimes regarding genetic 
resources and traditional knowledge at future  meetings of the Council, with a view to informing the 
TRIPS Council Membership in this regard. This suggestion remains without prejudice to our 
position that the IGC remains the most appropriate forum for negotiations in this area.  IP/C/M/89/Add.1  
 
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112.  With respect to procedu ral matters at TRIPS Council, as Canada  has previously noted, and 
without prejudice to our position on substantive matters, Canada is not opposed from a procedural 
standpoint to a briefing from the CBD Secretariat to the TRIPS Council, should there be suff icient 
interest from other Members on the matter. Canada could also support the compilation of the 
update to the three factual notes on the TRIPS Agreement  and the CBD (documents IP/C/W/368, 
IP/C/W/369, and IP/C/W/370) by the WTO Secretariat . Canada remain s of the understanding that 
this would remain a purely factual collating exercise, and in both cases, this is without prejudice to 
national positions on these issues.  
6.13  China  
113.  The relationship between TRIPS Agreement  and CBD is an important issue in this  Council. 
Over years, M embers have conducted a lot of useful discussions on this issue. China attaches gr eat 
importance to TRIPS and CBD and  hopes that Members  could constructively involve in this 
discussion presently.   
114.  Regarding the substantial issues, China notes that the majority of Members  support to 
amend the TRIPS Agreement  so as to ensure the mutually support of TRIPS Agreement , the CBD 
and its Nagoya Protocol. China believes that the introduction of a mandatory disclosure 
requirement, prior informed consent and the benefit sharing, could prevent the misappropriation 
and erroneous patents.  
115.  As to th e issue of disclosure, China has  provided the detailed suggestions on improving the 
transparency on genetic resources  utilization, preventing the misappropriation of genetic resources 
and traditional knowledge, and preventing the grant of erroneous patent in two documents 
TN/C/W/52 and TN/C/ W/59 co -sponsored by different M embers.  
116.  China also believes the prior informed c onsent and benefit sharing could make better 
protection for the genetic resources. While the benefits arrangement on contractual basis and the 
database solution could not serve the purpose of sufficient protection for genetic resources.  
117.  As regard to proced ure, China supports to invite the CBD Secretariat to brief on the Nagoya 
Protocol and hopes that t he Secretariat could renew the three  factual notes （IP/C/W/368/Rev.1, 
IP/C/W/369/Rev.1 ，IP/C/W/370/Rev.1 ). China believes that the discussion and negotiation in  
WIPO 's IGC could not hinder the M embers to find a solution in WTO as Ministers ha ve given the 
Council the mandate to examine the relationship between TRIPS and CBD.  
6.14  Indonesia  
118.  As Members are well aware , we have e xtensively discussed these issues for many years. The 
relationship between TRIPS Agreement  and CBD as well as the protection of traditional  knowledge 
and folklore under the agenda items is utmost our priority to us. Our delegation  believe s that the 
TRIPS Agreement  should be in line with the purpose and objective of the CBD and the Nagoya 
Protocol. In particular, the provision of prior inform ed consent and access and benefit sharing. In 
accordance with this issue, Indonesia is of the view that Article 27.3 (b) needs to be provided with 
legal obligation to take all necessary measures for fair and equitable sharing benefits as required 
by the CBD and the Nagoya Protocol. The l ack of such legal norm in TRIPS will defeat the purpose  
and objectives of the CBD and the Nagoya Protocol.  
119.  Finally, would like to take this opportunity to express our support  to the International 
Conference on the TRIPS -CBD linkages as put forward in the initiative by India on 7 to 8 June 
2018. We have been undertaking measures at national  level in order to prevent misappropriation 
of genetic resources in our associated traditional  knowledge. In order to make the measures to be 
effective there is a legal obligation to establish a mandatory disclos ure requirement in patent  
application s.  IP/C/M/89/Add.1  
 
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7  NON-VIOLATION AND SITUATION  COMPLAINTS  
7.1  South Africa  
120.  During the Uruguay Round, when WTO Members agreed to incorporate the GATT 1947 into 
the WTO Agreement, they made non -violation and situation complaints, as contained in GATT 
Article  XXIII:1(b) and (c), available with respect to the agreements covered by the DSU. The only 
current exception is the TRIPS Agreement . In Article 64.2 of the TRIPS Agreement , Members 
agreed that the DSU would not apply to the TRIPS Agreement  for a period of five years after the 
entry into force of the DSU. In Article 64.3 of the TRIPS Agreement , Members further agreed that 
during this period the TRIPS Council would examine the scope and modalities for these complaints. 
This moratorium has bee n extended eight times, most recently in a Ministerial Decision at the 
11th Ministerial Conference in Buenos Aires, Argentina in 2017. In this Decision, Members agreed 
to maintain the moratorium and directed the TRIPS Council to continue its examination of  the 
complaints. The TRIPS Council was also directed to make recommendations to the next Ministerial 
Conference, which will be held in December 2019.  
121.  The non -violation remedy is an "exceptional" remedy  (Panel Report, Japan – Film, 
para. 10.37) . Non -violati on complaints have been extremely rare under both the GATT and the 
WTO. Under the GATT 1947, working parties and panels considered only eight cases involving non -
violation complaints. Since the establishment of the WTO, only three panels, and the Appellate  
Body in one dispute, have examined non -violation complaints in any detail  (Panel Reports, Japan – 
Film; Korea –Procurement; EC –Asbestos; Appellate Body Report, EC –Asbestos) . These figures 
are even more remarkable when placed in a historical context: out  of 132 adopted and unadopted 
GATT Panel and Working Party reports, only eight involved non -violation complaints, while out of 
more than 200 adopted WTO panel reports, just three made findings on non -violation complaints. 
It is also noteworthy that not all  of these non -violation complaints were successful. This experience 
with non -violation complaints in GATT/WTO jurisprudence suggests that the evolution of the 
multilateral trading system, and the expansion in the provisions of WTO Agreements regulating 
non-tariff measures, may have had the effect of making non -violation complaints largely 
redundant as a remedy.   
122.  This delegation does not suggest that there is no further scope for discussion of this issue. 
The proponents of the application of non -violation co mplaints under the TRIPS Agreement  have 
not provided concrete examples of the kind of scenarios under which an otherwise TRIPS -
consistent measure would impair or nullify benefits beyond those arising from the obligations set 
out in the Agreement. Thus, it may be useful to clarify what situations proponent Members wish to 
avoid by having a non -violation remedy available under the TRIPS Agreement  and, on the other 
hand, to ensure that a non -violation remedy in the TRIPS context would not be so broad as to 
have the effect of expanding the existing TRIPS obligations.   
123.  Perhaps there is already broad agreement amongst Members that non -violation complaints 
are of an exceptional nature to which a cautious approach should be taken. This could already 
constitute a mo dality that all Members seem to agree on. There seems further scope to address 
Article 26 of the DSU that sets out special procedures that apply in the case of successful non -
violation complaints. In WTO disputes, the usual remedy, under Article 19.1 of th e DSU, is the 
withdrawal of the WTO -inconsistent measure. As non -violation complaints relate to measures that 
are otherwise legal, Article 26.1(b) of the DSU states clearly that there is no obligation on the 
respondent to withdraw the measure. Rather, the respondent is required to address the 
nullification and impairment caused by its measure by, for instance, offering compensation. 
Members may agree that compensation would be explicitly excluded as an option should non -
violation claims apply to the TRIPS A greement .  
124.  This delegation stands ready to discuss this issue further with any Member that may have an 
interest to do so.  
7.2  India  
125.  India's position on the issue of non -violation complaints under the TRIPS Agreement  remains 
unchange d. Serious concerns remain on the debilitating impact, non -violation complaints in TRIPS 
can have on the regulatory policy space of Members , on TRIPS flexibilities as well as increasing the IP/C/M/89/Add.1  
 
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complexity in interpreting the TRIPS provisions. It can not only h ave a chilling effect on Member 's 
exercise of their IP regimes but also severely restrain ability of Members to achieve other public 
policy objectives.  
126.  The absence of non -violation complaints in the TRIPS context does not in any manner 
threaten or dilute t he enforceability of TRIPS -related rights and obligations. On the contrary, the 
application of non -violation complaints in the TRIPS context could potentially present issues 
relating to rights of IP right holders versus the legitimate exercise of regulator y policy choice by 
governments. Introducing non -violation and situation complaints into the TRIPS Agreement  is 
unnecessary and inconsistent with the interests of the WTO Members. Any benefits arising from 
the Agreement can be adequately protected by applying the text of the Agreement in accordance 
with accepted principles of international law, and without intro ducing the legally uncertain notion 
of non -violation and situation complaints.  
127.  We look forward to work with like -minded Members in making non -violation complaints 
inapplicable to TRIPS. We also wish to reiterate that until there is a consensus on the scop e and 
modalities of the applicability of NVCs to TRIPS, NVC s will not apply to the TRIPS Agreement .  
7.3  Benin,  on behalf of LDC Group  
128.  The LDC Group would like to reaffirm its belief that Members should work towards a fair and 
balanced permanent solution to the issue of non -violation complaints and agree on appropriate 
modalities, in accordance with the provisions of Article 64.2 and 64.3 of the TRIPS Agreement . 
129.  The Group firmly believes that new approach es could help to achieve this result and move 
Members beyond the stage where they are merely reaffirming established positions. It encourages 
the Members therefore, to work towards seeking relevant recommendations to make to Ministers 
or the next Ministeri al Conference.  
7.4  United States of America  
130.  The United States' position on this issue remains unchanged and while we recognize that the 
decision by Ministers in December places a moratorium on Members bringing no n-violation 
nullification and impairment (NVNI) complaints under TRIPS for a period of two years, we reiterate 
our support for allowing the current moratorium to expire so that Members may bring NVNI 
complaints in the future, as appropriate.  
131.  The language of Articles 64.1 and 64.2 explicitly states that, after five years, complaints 
under Article XXIII:  1(b) and (c) of GATT would be available under the Agreement. Therefore, the 
United States is of the view that these drafters intended for non -violation comp laints to constitute 
an additional obligation to Members that is not expressed elsewhere in the provisions of the 
Agreement.  Disallowing Members from having recourse to this remedy is the action that upsets 
this balance.  
132.  We also disagree with some Members ' assertion that NVNI claims could undermine 
regulatory authority and limit the ability of a Member to undertake policies to promote certain 
public policy objectives.   
133.  The United States is of the view that the availability of non -violation complaints will  protect 
Members from evasions of obligations under the TRIPS Agreement  while preserving the ability of 
any Member to implement legitimate social, economic development, health, environmental, and 
cultural policies.  
134.  Further, non -violation complaints will on ly be successful if a measure could not have been 
foreseen when the Uruguay Round negotiations were underway. Because there are a number of 
ways to implement social and cultural policy goals, a Member may take this element of non -
violation complaints into consideration when crafting measures to protect these goals.  
135.  Finally, WTO adjudicatory bodies will continue to be bound by Article 3.2 of the DSU, which 
clearly states that "recommendations and rulings of the Dispute Settlement Body cannot add or 
diminish the rights and obligations provided in the covered agreements."  Furthermore, past GATT IP/C/M/89/Add.1  
 
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and WTO rulings provide sufficient guidance on the scope of such complaints, which ensure that 
the scope of any non -violation complaint would have to be precisely drawn  and clearly supported 
with detailed justification.  
136.  We continue to believe that WTO Members are being deprived of an important tool to enforce 
their rights under the TRIPS Agreement , which is why we support the expiration of the current 
moratorium so that  complaints of this type may be applicable to the TRIPS Agreement . 
137.  While we remain of the view that the text of the WTO Agreements and dispute settlement 
rulings provide Members with sufficient guidance on the application of NVNI disputes to the TRIPS 
Agreement , the United States remains open to considering specific proposal from Members wishing 
to further examine the scope and modalities for complaints of these types.  
7.5  Ecuador  
138.  As delegations have stated before, the position of Ecuador has not changed, so we would like 
our statement at the previous meeting of this Council to appear in the minutes. (See minutes of 
the eighty -eighth session of the Council held on 27 February 2018: IP/C/M/88/Add.1 para 140).  
139.   We would like to acknowledge the Buenos Aires Ministerial decision approving an extension 
of the moratorium. Our delegation maintains its well -known position that non -violation complaints 
are not applicable to the TRIPS context,  as indicated in document IP/C/W/385/Rev.1 co -sponsored 
by Ecuador. However, our delegation will continue to participate proactively with a view to 
reaching a mutually satisfactory agreement in the run -up to MC12.  
7.6  Bangladesh  
140.  We thank you for leading the small group discussion prior to this meeting. It was very useful 
for us in engaging with the stakeholders in a more informal way.  
141.  As we mentioned on earlier occasions, my delegation's position on the proposed lifting of 
morat orium on the non -violation and situation complaints is well -known. We would like to see a 
permanent moratorium in this regard.  
142.  However, we would like to hear from the proponents of the application their views and ideas 
about the scope and modalities of pro ceedings related to non -violation and situation complaints as 
required by Article 64.3 of the TRIPS Agreement . Only then, the Council will be in a better position 
to examine and consider the proposal. The concept is still an unknown territory, and unless t he 
scope and modalities are perceived first, we cannot go any further in this discussion.  
143.  As we perceive it now, if non -violation and situation complaints are made applicable to 
TRIPS, any issue under the sun can be brought as cases under this umbrella. Cl ear delimitations, 
therefore, need to be conceived and thoroughly examined first. We, however, reiterate our 
readiness to engage with any interested delegations.  
7.7  Switzerland  
144.  Switzerland holds the opinion that non -violation  and situation complaints should be 
applicable also under the TRIPS Agreement . Despite the recurring decisions in the past to further 
extend the moratorium, we firmly believe that the TRIPS language is very clear in this respect – 
the moratorium should end  and non -violation complaints become applicable.  
145.  The mandate of Art. 64.2 and 64.3 does not instruct the Council to examine whether or not 
non-violation complaints should apply under the TRIPS Agreement . Such discussion is outside the 
mandate 's scope. The mandate is clearly limited to the Council examining the scope and modalities 
for non -violation complaints and then submitting its recommendations to the Ministerial 
Conference for approval. Although the Ministerial Conference has repeatedly granted an exte nsion 
to the period, which was initially limited to five years after the entry into force of the WTO 
Agreement, this has still not brought about any result. And thus, the Council has still not fulfilled 
its mandate.  IP/C/M/89/Add.1  
 
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146.  As we have repeatedly stated and has als o been pointed out by South Africa, non -violation 
complaints are an exceptional remedy. They are solely to provide predictability and security to all 
Members under the TRIPS Agreement , just as they do under the GATT and GATS. And they 
preserve Members ' ability to implement legitimate social, economic, development, health, 
environmental and cultural policies.  
147.  Opponents of the applicability of non -violation complaints under TRIPS have voiced a 
number of concerns. We would like to further allay those concerns . Firstly, it is important to stress 
that non -violation disputes cannot be used as a tool to increase the level of intellectual property 
protection established under the TRIPS Agreement . The DSU applies, and its Article 3(2) 
prescribes that “recommendation s and rulings of the DSB cannot add to or diminish the rights and 
obligations provided in the covered agreements.” A second important point we recall is that one 
key condition for a non -violation complaint to succeed is that the challenged measure could no t 
have been foreseeable. The recourse to a TRIPS flexibility is a foreseeable measure, and thus 
cannot be challenged by means of a non -violation complaint.  
148.  GATT together with the DSU provide guidance on the applicability and use of non -violation 
complaint s in the context of the TRIPS Agreement . The relevant rules are complemented by a 
number of panel and Appellate Body decisions. They have conducted a significant analysis of non -
violation provisions. Their decisions provide WTO Members with the necessary s cope and set of 
modalities applicable to non -violation complaints, also under the TRIPS Agreement .  
149.  With the objective of ending the repeated renewal of the moratorium, the TRIPS Council 
should eventually move forward and resolve the stalemate situation. T he sole purpose of 
Article  64.3 TRIPS was a moratorium for Members to have five more years to discuss the scope 
and, if found necessary, special modalities for the TRIPS context.   
150.  Although we believe that rules already in place for dispute settlements in the WTO are 
sufficient, we are open to considering specific proposals which allow for a more concrete 
examination of the scope and modalities for non -violation and situation complaints under the 
TRIPS  Agreement. The conditions mentioned earlier in my deleg ation's statement today may 
provide a start for such a discussion in the Council.  
7.8  Brazil  
151.  The debate on the applicability of non -violation complaints to the TRIPS Agreement  has been 
part of the Council's agenda for many years a nd our delegation would also like to recall the 
importance of addressing the concerns raised by Members more than fifteen years ago in 
document IP/C/W/385. Since the last Ministerial Conference, in light of the mandate given to this 
Council, our delegation  has intensified work on the study of non -violation and situation complaints, 
despite the fact that demandeur countries have not provided us with information about scope and 
modalities. It is up to demandeurs to propose scope and modalities of NVSCs, as al l other 
countries have reiterated their view that NVSC should not apply to the TRIPS, thus there is no 
need to discuss scope and modalities. To automatically apply GATT cases without addressing 
TRIPS specificities – and they are many – does not seem the be st way ahead. Brazil remains 
attentive to any proposal that may be brought by them. We have just heard some information 
provided by Switzerland, which we thank and we will carefully analy se and discuss bilaterally.  
152.  Based on information available, however, we remain unconvinced of the necessity to provide 
NVSC in the TRIPS Agreement . 
153.  Protection against evasion of obligations is fully ensured by the ordinary dispute process 
available under Article 64.1, which proved itself adequate to guarantee compliance wit h the 
provisions of the TRIPS Agreement . It has been invoked and used with great success in the past 
and no concrete case of the necessity for extending the mechanism to NVSC was presented so far . 
7.9  Korea, Republic of  
154.  Our delegation 's view on this issue remains unchanged. We are not convinced by some 
Members ' argument that n on-violation situation complaint should be applied to the TRIPS IP/C/M/89/Add.1  
 
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Agreement . However, we are willing to engage in fu rther discussions on this issue as 
constructively as possible.  
7.10  China  
155.  Regarding non -violation and situation complaints, China appreciates the efforts made by 
delegations in Buenos Aires and welcomes the outcome on this issue.  
156.  China reaffirms the position that n on-violation and situation complaints are not applicable 
under TRIPS Agreement , which has been elaborated in document IP/C/W/385/Rev.1 proposed by 
16 Members including China. Also, we welcome the discussion on this issue in accordance with the 
decision and  the mandate given by the Buenos Aires Ministerial Conference.  
7.11  Argentina  
157.  Argentina 's position on this matter is well-known  and remains unchanged. We believe that 
complaints of this type are not applicable to the TRIPS Agreement . This position is based on the 
arguments set forth in document IP/C/W/385/Rev.1, which Argentina co -sponsored together with 
a large number of other Members. Argentina is ready to continue constructive discussions on this 
issue with a view to find ing an acceptable and permanent solution.  
7.12  Canada  
158.  Our position on this issue is well -known, and remains unchanged. Canada continues to have 
concerns regarding the applicability of the NVNI remedy to the TRIPS Agreement . 
159.  Recogniz ing that the current moratorium exists based on consensus, we nevertheless trust 
that Members can continue to discuss these issues in a collegial manner in the TRIPS Council, 
especially in light of the high concentration of Members with concerns in this ar ea. 
8  REVIEW OF THE IMPLEM ENTATION OF THE TRIPS AGREEMENT  UNDER ARTICLE 71.  
160.  No statements were made under this agenda item.  
9  REVIEW OF THE APPLIC ATION OF THE PROVISI ONS OF THE SECTION O N 
GEOGRAPHICAL INDICAT IONS UNDER ARTICLE 2 4.2 
9.1  Mexico  
161.  As mentioned under item 2, the reform of the Industrial Property Law, published in the 
Official Journal on 13 March 2018, reflects our country 's commitment to establishing legal 
provisions which are equivalent to those of our trading partners and consistent with the TRIPS 
Agreement  and which aim to create schemes to improve the protection of industrial property, so 
as to promote economic growth a nd ensure greater certainty in international trade.  
162.  Mexico's updated replies to the GI checklist were published on the WTO's official website in 
document IP/C/W/117/Add.14/Rev.1. In accordance with the provisions of the TRIPS Agreement , 
our country made am endments to the Industrial Property Law, which can be summarized as 
follows:  
163.  Geographical indications have been incorporated into domestic legislation, and a common 
procedure has been established for the processing and use of national appellations of orig in and 
geographical indications.  A procedure has been created for the registration of foreign appellations 
of origin and geographical indications in the national registry, and administrative offences have 
been established in this area.  These reforms have b een in force since April 2018 and we consider 
that they will have a positive impact for users of the industrial property system.  
164.  The delegation of Mexico wishes to thank you for listening to this brief presentation and 
reiterates its readiness to reply to any questions by the Members of this Organization.  IP/C/M/89/Add.1  
 
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9.2  Switzerland  
165.  Switzerland submitted its revised answers to the checklist IP/C/13 in September 2017. We 
trust that this will enhance the transparency of its domestic system fo r the protection of 
geographical indications and will facilitate substantive discussions on the topic in this Council.  
166.  Considering the fact that most Members ' contributions under this agenda item date back a 
long time, such as to the late 1990s, Switzerlan d would like to invite other Members to update 
their answers to the checklist IP/C/13. This will allow Members to rely on accurate information 
when dealing with the protection of GIs. On this occasion, Switzerland would like to commend 
Mexico for having su bmitted an up -date of its responses to the checklist recently.  
10  TECHNICAL COOPERATIO N AND CAPACITY BUILD ING 
167.  No statements were made under this agenda item.  
11  INTELLECTUAL PROPERT Y AND INNOVATION: TH E SOCIETAL VALUE OF IP IN THE 
NEW ECONOMY – IP IMP ROVING LIVE S 
11.1  Australia  
168.  Australia is pleased to introduce the discussion on intellectual property and innovation at this 
meeting, guided by the discussion paper IP/C/W/642 Intellectual Property and Innovatio n: The 
Societal Value of  IP in t he New Economy - IP Improving Lives. Australia is pleased to co -sponsor 
this agenda item with the European Union, Hong Kong China, Japan, the Republic of Korea, 
Switzerland, Chinese Taipei and the United States. Our discussion today is designed to highlight 
the role of intellectual property frameworks and how they support innovation through promoting 
and protecting the expression of new ideas and inventions, fostering creativity, supporting 
cross-border collaboration, trade and participation in glob al value chains. In supporting and 
incentivising innovation, intellectual property frameworks make a significant contribution to 
improving lives through social and economic growth and advancement across a wide range of 
sectors, relevant to developed and de veloping Members such as education and training, creative 
works, health, the environment and transport. As part of the 2018 theme under the Intellectual 
Property and Innovation agenda, the Societal Value of Intellectual Property in the New Economy, 
Members  are invited today to share national and regional experiences on the positive human 
impact of intellectual property and innovation frameworks and how they improve lives.  
169.  Turning now to the case of Australia, Australia 's intellectual property rules -based f ramework 
has played a role in changing the everyday lives of people worldwide through innovations that 
transcend national borders. We will showcase a number of innovative examples of how intellectual 
property frameworks have protected new ideas and contrib uted to improving the lives of people in 
Australia and around the globe.  
170.  Turning to the example of Reach and Match, the award -winning innovation – The Reach and 
Match Learning Kit is an innovative educational kit designed by an Australian woman that 
empow ers children with disabilities and people in main -stream education to learn to together in an 
inclusive environment. The Reach and Match Learning Kit includes braille and print forms for both 
visually impaired and sighted children to develop literacy as we ll as cognitive motor, social and 
communication skills. It uses a tactile texture with braille markings, bright colours and distinct 
sounds to enhance the learning experience of all children. Reach and Match has trademark 
protection, it has won several awa rds, including one for social inclusion and innovation design. It 
was also one of the winners at the MIKTA Education and Emergencies Challenge and the inventor 
will receive a share of AU$2million from the Australian Government 's Department of Foreign Affai rs 
and Trade, to help develop and implement the product.  
171.  The second example is called the Yield. It was designed by an Australian entrepreneur, Ms 
Ros Harvey, which uses innovative technology and the internet of things to develop agri -business, 
improve pr oductivity and reduce waste. Ros Harvey 's invention, known as The Yield is designed to 
help deliver food from farm to table. The Yield helps growers take the guess work out of growing, 
with sensors, apps and data to monitor and predict conditions on the gr ound so farmers can make 
faster and better decisions about their crops. The Yield actively uses the IP system, including IP/C/M/89/Add.1  
 
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trademark protection to support the business. Innovation and the ability of IP protection 
encourages the creation of inventions like th ese, which can improve everyday lives. We invite all 
Members to share their views on how intellectual property and innovation has improved lives.  
11.2  European Union  
172.  Intellectual property rights play a crucial role in catalysing innovation and creativity, 
promoting economic growth and development, creating jobs, improving the quality and enjoyment 
of our lives, and combatting the manifold challenges we face as individu als, as nations and as a 
global community.   
173.  The societal value of IP in the New Economy becomes obvious in a large number of sectors, 
and we will see this documented, once all the Members ' interventions of today are uploaded in the 
e-TRIPS database. The E U would like to highlight two of them in its intervention today: Health 
Care and Transport.  
174.  The recent report on the State of Health in the EU (State of Health in the EU "Companion 
Report 2017) concluded that only by fundamentally rethinking our health and  care systems can we 
ensure that they remain fit -for-purpose. This means systems which aim to continue to promote 
health, prevent disease and provide patient -centred care that meets citizens ' needs will have to 
adapt in a digitalised world. As in many part s of the world, health and care systems in Europe 
require reforms and innovative solutions to become more resilient, accessible and effective in 
providing quality care to European citizens.  
175.  Europe 's health and care systems, like in many other regions of t he world, face challenges. 
These are ageing, multi -morbidity, health workforce shortages, and the rising burden of 
preventable non -communicable diseases caused by risk factors such as tobacco, alcohol, and 
obesity, and other diseases including neuro -degene rative and rare diseases. We are also seeing a 
growing threat from infectious diseases due to increased resistance to antibiotics and new or 
re-emerging pathogens. Without innovative solutions, which are often incentivised by properly 
functioning IP system s, we will not be able to face the challenges of tomorrow.  
176.  Digital solutions for health and care can increase the wellbeing of millions of citizens and 
radically change the way health and care services are delivered to patients, if designed 
purposefully a nd implemented in an effective way. Digitisation can support the continuity of care 
across borders, an important aspect for those who spend time abroad or to bring health services to 
places of the world where due to local factors such services are unavaila ble now. Digitisation can 
also help to promote health and prevent disease, including in the work place. It can support the 
reform of health systems and their transition to new care models, centred on people 's needs and 
enable a shift from hospital -centred systems to more community -based and integrated care 
structures. The digitisation and a shift from hospital -centred systems will also increase the access 
of developing countries to high quality health services that were out of reach before.  
177.  The EU is suppo rting the development of various approaches in high performance computing, 
data analytics and artificial intelligence, which can help design and test new healthcare products, 
provide faster diagnosis and better treatments. But succeeding in these endeavour s depends on 
the availability of new and innovative technologies that ultimately will have to be developed by 
private health care industries which depend on their ability to retrieve a return on their 
investment. Without functioning IP systems, this paradi gm shift will not happen or the benefits will 
only be fully exploitable in those places that properly protect IP.  
178.  Health and care authorities across Europe face common challenges, which can be best 
addressed jointly. To this end, the Commission has been wo rking with the EU Member States, 
regional authorities and stakeholders to tap into the potential of innovative solutions, such as 
digital technologies and data analytics, and in doing so assist EU Member States in pursuing the 
reforms of their health and c are systems. The EU provides its support through funding and actions 
that promote policy cooperation and exchange of good practice and by ensuring appropriate legal 
certainty with regards to protecting the relevant IP rights related to the inventions and c reations in 
those sectors. EU funding supports research and innovation in digital health and care solutions, 
notably through the Horizon 2020 programme. It also supports the building of infrastructure for IP/C/M/89/Add.1  
 
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cross-border exchange of patient summaries and elec tronic prescriptions, with funding from the 
Connecting Europe Facility programme.  
179.  Cooperation structures have also been developed; for example, the European Innovation 
Partnership on Active and Healthy Ageing, the Active and Assisted Living Joint Programm e, and 
public -private partnerships such as the Innovative Medicines Initiative and the Electronic 
Components and Systems for European Leadership. Regional and national smart specialisation and 
innovation strategies also play a central role in the developme nt of stronger regional ecosystems 
around the healthcare and innovation domain. Since 2004, two eHealth Action Plans have provided 
a framework for policy action for the Member States and the Commission, and the eHealth 
Stakeholders Group has played an impo rtant role.  
180.  The second sector we would like to highlight where the new digital economy will dramatically 
alter our current lives is transport. Electricity as an energy vector for vehicle propulsion offers the 
possibility to substitute oil with a wide diver sity of primary energy sources. This could ensure 
security of energy supply and a broad use of renewable and carbon -free energy sources in the 
transport sector which in turn can help the implementation of the European Union targets on CO2 
emissions reducti on. Without the incentives of IP protection, the dramatically high amounts of 
investment needed to change our current transport technology based on combustion engines will 
not take place.  
181.  Electric vehicle 'tank-to-wheels ' efficiency is a factor of about 3 higher than internal 
combustion engine vehicles. Electric vehicles emit no tailpipe CO2 and other pollutants such as 
NOx, NMHC and PM at the point of use. Electric vehicles provide quiet and smooth operation and 
consequently create less noise and vibration . 
182.  Electrification of transport (electromobility) is a priority in the Community Research 
Programme. It also figures prominently in the European Economic Recovery Plan presented in 
November 2008, within the framework of the Green Car Initiative.  
183.  The Europea n Commission will support a Europe -wide electromobility initiative, Green 
eMotion, worth €41.8 million, in partnership with forty -two partners from industry, utilities, electric 
car manufacturers, municipalities, universities and technology and research in stitutions. The aim of 
the initiative is to exchange and develop know -how and experience in selected regions within 
Europe as well as facilitate the market roll -out of electric vehicles in Europe. The Commission will 
make €24.2 million available to finance  part of the initiative 's activities.  
184.  The development and large -scale deployment of Connected and Automated Mobility (CAM) 
provides a unique opportunity to make our mobility system safer, cleaner, more efficient and more 
user-friendly.  
185.  The needed innovative technology for the upcoming paradigm shift in the transport sector 
will never available without properly functioning IP systems, IP systems that allow innovators to 
reap the benefits of their massive R&D investments, which dwarf any public money  that even the 
EU or other developed regions will be able to make available.  
11.3  Japan  
186.  First of all, the delegation of Japan would like to express its sincere appreciation to the 
Secretariat for providing us an opportunity to s hare our ideas and experiences. Just for your 
information, handouts of the slides of this presentation are available at the entrances of this 
room.1 
187.  Firstly, this delegation would like to mention that innovation can contribute to a higher 
quality of living , which is also emphasized in the concept paper. Last year, the WIPO introduced 
"10 Innovations That Are Improving Lives", at WIPO -World -IP-Day. They are examples that 
improve lives, such as Medical Delivery Drones, which deliver vital medical supplies to patients 
living in difficult -to-reach parts; and mobile water -safety checking systems that help users to find, 
monitor and map the quality of water and sanitation sites.  
                                                
1 This PowerPoint presentation is available i n Room Document RD/IP/21.  IP/C/M/89/Add.1  
 
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188.  At the same time, this delegation would also like to emphasize that "Innovation and IP  have 
a positive correlation". For instance, please have a look at the bar graph on the lower left of this 
slide, which shows the number of patent applications for inventions on data structures field. 
Looking at this bar graph, you will note the surges of patent applications filed during 2001 -2006, 
the era when DVD technology was developed; and 2009 -2013, the era when video -distribution -
technology was developed. Picking up this graph as an example, this delegation is of the view that 
"Innovation and IP pote ntially have synergy effects to improve people 's lives."  
189.  We now will show you an example of the startup company that made good use of IP to 
improve people 's lives through its product.  
190.  Slide 2 shows the world 's first, fully automatic laundry -folding robot d eveloped by a 
Japanese start -up company. The product called "Laundroid" was developed by the company "seven 
dreamers laboratories, inc." Laundroid is based on a combination of advanced technologies, 
namely image analysis, AI, and robotics. The product was exhibited at the Consumer Electronics 
Show in 2018. And the company was awarded as the regional final at the Start -up World Cup 
2018.  
191.  The company says, the product can save 375 days of your lifetime because it is estimated 
that the average person spends a bout 375 days folding clothes. In this regard, this delegation 
would like to reemphasize that the product definitely improves people 's lives. Taking this 
opportunity, this delegation would like to show you a short video which illustrates this interesting 
product2  
192.  This delegation would like to mention how the company succeeded in developing Laundroid. 
Firstly, the company was smart enough to adopt a comprehensive IP strategy. Specifically,  or 
simply, it carefully chose whether its technology should be opene d or closed, that is, filing it as a 
patent application or protecting it as undisclosed information. Secondly the president of the 
company took the initiative to raise the employees ' awareness of IP by following the IP strategy.  
193.  In conclusion, such IP -oriented activities led to the company 's forming alliances with big 
companies that also have the latest technologies. Furthermore, having the IP rights, the company 
improved its credibility, which led to ample fundraising from banks as well as government 
agenc ies. 
194.  This delegation would like to stress here that "the stable and efficient IP system has 
supported and promoted innovations that improve lives."  
195.  In this connection, from the viewpoint of governmental policies, this delegation would also 
like to mention that the Japan Patent Office released a brochure in April this year called "IP 
Strategies for Start -ups", which targets small -scale companies. This brochure highlights best 
practices for start -ups, including "Actually faced IP issues with IP" and "How comp anies in and 
outside Japan overcame and succeeded" based on real cases. This delegation believes that this 
brochure can assist start -up companies in developing business strategies utilizing IP, and further 
contribute to developing innovations that can impr ove lives.  
196.  As we have seen in the slides, a stable and efficient IP system can support and promote 
ground -breaking innovations such as Laundroid that make our lives easier. Since this delegation is 
of the view that innovation and IP potentially have synerg y effects that can improve and make our 
lives easier, Japan will remain committed to developing the even more user -friendly IP system to 
encourage further innovations.  
11.4  Chinese Taipei  
197.  As we all know, it is inventions  and new creations that provide us with the possibilities and 
the means to improve lives. And, this holds true in all walks of life.  
198.  In 1958, Jack St. Clair Kilby and Robert Norton Noyce invented the integrated circuit (IC), 
and this year marks its 60th anniversary. Since then, the development of the semiconductor 
                                                
2 Video not available in this document.  IP/C/M/89/Add.1  
 
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industry has been the driving force behind the digital revolution. Not on ly has this been the 
foundation on which modern technologies, such as home appliances, computers, the internet, 
cloud computing, smart phones, etc., have been built, but it remains the basis of today 's emerging 
technologies as well, such as the Internet of  Things (IoT), artificial intelligence (AI), and self -
driving automobiles. I believe that the example Laundroid demonstrated by Japan also use ICs. 
So, we can definitely say that the burgeoning development of the semiconductor industry, and the 
inventions and creations it has inspired, have improved our lives in so many ways, not least in 
terms of convenience.  
199.  I would like now to give you just a very short history of our own development in this field 
over the last 30 or so years. We made the decision, in th e 1970s, to make an all -out effort to 
develop our own IC industry. From then onwards, the Industrial Technology Research Institute 
(ITRI) started to introduce US IC designs and manufacturing technologies. These were later 
combined with ITRI 's self -develope d technologies, then transferred to the United Microelectronics 
Corporation (UMC) and the Taiwan Semiconductor Manufacturing Company (TSMC). Little by little, 
a strong IC industry with an established upstream and downstream supply chain was developed.  
200.  From 1987, TSMC and UMC focused on the so -called "foundry model" (that is, separating the 
semiconductor fabrication plant operation from the integrated circuit design operation into 
separate companies or business units) in order to generate innovation in the manufacturing 
process. As a result, they have become global leaders in semiconductor manufacturing 
technologies. In 2017, we were ranked the world 's third largest in term of gross industrial output 
values of the semiconductor industry chain. Of these, foun dry had the largest market share 
globally, accounting for over 70%.  
201.  In addition to the transfer of technology from the US and the ITRI in the early stages, the 
comprehensive protection of intellectual properties, such as patents and trade secrets, was also  a 
key element in promoting the expansion of our semiconductor industry. For instance, according to 
TSMC 's Annual Report, "IPRs protect the company 's advanced and leading -edge technologies, 
safeguard its freedom to operate, and enhance its competitive posi tion". And, according to the 
Annual Reports of TSMC and UMC for 2017, "the combined total of patents granted worldwide 
exceeded 40,000 as of the year 's end". Regarding the protection of trade secrets, the Trade 
Secrets Act was instituted in 1996. In 2013, a criminal liability clause was introduced into the Act 
to provide more comprehensive protection for intellectual properties within our territory.  
202.  Future applications like the IoT and AI will undoubtedly depend on the semiconductor 
industry as their founda tion. We are currently actively pushing for development of industries in 
areas such as, smart cities, smart manufacturing, automatic vehicles, augmented reality (AR), 
virtual reality (VR), and information security. Our belief is that the semiconductor indu stry's 
existing advantage coupled with our continuing investment will generate more relevant inventions 
and creations that will further improve the quality of people 's lives.  
203.  Intellectual property and innovation are indispensable forces driving economic g rowth. I 
hope you found these examples and experiences useful. We look forward to hearing those of other 
Members, and we would very much welcome more sharing and discussion of IP policies and 
experiences between Members in the future.  
11.5  Hong Kong, China  
204.  Innovation and technological progress contribute significantly to improving our lives. The 
cornerstone of our advancements in research and development is a robust IP regime. It is a 
principal means for establishing an d protecting creations of the mind, and provides a legal 
foundation for incentivising and commercialising innovations. IP is undoubtedly a crucial part of a 
successful innovation system.  
205.  Our Government has been working hard to enhance our IP ecosystem by c ontinuing to 
implement a series of measures to facilitate and encourage exploitation of the economic potentials 
of IP, as well as to promote Hong Kong as the IP trading hub in the region.    
206.  For example, our Government is pressing ahead with the establishm ent of an original grant 
patent (OGP) system, which bears strategic significance for Hong Kong to develop into a regional IP/C/M/89/Add.1  
 
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innovation and technology hub and IP trading nexus. Subject to the progress of essential 
preparatory tasks, our target is to launch th e OGP system in 2019 the earliest.  
207.  We have also introduced a bill into its legislation in April 2018 to expand the scope of profits 
tax deductions for capital expenditure incurred for the purchase of IP rights from the existing five 
types to eight. The thr ee additions are rights in layout -design of integrated circuits, plant varieties 
and performances. The legislative proposal would encourage businesses to further consider using 
and purchasing the three types of newly added IP rights. It would also bring ab out positive effects 
to the development of the local IP industry and help contribute to a more favourable environment 
for innovation in Hong Kong.  
208.  On the other hand, our Government is also assisting our businesses to leverage on their IP 
assets and engage  in cross -sector IP commercialisation in the wake of the knowledge -based 
economy. I am pleased to share with you today two remarkable inventions which make our lives 
healthier, safer and more comfortable.   
209.  The first one is a practical, award -winning face mask invented by a local pharmaceutical and 
healthcare product company. This face mask can effectively filter airborne particulates and viruses 
and kill 99% of bacteria within five minutes while maintaining high breathability and 
comfortability. It receive d Silver Award at the 2016 International Exhibition of Inventions in 
Geneva and has been registered as patent and trademark. Another mask developed by the same 
company received Gold Award at the same event in 2017. The inventions of these face masks are 
supported and sponsored the Innovation and Technology Fund under our Innovation and 
Technology Bureau. As at March 2018, the Innovation and Technology Fund has funded around 
7400 projects.   
210.  Another notable example is a Wildfire Detection Robot invented by a  young local start -up. 
This robot helps to mitigate fire disasters and safeguard natural resources. It is the world 's first 
automated detection system which is equipped with thermal imaging sensors and artificial 
intelligence vision technology to spot fire s in areas as small as two metres by one metre and within 
a five -kilometre radius.   
211.  This start -up has been recognize d through several awards, including the prestigious 
"Entrepreneur of the Year" at the 2015 IBM SmartCamp Global Finals in the US, and the A sia 
Pacific ICT Alliance Awards the year after.   
212.  After obtaining patents relating to the technology of the robot, this award -winning start -up 
introduced the robot globally across Hong Kong, Mainland China and various countries.   
213.  To-date, over 100 wildfir e detection robots have been deployed in 41 cities in China and 
Indonesia, while 1.3 million hectares of land are being protected. The company has also 
successfully carried out projects and conducted demonstration/proof -of-concept worldwide, 
including in C hina, Indonesia, Malaysia, Cambodia, Canada, Mexico, Brazil and South Africa.   
214.  These are just a few successful stories and we believe that there would be more to come.  
We would continue to support our industries and all stakeholders to harness the power of IP rights 
and commercial insights and innovations in future.   
11.6  United States of America  
215.  The United States is pleased to co -sponsor this agenda item and contribute to the discussion 
of the Societal Valu e of IP in the New Economy – IP Improving Lives. Around the world, new 
technologies and vibrant creative endeavours are contributing to better outcomes for individuals 
and societies while increasing the quality of life.  
216.  IP systems play a critical role. For  instance, patent, regulatory data, and trade secret 
protections provide innovative risk -takers with the confidence needed to devote what may be 
years and millions of dollars into an endeavour that may or may not produce a return on 
investment. Copyright c an serve as an engine for creativity, cultural preservation, and cross -
border cultural exchange. Through advances in technologies, it has never been easier for societies IP/C/M/89/Add.1  
 
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around the world to interact, share music, movies, or writings, and lend their experti se to solve 
pressing problems far from home.  
217.  During the last session of IP and Innovation, we shared information on how IP -intensive 
industries contribute to the economy of the United States. Today, we will explore the important 
contributions that innovati ons and creative content from these industries provides to societies and 
individuals around the world.   
Creative industries  
218.  Creative industries are helping to unite populations and contribute to cross -cultural exchange 
around the world through the combina tion of robust IP protection, trade networks, and 
technological advances. This includes music, television programme s, books, games, films, fashion, 
and more.  
219.  For these and other products and services, technologies have increased the market for these 
cultur al goods, which helps create jobs in a broad number of direct and indirect industries. For 
example, each successful film or television programme  creates opportunities for not only directors 
and actors, but also costume designers, makeup artists, advertisin g professionals, lawyers, and 
more.  
220.  As legitimate platforms to distribute content continue to flourish, the opportunity to access 
these products grows. As we examine this topic, the music industry provides a multi -faceted 
example. Music brings people toge ther, connects diaspora populations to their homeland, 
promotes cross -cultural awareness and understanding, and helps people to better understand 
themselves and others.  
221.  In a recent study conducted in Portugal, researchers found that young students exposed to a 
six-month musical programme  that included both national songs and songs from another culture 
found that those students who participated in the programme  demonstrated a reduced prejudice 
towards the non -nationals whose music they had learned.   
222.  Copyright is a critical tool to enable the continued creation of music and robust copyright 
protection and trade rules help facilitate cross -border exchanges. Content delivery platforms, such 
as Apple Music and Spotify, have revolutionized how music is lis tened to, and continues to unite 
cultures throughout the world. There are over 400 content delivery platforms globally.  
223.  A healthy music ecosystem, for example, contributes and provides benefits to all aspects of 
society. There are many different contributo rs, creators, and investors. However, there are 
harmful players as well who do not contribute (pirates, stream -rippers, etc), and diminish the 
ability of creators to generate a positive livelihood.  
Agriculture  
224.  Outside of the arts, society benefits from both large -scale innovation and targeted 
technological improvements that save and improve the lives of millions.  
225.  In a multi -stakeholder initiative that includes the African Agricultural Technology Foundation, 
Gates Foundation, USAID, Monsanto, the Internat ional Maize and Wheat Improvement Center, and 
participating African governments, innovations have been designed to match African farmers ' 
needs.  
226.  Through the Expanding Water Efficient Maize for Africa programme , these partners have 
come together to develop,  license, and utilize a hybrid maize seed that can more efficiently utilize 
water and provide pest resistance —two particularly pernicious problems for farmers in this region. 
To date, farmers in sub -Saharan Africa have planted over 180,000 hectares of hybr id seeds which 
farmers have reported doubling over previous yields. By voluntary arrangement, over 23 seed 
companies are licensed to access the hybrids without paying any royalty to the company that 
developed the technology.  IP/C/M/89/Add.1  
 
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Technology  
227.  Breakthrough advance s in technology are also providing innovators with new platforms to 
help others. Recently, researchers at the California Institute of Technology developed an app that 
makes use of an existing device that is worn like sunglass, but composed of high -powered lenses 
and computer processors, that could improve the lives of millions of visually -impaired individuals. 
The app, using a high-tech headset, can quickly analyse  a room and provide the wearer with audio 
directions and hints to navigate complicated spaces.  The app calls out directions, announces 
obstacles, staircases, and railings to guide the user to safely reach his or her destination.  
228.  These types of innovations bring enormous hope and potential to the over 253 million people 
that the WHO estimates live w ith blindness or visual impairment. Other applications of this type of 
technology include providing doctors or trainees with real -time, visual guides to complicated 
operations, or pilots with new training tools.   
USG programme s  
229.  The United States Governme nt and numerous private sector and other organizations 
implement programme s that make significant economic and social contributions to society through 
IP-intensive products.  
230.  For example, recently, music exchange has been used as a cultural diplomacy tool b etween 
the U.S. and Pakistan3. The State Department brought selected Pakistani musicians to South by 
South West, a three -day music festival in the US, for showcases and IP education. The result was 
perhaps the most unique set of performances at this year 's SXSW festival. Musically, the six acts 
represented a variety of regions and styles  
231.  Moreover, the Department of Commerce participates in related trade shows and missions in 
the music and entertainment sector which highlight opportunities for U.S. exporter s in the sectors 
of digital licensing. Some examples are Book World in Prague this past May, and the Hong Kong 
Filmart this past March.  These opportunities drive future export competitiveness, and the highlight 
the importance of intellectual property prot ection.   
Private sector /non-profit initiatives  
232.  Many US non -profits, charities, and companies engage in initiatives which make social and 
economic contributions to society through distribution of copyrighted works.  
233.  The MIT Enterprise Forum Pan Arab Innov ate for Refugees Competition provides rewards for 
"innovative and tech -driven solutions for life threatening challenges faced by refugees worldwide."  
234.  Examples of innovations that have emerged from this competition include Flowy, a 
standalone solar -powered  hand-washing basis that helps provide clean hand -washing facilities that 
conserve both energy and water and NCfilter that can convert dirty to clean water using 
nanotechnology applied to locally -available waste materials.  The diverse teams that participa ted 
in the competition included Members  from Lebanon, Egypt, Jordan, and many other countries.  
235.  There are many others, including the Bill & Melinda Gates Foundation, FilmAid, Women in 
Film's PSA Production Programme , and Dramatic Need.  
236.  IP continues to drive  innovation and creativity worldwide. Governments, the private sector, 
and other organizations and individuals are undertaking important and exciting work to ensure 
that the societal benefits of IP are widely shared and applied to the people and population s that 
need them.  
11.7  Canada  
237.  Canada is pleased to co -sponsor today 's discussion on "IP Improving Lives", as part of the 
three -part theme "The Societal Value of IP in the New Economy." We would like to thank Australia 
                                                
3 https://centerstageus.org/news/billboard -behind -us-state-departments -sxsw-focused -cultural -
exchange -pakistan   IP/C/M/89/Add.1  
 
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for drafti ng the discussion paper (IP/C/W/642) as a basis for today 's agenda item. We would also 
like to thank the co -sponsors for developing the discussion under this theme, and those Members 
that have shared their experiences and insights on this issue so far.  
238.  As touched upon on in the discussion paper, emerging technologies are increasingly 
reshaping how we interact and engage with our environments, with implications for education and 
learning, labour productivity, as well as how our businesses, cities, and market s are organized. 
The scale and scope of emerging technologies – such as advances in information and 
communications technology (ICT), 3D printing, artificial intelligence (AI) learning, and automation 
– will have significant impacts on how we work, interact , live, and govern, as well as overall 
quality of life. Given the pace of technological change, increasing attention is being paid to the 
accessibility and adoption of new technologies, to ensure that they meet their potential for 
improving livelihoods for  a diverse community of users. In this regard, it is important to ensure 
that the IP system is understood and accessible in order to serve its purpose, and support the 
commercialization of innovation and creation from a wide range of groups.  
239.  With this in m ind, Canada would like to note the recent announcement of our national IP 
Strategy. Canada 's IP Strategy was launched on April 26, 2018, and contains a mix of initiatives 
aimed at  increasing  businesses ' ability  to use the IP system to  be more competitive and successful. 
These initiatives include legislative changes, IP literacy and advice, and tools to support  growth.  
Canada  would  be pleased  to present  on these  initiatives  in greater  detail at TRIPS Council meetings 
in the coming months,  including legislat ive changes under the IP Strategy, but for now, would like 
to highlight a few initiatives aimed at increasing IP education and aware -ness, as well as the 
involvement of a broad range of groups in the IP system. In particular, under Canada 's Budget 
2018, CA D$2 million will be provided to Statistics Canada over three years to conduct an IP 
awareness  and use survey  to help identify how  Canadians  understand  and use  IP, including groups 
that have traditionally been less likely to use IP, such as women and indige nous entrepreneurs. As  
well, Canada 's Budget 2018  also proposes  to invest  CAD$1  million  over five years to enable 
representatives of Canada 's Indigenous Peoples to participate in discussions at the WIPO IGC.  
240.  In addition, the Canadian Intellectual Property Office (CIPO) is developing initiatives through 
its IP Education and Awareness Programme  to ensure that businesses have a sound understanding 
of IP and can better utilize and leverage their IP assets as part  of their business  and growth  
strategies.  This includes  CIPO's IP for  Business and IP  Academy programme s, which will deliver 
seminars and webinars, IP training, and produce a suite of online information products and tools, 
as well as  guides  for those  seeking IP in  export  markets.  This also includes  CIPO's IP Hub,  which  will 
deliver and  support  a suite of networked services, including referral,  consultation  and support to 
advisory services.  
241.  Another way that Canada has sought to make the IP system more accessible for a wider 
range of groups is by way of r ecent reforms to the Copyright Act  in respect of persons with 
perceptual disabilities, under the 2016 Bill C -11 (An Act to amend the Copyright Act (access to 
copyrighted works or other subject matter for persons with perceptual disabilities ). These reforms  
included amendments  to permit the  making  of large-print books,  reduced  restrictions  on exporting  
accessible  materials, safeguards to protect the commercial market for materials in accessible 
formats, and exceptions relating to the circumvention of technological protection measures (or 
TPMs). As was noted when Canada notified these amendments to TRIPS Council (under document  
IP/N/1/CAN/17), these reforms enabled Canada to accede to the WIPO Marrakesh Treaty to 
Facilitate Access to Published Works for  Persons Who Are Blind, Visually Impaired, or Otherwise 
Print Disabled  on June 30, 2016, with the treaty subsequently coming into force on 30 September 
2016.  
242.  As these examples and initiatives articulate, a key avenue to providing that innovation and  IP 
systems  improve  livelihoods is in  ensuring that  those  that stand to  benefit from  these  systems are  
involved at  all stages of the process,  "from the ground up" so to speak. IP education and 
awareness is one such avenue for ensuring that a wider range of pre viously under -represented 
groups are involved in the IP system, with a view to facilitating more diverse innovations and 
creations that may benefit a wider range of communities. As Canada embarks on a national IP 
Strategy aimed at helping all Canadians har ness IP, we are interested in hearing the views and 
experiences of other Members, with regard to how IP and innovation systems can reach and 
involve a broader range of groups, for the benefit of all. We would again like to thank other 
Members for the discu ssion today, and look forward to engaging further on this issue.  IP/C/M/89/Add.1  
 
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11.8  Switzerland  
243.  Switzerland would like to thank the previous delegations for their gripping interventions and 
presentations. We welcome the opportunity to ex change experiences and views on how intellectual 
property has practically contributed to improving our lives – a topic which is broader than previous 
topics under the IP and innovation theme. It is not only directly relevant to all of us here in this 
building, but to all human beings.  
244.  We believe that intellectual property serves as an important engine for fostering creativity, 
innovation, and technological progress for the benefit of society. The intellectual property system 
plays a major role in providing incentives to the development of solutions to current challenges 
and enriches lives thanks to more diverse literature and art. Since the early modern era, IP rights 
have contributed to technological and cultural advancement in the most diverse fields such as 
education, environmental protection, public health, food and agriculture, arts, and entertainment. 
Certain inventions have even dramatically changed the way we live or have helped improve our 
day-to-day lives.  
245.  IP rights are an important tool. They are, however, not a panacea and need to be put into 
the wider context of the market economy and state policies. Switzerland tries to adopt a bottom -
up approach to enable innovation to flourish. This means leaving competence at the lowest 
administrative level as  long as possible. It is an established principle, for example, in the 
promotion of research and innovation: The researchers ' own initiative is regarded as being crucial, 
besides the principles of competition, qualitative assessment criteria, and internati onal 
cooperation. A free competitive environment is one of the main driving forces of innovation. In 
addition, overall favo urable and innovative -friendly conditions depend on a reliable legal 
framework, including a system of adequate and enforceable IP pro tection.  
246.  Let me illustrate, with a few case studies, how intellectual property protection, innovative 
and entrepreneurial spirit, international trade, and cooperation have contributed – and will 
contribute in the future – to finding innovative solutions a nd thereby have made, and will make, 
life easier.  
247.  The first example dates back to 1929 when financial and economic crises shook the world. 
Due to the Wall Street Crash, Brazil ended up with a large surplus of coffee beans. The Brazilian 
Coffee Institute a sked a Swiss company to find a solution for the surplus of coffee beans that were 
sitting unsold in warehouses in Brazil. After years of research, the Swiss chemist Dr Max 
Morgenthaler presented a winning formula which converted coffee beans into a soluble  coffee 
powder, while preserving the true taste and aroma of coffee. It was the world 's first instant, 
readily soluble coffee. The invention of this breakthrough beverage helped to find a way out of the 
enormous surplus of coffee beans in Brazil, while pre serving the traditional form of coffee 
production. In addition, it made coffee consumption more popular worldwide, expanding the 
international market for coffee producers. The availability of patent protection for this new method 
of producing instant coffe e served as an important incentive, since it enabled the company to 
recoup its investments in research and development. In addition, protecting the trademark of this 
innovative product contributed to making the company internationally known for its origina l food 
products and processes.  
248.  Switzerland is convinced that the promotion and protection of intellectual property is an 
important element – among others – that contributes to technological progress for the benefit of 
humanity. Creative solutions prosper if inventors are able to commercialize their inventions in a 
predictable and stable legal environment. Protection of IP also encourages investors to provide the 
necessary funding for developing new products and technologies that increase our well -being.  
249.  Intellectual property has also contributed, as is well -known, to the development of new 
innovative drugs and treatments that have helped to ensure healthy lives and promote well -being 
across the globe. IP plays a key role in providing the necessary funds to  cover the expensive 
undertaking of developing new medicines. In the last decades, significant progress has been made 
in increasing life expectancy as well as eradicating, curing, and improving the treatment of a wide 
range of diseases.   IP/C/M/89/Add.1  
 
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250.  One example of a product, the development of which was made possible by IP and an 
innovation -friendly ecosystem, is Ceftriaxone. Ceftriaxone is an antibiotic which is suitable for 
treating organisms that tend to be resistant to many other antibiotics. It is a product which  has 
made – and still is making – a great impact. In 1979, a Swiss pharmaceutical company discovered 
and filed for patent protection of Ceftriaxone worldwide. The antibiotic is used in the treatment of 
a number of bacterial infection diseases, such as seps is (i.e. blood poisoning), meningitis and 
pneumonia. It has been available as a low -cost generic by many suppliers and has featured on the 
World Health Organization (WHO) model list of essential medicines for many years. This innovative 
antibiotic has help ed to save countless human lives and continues to do so.  
251.  The development of new drugs and treatments is and will be instrumental in improving lives. 
It is also a very expensive undertaking. Few other industries are as dependent on effective patent 
and test  data protection as the innovation -driven pharmaceutical industry. They need to recoup 
their massive investments in R&D costs and be able to reinvest in new and better products. By 
doing so, they not only supply the pipeline of innovative medicines, but in  the medium term, also 
the pipeline of generics, as these innovative products may be copied by any manufacturer after 
their patent term has expired.  
252.  We would like to look at a last example of an interaction between innovative spirit and IP 
improving lives  – and that is Solar Impulse, a completely solar -powered plane. In 2016, it 
completed the first -ever round -the-world flight without a single drop of jet fuel. It was built to 
carry the message that the world needs to find new ways of improving the quality of human life, 
which includes clean technologies and renewable forms of energy production.4 This pioneering 
project was successful due to the joint efforts of individuals and many partners from the private 
and public sector, including the Swiss government.  In this project, numerous companies and 
institutions from several countries contributed with their expertise and high -tech materials. It took 
12 years of research and development to create an aircraft powered by dozens of environmental 
products and proces ses. 
253.  The technologies developed are now opening up new "markets and offering an opportunity 
for economic development, job creation and profit."5 The Swiss solar plane served as a laboratory 
and platform for clean technology. Project partners invested money  and expertise. In return, they 
benefited not only from the project 's media impact but also from IP, such as patents for 
technology developed for building the aircraft. As was explained in a related article in the WIPO 
Magazine, the Solar Impulse team ente red into a partnership with Bayer MaterialScience, which 
offered access to "innovative material solutions" that reduce energy consumption. Another partner, 
the Swiss energy company SIG, helped "optimize the energy chain and push the storage capacity 
of the  batteries to their maximum". The project partners relied on IP protection to make their 
research viable, and help them administer the rights in their innovations within their partnership 
and with external partners. The project team itself also applied for  some IP rights, despite the fact 
that the project itself was not commercially oriented.  
254.  The project fulfilled its ambition: "to contribute to the world of exploration and innovation, to 
the cause of renewable energies." It wanted "to demonstrate the impo rtance of the new 
technologies". Beyond its contribution to the cause of renewable energies and their importance for 
mankind, the technology developed for the solar impulse aircraft may be used and further 
developed for other purposes. Take the lighter -weight and more efficient batteries that were 
essential for the aircraft. They can now just as well be used in cars.  
255.  This endeavour  would not have been possible if the companies involved did not have the 
assurance that all of their investment in physical and  human capital and knowledge, and research 
and development, would be protected and rewarded, including through the protection of 
intellectual property.  
256.  In conclusion, we note that intellectual property has widely contributed to the improvement 
of lives aro und the globe. We encourage Member States to continue providing the necessary 
framework and make all IP instruments available to encourage financing and other investments in 
                                                
4 For further information, see: https://www.swissinfo.ch/eng/sci -tech/record -breaker_swiss -solar-plane -
ends-round -the-world -tour/41329902  
5 Available at: http://aroundtheworld.solarimpulse.com/ . IP/C/M/89/Add.1  
 
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innovative solutions – solutions that improve lives. The Swiss delegation is looki ng forward to 
continuing constructively engaging in this information sharing -session.  
11.9  Brazil  
257.  From the outset, allow me to thank the proponents of document IP/C/W/642 for the 
document. We appreciate opportunities for the ex change of views and experiences that enable 
mutual understanding.  
258.  The issue before us relates directly to the basic objective of intellectual property: to promote 
technological innovation in a manner conducive to social and economic welfare. The attainment  of 
such goal is a constant concern of policy makers and demands an unceasing and careful analysis 
of the designing and application of intellectual property policies. The IP toolkit of rights, if I may 
use that expression, offers many options for those int erested in generating a competitive edge to 
their services and products. Small enterprises may rely on trademarks and trade names to 
differentiate them from larger competitors; they may also use patents to attract investments to 
their industrial innovation s, even if they don 't have the capital themselves for making that 
investments. Agricultural producers are able to bring additional income and value to their regions 
when the protection afforded by a geographical indication is adequately utilized as part of  their 
commercial strategies.  
259.  On the side of the society at large, IP also generates concrete benefits. The dramatic 
improvement on life standards seen in the last century is largely attributed to new and innovative 
medicines. The technical improvements a pplied to the agricultural sector have allowed food 
production to reach levels unheard of during and after the green revolution. Trademarks and GIs, 
on their hand, make it possible to distinguish one company from another, enhancing competition 
and increasi ng the quality of products in the market.  
260.  I would like to present two examples of innovations by Brazilians which have improved lives. 
A Brazilian company developed a smartphone app called "Cataki", which connects consumers to 
companies that recycle produc ts. Consumers merely have to consult the app in order to find the 
nearest recycling company, which then may be contacted to collect the recyclable product. The 
app received a prize from UNESCO, due to its positive impact on the environment. Mario Adolfi Jr , 
from a company called Kidopi, received a prize from MIT for "Clever Care", a software that uses 
artificial intelligence in the form of a chatbot, which is used to exchange messages with patients. 
The software monitors the administration of medication, cl arifies basic questions of patients and 
alerts their doctors if something goes out of the ordinary.  
261.  Allow me to stress the efforts that Brazil has been developing to provide an environment 
conducive to innovation. We are currently undertaking studies in pa rtnership with international 
organizations to measure the concrete impact of intellectual property on our economy and on the 
access to technology in areas such as agriculture and health.  
262.  There are also ongoing initiatives to modernize the Brazilian industr ial property office. We 
have hired 210 new patent examiners in the last two years, almost duplicating the office 's capacity 
to process patent applications. Further, Brazil is engaged on creating an increasingly integrated 
and effective innovation ecosystem . In the last session of the Council, I have referred to the 
broader legal framework of the Brazilian innovation law. The government of Brazil also fosters 
innovation through financing of start -ups, and by providing, by law, that federal university 
profess ors may take temporary leave to create a start -up. Of course, IP by itself does not generate 
innovation and development and must be part of a broader innovation and industrial policy of 
countries, but its contribution cannot be reduced.  
263.  In this sense, Braz il will continue to support initiatives aimed at encouraging and rewarding 
innovation and its widespread use in the economy and society.  
11.10   Korea, Republic of   
264.  As a co -sponsor of the document IP/C/W/642 – IP and Innovation: IP improving lives", 
Korea is pleased to share with the TRIPS Council its views as well as experiences with regard to 
this agenda item. In my intervention, I would like to briefly present some  of the important IP/C/M/89/Add.1  
 
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innovations that have significantly impacted people 's lives - and then provide an overview of 
Korea 's efforts to support the development of IP in other developing countries  
265.  As is well-known , an effective IP system plays a crucial role in  enhancing our daily reality by 
incentivizing innovation and technological development. There are countless examples of 
inventions in the history of humankind that have brought significant improvements in human lives. 
To give a few examples, the telephone,  which was, as you know, invented by Alexander Graham 
Bell, has brought a revolutionary change in communication. Cars brought great advances in 
transportation. The milestone patent, for a "vehicle powered by a gas engine" was filed in 1886 by 
Benz. Benz we nt on to develop and patent other automotive components and this invention 
resulted in dramatic improvements in people 's lives; people were no longer bound to one place 
and this meant greater flexibilities in the choice of living and working places. The se miconductor is 
another key example of an invention the benefits of which were far -reaching and widely felt. In 
1958, Jack Kilby of Texas Instruments patented the first prototype integrated circuit Indeed, the 
semiconductor ushered in a revolution in techno logy. If it were not for the semiconductor, we 
wouldn 't have computers, the internet, televisions and in fact most electronic devices - and it is 
hard to even imagine a world without these.  
266.  Korea is one of few countries that have succeeded in achieving ec onomic growth in a 
relatively short period of time - and we believe that it was possible to achieve such a rapid 
economic development mainly due to intensive efforts to innovate, which have been anchored in a 
strong and effective IP system. Korea 's experie nce serves to demonstrate that there is a positive 
correlation between effective IP and innovation, growth and indeed  a better quality of life.  
267.  And yet, we do not believe that a strong IP system in itself automatically  brings about 
innovation and economic growth. Other elements such as technical capability are also crucial 
factors. As such, Korea is working with other developing countries to support efforts to innovate 
and enhance our daily lives through appropriate tec hnology (AT). The goal of appropriate 
technology is to promote a better quality of life in the developing world without condescension, 
complication or environmental damage. In AT inventions there is a special focus on the social and 
cultural impact on a pa rticular community that they are intended for. We are carrying out various 
AT development projects in countries in need of assistance mainly with a view to improving the 
quality of life for low -income households. For example, a crop dryer and solar charge controller 
was developed for Makerere University in Uganda. The drying technology in agriculture is expected 
to improve the quality of feed and contribute to the income of local farmers. A coconut oil expeller 
was developed in Sri Lanka with the aim of add ressing issues regarding the quality of coconut oil. 
Furthermore, re levant technology research cent res have been established in both countries to 
promote the sustainability of such technologies.  
268.  Korea will continue to work with WTO Members  with a view to improving lives through the 
further development of an effective IP system and promotion of technological innovation.  
11.11   South Africa  
269.  This delegation would like to thank the co -sponsors  for having introduced this interes ting and 
relevant item, we have not heard any dissent to many of the statements that have been made, 
perhaps we can start a new trend. Increasingly, harnessing technological progress is viewed by 
policymakers as a key priority to boost economic growth and improve living standards. The 
relationship between IPRs and development is indeed quite complex from a theoretical point of 
view. Any attempt to quantify the impact of IPRs needs to appreciate the variable nature of the 
legal frameworks that supports IPRs.  The context of IPRs is important: they are interwoven with 
other domestic laws and institutions governing competition policy and anti -trust, international 
trade, labour rights, privacy and many other issues.  
270.  The economic literature on the impact of IPRs is rather inconclusive. We have to ask whether 
current IPR frameworks encourage innovators to address the most pressing issues facing our 
global society and developing countries ' needs? Do they ensure access to the products of this 
innovation by those who need it most? It remains ambivalent as to whether the social benefits of 
IPRs exceed their costs, even in relation to the developed world. The basic argument in favour of 
IPRs is that they are necessary to stimulate invention and new technologies. The main  critique 
against IPRs is that they increase the cost of patented commodities which reduces welfare. This IP/C/M/89/Add.1  
 
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problem is exacerbated in developing countries because they are net importers of technology.6 
Given these embedded costs, a quantification of the cont ribution of IPR frameworks to improving 
lives through social and economic growth ought to rest on development models that enable 
developing countries to catch up and as such the optimal IPR regime for them may be different 
from that for a more advanced eco nomy. In the pharmaceutical industry, for example, 
pharmaceutical companies devote relatively little of their research budget towards diseases that 
afflict developing countries, and the incremental returns that they receive from developing 
countries are su fficiently smaller that they are unlikely to affect significantly the overall pace of 
innovation.   
271.  If it is argued that IPR frameworks lead to broader and stronger IPRs and that such systems 
may encourage more IP to be generated, or greater creativity to d evelop, such assumption must 
at the very least address the following questions: How much of the IP that is generated translates 
to more innovation, jobs, creativity, and productivity and greater societal benefits? Are IPRs 
currently calibrated to maximise innovation and inclusive growth? Some innovators avoid heavy 
reliance on IP because they are concerned that it could slow innovation down. In their view, most 
innovation is incremental and if IP rights are too strong or too widely used, IP will retard prog ress 
for subsequent inventors. This perspective originated with certain software hackers and academics 
and eventually helped to shape the development of open -software platforms like Linux, Android 
and Chrome OS.7  
272.  Furthermore, the pace of innovation in som e industries is raising doubts in the minds of 
some stakeholders about the universal suitability of IP systems for helping to solve major global 
challenges such as climate change. This was illustrated by the decision of Tesla Motors to open its 
patent port folio, which Tesla said was a result of its disappointment with the slow pace of adoption 
of electric motor technology.8 
273.  Whereas the transformational effect of new technologies cannot be denied, the diffusion and 
access to such technologies are not only de pendent on IPR frameworks. UNCTAD 's Information 
Economy Report: Digitalization, Trade and Development9 underscores the fact that affordable 
access to different ICTs is essential for people and enterprises to take active part in the evolving 
digital economy  and reap development gains from it. More than half of the world 's population 
remains offline and the broadband divide is ever wider.  
274.  Proponents advance the argument that in respect of education and training, a range of 
intellectual property rich material s foster social and economic contributions to society. A 
fundamental component of the right to education is access to high quality text books and other 
learning materials. Yet in many developing countries, access to such resources can be prohibitive 
since textbook scarcity is a serious challenge affecting the quality of education. In Cameroon, 
there is approximately one reading textbook available for every 12 grade two students and one 
mathematics text per 14  students. As more and more learning is facilitat ed through computer 
access and the internet, both students and teachers are able to log onto fast amounts of 
information. Unfortunately, access to these technologies are both inadequately and unequally 
distributed between the developed and undeveloped regi ons in the world.10 The disparities 
experienced in the physical world is often exacerbated in the online environment. Buy a book and 
you own it forever; pay for access to a digital book and when the period of service is over you 
often retain nothing.  
275.  A bet ter understanding of the enabling conditions and implications of digitalization for the 
economy and society is urgently needed in order to maximize potential benefits and opportunities, 
and cope with various challenges and costs.11 The adoption of digital t echnologies in global supply 
chains across all industries also impact on international production. In this context, we are 
beginning to see the disruptive effects of DT when firms re -shore investment as low -wage 
jurisdictions lose their cost advantages fro m increased use of robotics and artificial intelligence. 
                                                
6 Auriol et al. Intellectual Property Rights Protection in De veloping Countries p.2 (2012), Toulouse 
School of Economics . 
7 OECD Enquiries into Intellectual Property 's Economic Impact (DSTI/ICCP)  p.18 (2015).  
8 Ibid. 
9 Information Economy Report: Digitalization, Trade and Development p.17 (2017).  
10 K. Bohma "Digital  Divide Effects on Education Development in Africa." p.9 (2014).  
11 UNCTAD p.11 (2017).  IP/C/M/89/Add.1  
 
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There are concerns that the labour conditions may deteriorate in the digital economy  and 
exacerbate polarised labour markets and inequality. Employment levels in many sectors appear set 
to decline an d as the new technology augments the premium for higher skills and replaces routine 
jobs, workers will be forced to compete for fewer, lower -paying jobs. Where new employment is 
created, it is often insecure with declining levels of health, safety and unem ployment benefits.  The 
use of self -driving cars and drones may save time and money; however, the introduction of these 
technologies is not value neutral in themselves, aside from the IPR dimension, there are a myriad 
of other factors that determine their u ltimate societal impact and utility.  
276.  Over 40,131 patents originating from all over the world were registered in South Africa 
between January 2005 and July 2015.12 Only 10% of the total number of patents granted were 
South African patents, this translates t o on average less than 400 South African patents granted 
per year. The South African patent landscape is characterized by the easy grant of patents of 
dubious quality and value, as well as the enforcement of a legal frame work that appears to be 
heavily sk ewed in favour of patentees. What this means in practice is that in exchange for very 
little, market exclusivity is easily granted, and maintained, ordinarily at a high cost to society.13 
277.  Intellectual property in itself has always been an integral part of g eneral economic, social 
and cultural development worldwide. Whether IPRs are a good or bad thing, the developed world 
has come to an accommodation with them over a long period. Even if their disadvantages 
sometimes outweigh their advantages, by and large t he developed world has the national 
economic strength and established legal mechanisms to overcome the problems so caused. 
Developing countries are far from homogeneous, a fact which is self -evident but often forgotten. 
Not only do their scientific and tec hnical capacities vary, but also their social and economic 
structures, and their inequalities of income and wealth. The determinants of poverty, and therefore 
the appropriate policies to address it, will vary accordingly between countries. The same applies  to 
policies on IPRs. The impact of IP policies on poor people will also vary according to socio -
economic circumstances. What works in India, will not necessarily work in Brazil or Botswana.  
278.  We thank the proponents for the introduction of this very useful  contribution. Much of what 
is presented is based on broad generalisations and assumptions. This delegation would like to 
invite proponents to enter in to a more focused discussion on the theme of Intellectual Property 
and Innovation. More specifically, we  would like proponents to address some of the following 
issues in upcoming discussions:  
• What can we learn from the economic and empirical evidence about the impact of IP in 
developing countries? Does the historical experience of developed countries hold an y 
lessons for developing countries today? How can technology transfer to developing 
countries be facilitated?  
• How does the IP system contribute to the development of medicines that are needed by 
poor people? How does it affect the access of poor people to  medicines and their 
availability? What does this imply for IP rules and practices?  
• How does copyright protection affect developing countries ' access to knowledge, 
technologies and information that they need? Will IP or technological protection affect 
access to the Internet? How can copyright be used to support creative industries in 
developing countries?  
• How should developing countries frame their own legislation and practice on patents? 
Can developing countries frame their legislation in ways that might  avoid some of the 
problems that have occurred in developed countries?  
• Are the international and national institutions involved in IPRs as effective as they could 
be in serving the interests of developing countries?  
11.12   India  
279.  The history of evolution of IP rules in developed countries suggests that the design of IP 
rules and policies should be adaptable to the changing needs of societies. This is reflected by the 
fact that the levels of IP protection in developed countries inc reased as their industrial and 
technological capacities improved over time. While IPRs may provide an incentive to innovate, 
                                                
12 Jonathan Berger and Andrew Rens "Innovation and Intellectual Property in South Africa: The Case for 
Reform." p.15 (2018) Shuttleworth Foundation.  
13 Berger and Rens:  p.44.  IP/C/M/89/Add.1  
 
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they are neither a necessary nor a sufficient condition and could only be effective in certain 
contexts;  
280.  We have seen firms using p atents and other forms of intellectual property in anti -competitive 
ways. Firms may use patents as a strategic deterrent by building up "patent thickets," which make 
incremental or follow -on innovation by other firms a more challenging and costly process. Non-
Practicing Entities (NPEs) also have been identified by many policymakers as a costly impediment 
to innovation and economic growth.  
281.  IPRs cannot boost innovation if the required conditions – skills, information, capital, market 
prospects – do not exist . Therefore, the strength of IP rules should be calibrated to the levels of 
development in country. In countries where the required conditions to benefit from strong IP 
protection do not exist, IP protection may be more costly than beneficial.  
11.13   Norway  
282.  Norway would like to thank the proponents for the communication contained in document 
IP/C/W/642 and for including the topic on the agenda of the TRIPS Council. The societal value of 
IP is a topic of interest to Norway, and we take the floor today mainly to indicate our support of 
the discussions, which we continue to follow with interest. We see this as a good opportunity to 
have a balanced discussion related to IP in the WTO, focusing on both challenging and positive 
aspects o f Intellectual property rights.  
283.  Norway supports effective and balanced protection of IP, which we view as an important 
incentive for investments in innovation and creativity. Norway is not in a position today to share 
specific examples or experiences. How ever, we have taken note of the proponents ' questions and 
we may come back to the Council with more specific comments later this year.  
284.  We would also like thank other Members for their interesting presentations and interventions 
today.  
11.14   New Zealand  
285.  New Zealand would like to thank all Members who have presented under this agenda item. 
We have found the presentations to be thoughtful and interesting. We recognize the importance of 
this topic, and consider that the sharing  of examples, national experiences and viewpoints to be a 
useful exercise. We look forward to sharing this information with interested persons back in 
capital.  
11.15   China  
286.  In 2017 the theme of World Intellectual Property Day was innovation and how it improves 
our lives, similar to the topic we discuss today. From new materials to new transportation 
technologies, it is no doubt that Innovation has changed our lives.  
287.  While  the intellectual property system is a crucial part of a successful innovation system, it 
contributes to the protection of innovation and help s to transfer and dissemination of technology.  
288.  China attaches great importance to innovation. And i n order to  better protect innovation, 
China has built an intellectual property system based on the international rules. Under the 
protection of intellectual property, in 2017, there were 1.3 million patent applications, 5.7 million 
trademark registration application s, and 2.7 million registrations of copyrights. All three numbers 
hit a record high.  
289.  In 2017, China 's e-commerce industry led to employment of 42.5  million people. Innovation 
plays an important role in changing the Chinese people living standard and stimul ating economic 
growth.  
290.  But we still recognize the huge gap in the current innovatio n field. At present, developed 
country Members created more innovations. At the same ti me developing and LDC M embers IP/C/M/89/Add.1  
 
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created less. China believes that innovation should not only be the "toy" for developed Members, 
but also can allow more people to share the benefits of innovation.  
11.16   UNCTAD  
291.  I would like to take the opportunity to update Members on a new element of UNCTAD 's 
activities related to I P. Building on the results of UNCTAD 's capacity building and policy advice for 
developing countries related to the implementation of the TRIPS Agreement , we now consider it 
important to assist developing countries in the support of technology -based industr ies and job 
creation, in areas such as pharmaceuticals, biotechnology, information and communication 
technology, and agricultural technologies. With a view to improving living conditions in beneficiary 
countries, avoiding brain drain and large -scale migrat ion, it is essential to help developing 
countries move away from their dependence on natural resources and cheap labor. The fast -
growing percentage of young people in developing country societies and the expected impact of 
artificial intelligence and robot ics on currently existing employment in the processing industry call 
for a shift toward more knowledge -based economies. Technology plays a key role in this respect, 
and technology transfer for developing countries is crucial.  
292.  This is where our future acti vities in IP are intended to take place. In our work, we have 
seen that voluntary, contractual licenses may provide a key avenue for technology transfer in 
developing countries and may at the same time open new markets for foreign investors. Well 
negotiate d contracts can create win -win situations for both the foreign investor and the domestic 
partner in a developing country. This has been demonstrated in a series of case studies on "Local 
Production of Pharmaceuticals and Related Technology Transfer in Deve loping Countries" that 
UNCTAD published in 2011.14 In that context we found that contractual agreements between a 
foreign investor – which could be a patent holding pharmaceutical company or a generic company 
– and a local producer were important sources of  technological know -how that assisted local 
producers in meeting WHO Good Manufacturing Practic es (GMP). For example, we analys ed a case 
where a foreign investor authorized a local manufacturer to use the investor 's trademark to sell 
locally produced produ cts in the host country, in exchange for the right to benefit from the 
domestic producer 's distribution network. The licensor of the trademark agreed to provide GMP 
training to the licensee to ensure the good reputation of the trademark. We found beneficia l effects 
in terms of contractual know -how transfer in countries at very different stages of development, for 
example Argentina, Bangladesh, Colombia, Ethiopia, Indonesia, Jordan, and Uganda.  
293.  All of this being said, we have also seen in our work that the p rivate sector in many least -
developed countries and developing countries has very little capacity in understanding and 
negotiating a contractual license. This lack of capacity not only concerns IP licenses, but likewise 
contracts on research collaboration,  technology transfer, joint ventures, and other transactions 
involving technology. To our knowledge this problem has not been sufficiently addressed by the 
providers of technical cooperation.  
294.  In our view, this represents a missed opportunity for technolog y transfer and foreign 
investment that we intend to address. We wish to promote mutually beneficial contractual 
arrangements. We intend to cooperate with the Medicines Patent Pool (MPP), which in informal 
consultations confirmed the need to build capacitie s in developing countries to better understand 
patent licenses. UNCTAD could complement the work of the MPP in that respect. In addition, we 
would seek to build capacities of pharmaceutical producers based in countries that are usually 
excluded from MPP li censes, considering that some of these countries are seriously affected by 
certain diseases and at the same time provide interesting markets for foreign investors. Finally, we 
intend to go beyond the area of pharmaceuticals and will seek to build capacitie s in contracts 
related to other areas of technology that are important to help developing countries become less 
dependent on commodities, such as biotechnology, agricultural technologies, and information and 
communication technologies.  
295.  Importantly, we wil l not address contractual licenses in isolation. Foreign investors will only 
engage with local producers where the latter have acquired a certain degree of technological 
capacity. We therefore intend to advise developing country governments on the design o f 
appropriate IP and investment frameworks that are conducive to the acquisition of domestic 
technological capacity and an improved R&D framework. One example is the promotion of linkages 
                                                
14 http://unctad.org/en/PublicationsLibrary/diaepcb2011d7_en.pdf   IP/C/M/89/Add.1  
 
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between public universities and R&D institutions on the one hand and  the domestic industry on the 
other. Other examples relate to the adaptation of domestic IP frameworks to recent technological 
developments in big data solutions and artificial intelligence, and the design of incentives to more 
effectively address technolo gy solutions for antimicrobial resistance.  
296.  We would like to invite development cooperation partners to approach us for further 
discussion.  
12  LDC GROUP PROPOSAL O N THE IMPLEMENTATION  OF ARTICLE 66.2 OF THE TRIPS 
AGREEMENT  (IP/C/W/640)  
12.1  Chad, on behalf of the LDC Group  
297.  I am making this statement on behalf of the LDC Group. The LDC Group submitted 
document IP/C/W/640 with a view to facilitating discussions with developed countries on the 
manner in which imple mentation of Article 66.2 of the TRIPS Agreement  could be improved. The 
Members have preliminary talks on this submission at the February meeting of the Council. The 
statement is that the contribution with a view to having a more detailed discussion on the  above -
mentioned submission, it does not address the issue of meaning of technology transfer. Indeed 
Article  66.2 of the TRIPS Agreement  is a very important and substantive provision for LDCs and 
the Group here would like to emphasize that the links betwee n the objective for LDCs to create a 
sound and viable technological base within the meaning of the provisions of Article 66.1 of the 
TRIPS Agreement  and the provision according to which developed country Members must provide 
incentives to enterprises and i nstitutions to promote and encourage technology transfer to LDCs 
according to Article 66.2. That is why the LDC Group would like to invite developed countries to 
find appropriate ways to operationalize Article 66.2 in accordance with the letter and spirit of the 
provision. The incentives should include the establishment of an environment that will allow for 
technology transfer to be absorbed and secured, and direct measures to ensure the effective and 
voluntary realisation  of technology transfer. The conseq uence will contribute to the development of 
a sound and viable technological base and so to the strengthening of the production and export 
capacity of LDCs.  
298.  The LDC Group had several bilateral meetings with developed Member countries that 
reported under Ar ticle 66.2. Most of these consultations gave us ideas on which the Room 
Document that we are distribut ing today is based  (document RD/IP/24) . The LDC Group would like 
to emphasize that it would be useful to have an indicative list of what could help notifi cations, and 
provide clarifications to stakeholders in LDCs. The LDC Group has already distributed this list that 
is a non -exhaustive list, with some Members, partners, among developed countries. In compiling 
the list we based ourselves upon some of the el ements of developed country Members that we 
considered reflected the mandate according to which incentives should be given to enterprises and 
institutions on their territories. We added others that would help to live up to the letter and spirit 
of Article 66.2 with regard to the meaning of t he incentives. We hope that this list could form a 
basis for a for a discussion within the TRIPS Council, or for a decision in the TRIPS Council. The 
illustrative list contains the following elements:  
• The incentives to invest in enterprises that propose t echnology transfer for equipment 
and environment ally friendly methods for LDCS.  
 
• Systems that would provide coupons to enterprises and institutions on the territory of 
the developed country to acquire inputs if the project of the enterprise or institution 
includ es technology transfer to LDCs.  
 
• A fund that would be created to stimulate investment in low -carbon emission 
technologies in order to contribute to the objectives and development strategies of LDCS 
and in the context of calls for tenders of developed  countries ' governments to the benefit 
of LDCs.  
 
• A rating system could be used give additional points to the total score if the tender 
includes a technology transfer plan, including one that would, for instance, employ local 
experts in LDCs.  
 IP/C/M/89/Add.1  
 
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• Issue government technology licences prepared in the context of research and 
development projects financed by government funds to support technology and 
innovation in LDCs.  
 
• Tax exemptions for enterprises of the developed country territory if the technology is 
transferred to LDCs.  
 
• Technology transfer or right to transfer to LDCs when the project financed by the 
government of the developed country generates technologies during the implementation 
of a project in a LDC.  
 
• Subsidies for risk insurance provided to pr ojects based on technology in LDC s. 
 
• Development of industrial cooperation programmes between the enterprises of 
developed countries and LDCs in order to strengthen the technological absorption 
capacities and technology transfer capacity and knowledge and know -how necessary for 
industrialisation, economic diversification and structural transformation of LDCs.  
299.  The LDC Group looks forward to construct ive discussions wi thin the TRIPS Council with a 
view to making a decision based on the proposal of the LDC Gr oup. 
12.2  Bangladesh  
300.  My delegation fully associates itself with the statement made by Chad on behalf of the LDC 
Group. Listening to the intervention and presentation made by the proponent under the Agenda 
item 11 we are thinking that if the LDCs had such technological base, we could have prospered like 
others. But unfortunately, that is not the case, and we  aspire  to have this, with the support of our 
development partners. Implementation of Article 66.2 in the letter and spirit wi ll help us to reach 
that stage.  
301.  We follow  the technical assistance  project s and programme s for creating viable technology 
bases in LDCs and other developing countries as reported in the submission s made by developed 
country Members under the annual review . We believe that if these activities are supported by the 
measures as recorded by Article 66.2 , it will help us to gradually develop a viable technological 
base.  
302.  In this context, we request the Council to examine the list and come up with a decision. We 
are ready to engage in any format to help to have an outcome on the implementation of 
Article  66.2 in an effective way.  
12.3  United States of America  
303.  The United States appreciates the interest expressed by the LDC Me mbers in the Article 66.2 
reports.  The United States is proud of the work that US agencies have conducted over the years 
for promoting and encouraging technologic transfer to LDCs in order to enable the creation of a 
sound and viable technological base.  
304.  Many of the programme s that the United States funds seek to help improve the commercial, 
legal, and regulatory environments to attract foreign investment and promote private sector -led 
growth and voluntary technology transfer on mutually agreed terms. By est ablishing commercial 
environments that attract and stimulate the creation of technologies that address local needs and 
development goals, LDCs become more attractive to innovative foreign enterprises and institutions 
looking to undertake voluntary technolo gy transfer on mutually agreed terms, while also creating 
conditions to stimulate the creation of new technologies.   
305.  It is important to the United States that the programme s are as successful as possible, and 
the United States would be interested in learn ing from the LDCs that have participated in these 
programme s to see what policies may have been enacted as a result of the programme s, 
particularly at the stage of technology absorption.  IP/C/M/89/Add.1  
 
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306.  With respect to an indicative list, such as the one included in the r oom document, we are 
concerned about limiting the breadth of the wide range of programme s we already support.  
12.4  India  
307.  The Preamble of the TRIPS Agreement  reflects a particular balance  of rights and obligation 
and it clearly recognizes the underlying public policy objectives, including developmental and 
technological o bjectives. Article 66.2 of the A greement is specific and it clearly entails developed 
country Members  to provide incenti ves to enterprises and institutions in their territories for the 
purpose of promoting and encouraging t echnology transfer to least developed country Members. 
The Doha Declaration on TRIPS and Public Health reaffirmed the commitment of developed country 
Members to provide incentives to their enterprises and institutions to promote and encourage 
technology tr ansfer to least developed country Members. We welcome deliberations here on 
effective and meaningful implementation, in letter and spirit of this importa nt provision.  
12.5  Norway  
308.  We wish to thank the LDC Group for their proposal and willingness to engage in an open and 
frank discussion, both in bilateral and small group meetings and through their intervention in the 
Council today.  
309.  Norway appreciates the valuable clarifications that the LDC group has provided. We are 
working on improving our own reporti ng, and intend to take the LDC G roup's comments and 
concerns into consideration when preparing our 2018 report, due later in the year.  
310.  We look forward to further cooperati on and discussion with the LDC Group and other 
Members in order to make reports on the implementatio n of Article 66.2 of the TRIPS Agreement  
as effective and transparent as possible.  
12.6  New Zealand  
311.  New Zealand would also like to thank the LDC Group for its proposal, and for the guidance 
list that it has shared, and we look forward to taking the opportunity to consider these documents 
further.  
12.7  European Union  
312.  The EU takes note of the document RD/IP/24 submitted by the LDC Group. The EU and its 
Member States take their commitments and obligations under Article 66.2 of the TRIPS Agreement  
very seriously, trying to make the annual submissions on technology trans fer more transparent 
and comprehensive. Reporting on ongoing  and future technology transfer projects every year, in 
which LDCs are among the beneficiaries, helps interested parties to be aware and benefit from 
these projects. It is still crucial though tha t the annual reports are also circulated by the LDCs in 
their country to make sure that it really reaches all the interested institutions and stakeholders.  
313.  The EU and its Member States gave proof to promptly reacting to natural, social, health, 
climate an d economic changes by putting in place projects specifically tailored to the current needs 
of LDCs and their regional organizations.  
314.  In the annual reports it is clear that the EU actions often target groups of countries or 
regions. The reason is because t he EU strongly supports regional integration, which fosters better 
understanding and political and economic links between neighbouring countries. Even more 
importantly, many of the problems these projects try to address do not stop at borders. That is 
why many technology transfer programmes of the EU and Member States target regions including 
both LDCs and also other developing countries. We find it counter -productive to exclude the 
reporting of these joint projects, as the LDC Group seems suggesting.    
315.  Many of the EU 's technology transfer projects have an obvious regional footprint. Projects 
that aim at introducing an Integrated Aquaculture based on sustainable water recirculation and 
sanitary system for the Victoria Lake Basin, for instance, are equally i mportant for LDCs and 
developing countries around the Victoria Lake.  IP/C/M/89/Add.1  
 
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316.  It is crucial to have a common understanding what technology transfer means and includes. 
If we apply the well -researched definition used by the OECD in its most recent study on 
internat ional technology transfer, we can say that technology transfer refers to the ways and 
means through which companies, individuals and organizations acquire technology or know -how 
from third parties, whether such technology is IPR -protected or not.  
317.  Technolo gy transfer is often one component of a more complex matter, rather than a stand -
alone activity. The acquisition by LDCs of a sound and viable technological base does indeed not 
depend solely on the provision of technology or equipment, but also on acquisi tion of know -how, 
management and production skills, improved access to knowledge sources as well as on 
adaptation to local economic conditions.  
318.   Therefore, training and education of university graduates, exchanges of qualified staff, and 
joint research pro jects must accompany the buying or licensing of IP rights related to the 
transferred technology. We know that the mere transfer of technology without the training of local 
employees does not enable the recipients to achieve the internalization of the provi ded technology 
and to reduce the technology gap with developed countries. Several projects put in place by the 
European Union and its Member States are accordingly aimed at providing such training and 
education.  
319.  As the OECD rightly pointed out in its recen t study on technology transfer, one of the most 
important pre -conditions of technology transfer is the improvement of the absorption capacity of 
LDCs. Absorptive capacity can be defined as availability of human capital and presence of 
technological capabil ity and other factors, such as good governance, access to finance and 
infrastructure, which helps assimilate and replicate knowledge gained from external sources. 
Absorptive capacity is key for diffusion of any knowledge, originating domestically or abroad , and 
thus for determining how technology can contribute to economic transformation and "catching -up" 
of a country. Together with IP protection, it can also influence technology holders ' incentives to 
promote transfer and diffusion of knowledge. Policies a imed at improving absorptive capacity can 
help to remove some of the key bottlenecks to technology transfer, particularly in least developed 
countries.  
320.  Aimed at increasing the ability to absorb, internalise and utilise new knowledge, absorptive 
capacity po licies encompass a wide range of measures addressing workforce, organisational and 
adjustment deficiencies. Increasing the pool of trained workforce able to understand and 
assimilate technology, improving the quality of higher educational institutions and scientific 
infrastructure as well as of networks between these educational and research institutions and 
enterprises, and better access to finance and efficient institutions, can all have significant impact 
on technology absorption, and thus stimulate tech nology transfer.  
321.  The EU questions the need for any indicative list of what would constitute an incentive to 
enterprises and institutions to transfer their technologies. Governments have to remain free to 
decide how to incentivise their enterprises to tran sfer technology to LDCs and other developing 
countries to find the most effective means. The current model, which, among others, is based on 
direct financial support, results in hundreds of technology transfer projects year after year, which 
show that the incentives system of the EU and its Member States work well.  
322.  The EU would rather suggest the TRIPS Council to focus on suitable policies, such as 
absorptive capacity improving policies or appropriate intellectual property rights protection 
measures that c an create the environment for companies and other stakeholders to voluntarily 
apply and transfer their technology generating inward investment and technology transfer to LDCs.   
12.8  Canada  
323.  Canada would like to thank the LDC Group fo r its proposal on the implementation of 
Article  66.2 of the TRIPS Agreement , document IP/C/W/640 and room document RD/IP/24 which 
Canada will study carefully, and for the insightful discussion on the issue of technology transfer. 
Canada is always intereste d in hearing the views of LDCs in respect of their interests and priority 
needs in respect of technology transfer, particularly with a view to informing our own development 
priorities and the incentives that are provided  to enterprises  and institutions  for the purposes  of IP/C/M/89/Add.1  
 
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promoting technology  transfer  to LDCs in order to enable them to create a sound a viable 
technological base, pursuant to Article 66.2 TRIPS.  
324.  On this note, Canada would like to highlight the valuable exchanges that take place during 
the annual WTO workshop on the implementation of Article 66.2 TRIPS , which provides a useful 
opportunity for LDCs and developed country Members to exchange experienc es and priorities in 
this area. Canada views the annual workshop not only as an opportunity to present on developed 
countries ' annual  reports  on the implementation  of Article  66.2, but  also to arrive  at a clearer  under -
standing of  LDCs' specific  technology  transfer  priorities  and sectors  of interest, as well as notable 
projects and best practices in this area.  
325.  Further to the LDC Group proposal to deliberate on the meaning  of "incentives  to enterprises  
and institutions", the  annual  workshop  could  provide  a venue to draw commonalities and best 
practices from developed countries ' annual reports, with a view to  better  informing  Members  of how  
future  incentives  and projects  in the area of technology  transfer might best respond to LDCs ' 
evolving priorities and needs. As the annual workshop will be held on the margins of the next 
TRIPS Council meeting in November 2018, it would serve as a useful opportunity for further 
practical and evidence -based  discussion  on these issues.  Canada is  open to discussion with any 
interested Members on how the workshop can be enhanced in this regard.  
326.  Canada also takes note of the interest expressed in the LDC proposal to interpret the 
meaning of "incentives" under Article 66.2, such as with regard to conditi ons for contracts 
tendered by governments. Canada would like to reiterate that governments may be limited in the 
extent to which technology transfer can be required on a contractual basis, and that Canada 's 
longstanding position  has been to encourage  techn ology  transfer  on voluntary  and mutually -agreed 
terms. Nonetheless, and without prejudice to Canada 's position on this issue, Canada would be 
interested in  further information  from LDCs on this proposal, including specific examples of how 
contractual requi rements have been used to facilitate technology transfer, as well as any best 
practices in this area.  
327.  At the same time, while noting the interest in deliberating on the meaning of "incentives", it 
is also important not to lose sight of the outputs of tech nology transfer, specifically in how specific 
initiatives meet LDCs ' needs and priorities.  In addition  to the specific  incentives provided, we are 
also interested in getting a clearer indication of LDCs ' priority sectors and technologies, in order to 
ensur e that these priorities are integrated into the types of incentives, projects, and initiatives that 
Canada supports in promoting international development.  
328.  Canada also takes note of the LDC proposal that developed countries ' Article 66.2 reports 
"only spec ify incentives provided to least developed countries for technology transfer". Canada is 
always open to suggestions from LDCs on how to make our annual report more targeted and clear, 
while also ensuring that the report provides a comprehensive overview of  the range of incentives 
provided on this issue. We note, for instance, that Canada 's annual report follows the format 
proposed by LDCs in the context of the 2011 document IP/C/W/561, and remain open to further 
discussion on the reporting format in view of  providing the most useful and informative 
information, pursuant to Article 66.2.  
329.  Canada  would  once again  like to thank  the LDC Group  for its proposal, and  for the views shared 
on this issue. We remain open to discussing with any interested Members following  this meeting of 
the TRIPS Council, including in view of the upcoming workshop on this issue in the fall in the 
margins of the next TRIPS Council meeting.  
12.9  Australia  
330.  We thank the LDC Group for its proposal and its rec ent room document with an illustrative 
list of incentives. We will consider further the informal document on incentives, we note that 
Australia takes its obligations under Article 66.2 very seriously. With respect to the point raised in 
the proposal in par agraph 3, we think only including in our Article 66.2 report incentives which 
relate to technology transfer exclusively to LDCs would not be an accurate picture of Australia 's 
implementation of Article 66.2. For example, we provide incentives for technolog y transfer to the 
ASEAN region, which includes both developing countries and LDCS.  IP/C/M/89/Add.1  
 
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331.  From our perspective, even if the incentive also led to technology transfer to developing 
countries, it would still be relevant to co -recipient LDCS under Article 66.2. We continue to see 
forums, like the Article 66.2 workshop as the kind of forum more suited to questions regarding 
approaches to reporting on Article 66.2.  
12.10   Switzerland  
332.  We would like to thank again Cambodia  and the LDC G roup for  its communication in 
IP/C/W/640, circulated prior to the first Council this year. We take note of the background 
information and the proposal for the TRIPS Council to deliberate and make some decision in favour 
of LDCs. We also had a first look at the pap er with some ideas about incentives and will need to 
study this in more detail.  
333.  Switzerland acknowledges that the implementation of Art icle 66.2 of the TRIPS Agreement  
poses a number of challenges. Over past years, this has also lead us to re -analyse our 
commitments under the said article and our yearly reporting following the TRIPS Council decisions 
in 2001 and 2003.  
334.  The issues raised in the LDC G roup's paper are not new, and some of them have been 
discussed before, also on the occasion of the yearly works hops organised by the Secretariat  the 
day before the third TRIPS Council every year. The discussions held in the workshop for mat 
between LDCs and developed country Member s, including the Q&A exercise, resulted in a number 
of modifications and improvements of developed countries ' reports under Article 66.2 over the 
years.  
335.  Responding to the proposals made in document IP/C/W/640, Switzerland does not think that 
it would be useful, or possible, to restrict the measures and the reporting to incentives for 
technology transfers which are exclusively directed at least developed countries. There are a 
number of significant governm ental incentives and programmes for enterprises and institutions 
which are for the benefit of a group of countries or a whole region, which may cover both least 
developed countries as well as middle -income countries.  
336.  We do not think that such incentives an d programmes should be left out of the reporting. 
This is probably a particular concern of smaller countries like Switzerland which do not have the 
capacity to engage in each and every LDC and middle -income country. For example, a number of 
technical assis tance programmes are organised as global programmes. Tracking of funds to 
individual countries can be difficult in those cases.  
337.  It does not seem appropriate to exclude all such incentives or programmes solely because 
they are directed at enabling technolog y transfer to both specific LDCs and middle -income 
countries. They need to be taken into account also and should be duly reflected in the reports.  
338.  We agree with the LDC G roup that the reports should whenever possible specify the LDCs 
targeted by incentive s and programmes, i.e. specify the beneficiaries of technology transfers 
enabled by specific incentives.  
339.  As for the LDC Group 's request to deliberate on the meaning of "incentives to enterprises 
and institutions", set out in document IP/C/W/640, we also h ave some reservation. Switzerland 
believes that the intention of the Member states when drafting Art icle 66.2 of the  TRIPS 
Agreement  was to keep the mandate rather broad and not to exclude specific incentives or entities 
from the mandate.  
340.  We are looking fo rward to continuing this dialogue also in the workshop prior to the next 
Council. There, specific concerns relating to incentives can be further discussed.  
12.11   Japan  
341.  While not necessary to mention, the delegation of Japan recognizes the importance of 
Article  66.2 of the TRIPS Agreement  for LDCs, taking into account their economic, financial and 
admini strative constraints.  IP/C/M/89/Add.1  
 
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342.  This delegation understands that incentives to achieve technology transfer include a variety 
of measures including  such as financial support and business infrastructure arrangement and so 
on, because one of the major obstacles for enterprises and institutions to transfer technologies to 
LDCs, is lack or insufficiency of sound or comprehensive business environment in L DCs.  
343.  In particular, a lack or insufficiency of IP systems hinders enterprises and institutions from 
transferring their technologies to LDCs. Therefore, supporting the business environment of LDCs 
by strengthening the protection of IP is one of the effecti ve ways to advance technology transfer 
by enterprises and institutions.  
344.  In this context, this delegation believes that activities noted in the Japanese Article  66.2 
report contribute to creating a sound and viable technological base in LDCs, which will al so 
encourage and bring further technology transfers by enterprises and institutions.  
345.  This delegation thanks the LDC G roup for preparing  the room document with ideas of 
incentives. We need to have time to consider it carefully. Nevertheless, at this moment, we have a 
general concern that the list might rather limit the implementation o f Article 66.2.  
346.  Japan will continue to make its utmost efforts to improve business environment s in LDCs so 
that they can become even more conducive to transferring technology. This delegation  looks 
forward to meaningful discussions in this Council or the annual workshop designated to the 
discussion of Article 66.2, as opportunities for working further with LDC Members in this context.  
12.12   Brazil  
347.  Article 66.2 is part of the delicate balance of rights and obligations reached by the TRIPS 
Agreement . One of the expected benefits to LDCs of b ecoming Party to the Agreement is precisely 
this clause. We thus recognize the importance of this discussion, which benefits from the insightful 
views expressed here today.  
348.  Brazil takes note o f the Room Document , which will be conveyed to our capital for f urther 
analysis. We hope to come back with comments at the next session.  
349.  In the meantime, we urge delegations to continue their consultations in order to address the 
issue in the best possible way.  
12.13   Nepal  
350.  I join the statement s delivered by Bangladesh and Chad on behalf of the LDC Group. My 
delegation wishes to thank the develop ed country M embers who have provided technical and 
financial supports to the LDCs in the areas of capacity development, trade and economic 
development.  
351.  Article 66.2 of the TRIPS Agreement  clearly states that developed country Members shall 
provide incentives to enterprises and institutions in their territories for the purpose of promoting 
and encouraging technology transfer  to least developed country Members in order to enable them 
to create a sound and viable technological base. The provision is obligatory. It is very clearly 
written and does not bear ambiguous meaning. The three words "shall", "incentives to enterprises " 
and "LDCs" are very important.   
352.  Similarly, the Doha Declaration on TRIPS and Public Health reaffirmed the commitment of 
developed country Members to provide incentives to their enterprises and institutions to promote 
and encourage technology transfer to LDC M embers.  
353.  Since 1995, LDC M embers have been continuously raising the concerns about an  ineffective 
implementation of Article 66.2 of the TRIPS Agreement  and are requesting for its effective 
implementation in letter and spirit. The notifica tions and reports of developed country Membe rs do 
not provide specific information on the incentives provided to the ir enterprises and institutions to 
transfer technology to LDCs.  IP/C/M/89/Add.1  
 
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354.  It is very important to note that Articles 66.1, 66.2 and 67 are linked to each other. If we do 
not implement Article 6 6.2 effectively and meaningfully in letter and spirit, the enhanced transition 
period under Article 66.1 does not yield any outcome. Similarly, Article s 66.2 and 67 have a 
complementary relationship . The support provided under Article 67 including training , could create 
the foundation and enabling environment  for technology transfer to  LDCs as they lack necessary 
capacity to transfer technology. In this context, effective implementation of Article 66.2 is 
fundamental.  
355.  LDCs, the most vul nerable segment of t his august h ouse, are the least integrated into the 
MTS. Sustainable development depends on mutually reinforcing actions across the social, 
economic and environmental dimensions of development. The technology transfer could play a 
significant role in achie ving SDGs which are our shared commitments.  Without rapidly building up 
capacities in Science, Technology and Innovation (STI), the goals of eradicating widespread 
poverty, removing structural constraints and unleashing sustained growth and achieving 
susta inable development in LDCs could not be achieved.  
356.  Finally, once again my delegation acknowledges the efforts and support provided by 
developed country Members so far. For the better outcome, the continuous dialogue, 
brainstorming and experience sharing bet ween the LDC and developed country Members could 
provide specific and better ideas. Such discussions and experience sharing could be supportive in 
developing a framework or mechanism in technology transfer. Incentives to enterprise or 
institutions to trans fer technology could be tax exemptions, felicitation and recognition to the 
enterprises and so on. We request developed country Members to consider the LDC proposal on 
the implementation of Article 66.2 of the TRIPS (IP/C/W/640) and to provide specific rep orting.  
12.14   Bangladesh  
357.  Thank you to all Members who have intervened on this matter. The implementation of Article 
66.2 has been under discussion for the last twenty years  and progress  was made regarding the  
implementation of Ar ticle 66.2 . Every year we have th e annual review, we pose two questions: 
please inform us about  the incentives you are providing to enterprise s and institution s. We then 
find out whether these are LDC -specific or not . Every time , we are asked to submit written 
questions , and we are used to getting these answered in the next annual review, and we have 
seen that the answers are similar. That is why we have come with our proposal, to better 
understand what do we mean by the incentive to the enterprise s and institution s in the territories 
of developed countries , that is, to the spirit and the letter of Article 66.2.  
358.  As we mentioned earlier , all th ese technological project s and programme s report ed under 
the Article 66.2 Annual Review are very useful to create a viable technological base  - we are not 
trying to limit the su bmission - but we want to actually focus on Article 66.2 . Our understanding is 
that several elements are present in technical innovation, that is scientific knowledge, physical 
object s, product ion know -how, training , etc. We understand that there are several means by which 
we can tran sfer technology and you are focusing on these technical assistance projects which are 
very important, but Article 66.2 specifies one type of means, that is the ince ntive to the institution 
or enterprise in your territory, so that is what we want to address.  
359.  I understand that whatever the legal interpretation, it is said that this incentive should be 
specific to LDCs and that is why we have made this proposal in paragraph 3 . The drafter of the 
TRIPS Agreement in the Uruguay Round promoted this Article in such a way that it should be 
directed towards LDCs and it should be the incentive to the enterprise and institution in develop 
country territor ies, that is the wa y it was drafted. From our understanding we thought that that 
should be reported, but we never ignored th at technical assistance projects which have been 
chosen do impact on creating a technological base in our countries. We don 't want to limit that 
one, but wish to focus on incentives. W e have tried our best to identify from the reports which 
projects could constitute incentive s to the enterprise. Every report is long, as the Secretariat has 
already mentioned, it has already become 5,000 pages of annual r eports. We tried to identify 
which could constitute the incentive within the meaning of Article 66.2 . If you look at our proposal, 
we have tried to bring some elements from those reports which we thought are incentives, that is 
what Article  66.2 is looking for. That is why we thought it could be useful to discuss here the 
illustrative list . We don 't want to restrict the list with these elements, but it is our thought that 
through discussion we can actually modify that one or this one . We put our thoughts in our room 
document, and we want to discuss that one  and how develop countries  want to implement it. We IP/C/M/89/Add.1  
 
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have an illustrative list which could support implementation and that is why actually we wanted to 
have a useful discussion to have an idea which we could  consider that would be in line with Article 
66.2.  
360.  What we can request to the Members is that they let us have a discussion on the list and 
how we could actually implement Article 66.2 in letter and spirit. But again I want to emphasize 
that we always all ow the technical assistance project s, all these projects which are directed 
towards c reating  a viable technological  base in our country. But let me say something about Article 
66.1 and Article  66.2, their linkage . Article 66.1 says that LDC s should have a different period, 
until they develop their viable technological base . Article 66.2 then says that we need to do 
something so that LDCs can create a viable technological base, so this is the link. It is important 
that we create a viable techn ological base through the implementation of Article 66.2 and other 
technical assistance projects you referred to in your reports of the Annual review of Article 66.2.  
12.15   Chad, on behalf of the LDC Group  
361.  I would also like to support what Bangladesh has just stated and clarified. On behalf of the 
Coordinator of the LDC Group I would like to thank Members for their support, and we can clearly 
see the importance of Article 66.2 of the TRIPS Agreement  for LDCs a s Members have all recalled, 
the significant challenges and restrictions that LDCs face. I think the effective implementation of 
this Article could help us to reduce these obstacles for LDCs. The Group of LDCs really does take 
note of the questions and obs ervations raised by the Members, Canada, Australia, the European 
Union, United States, Switzerland and other Members. We will come back as soon as we possibly 
can to provide even further clarifications with regard to t he concerns expressed. T he group of LD Cs 
remains always open, flexible and constructive in its approach.  
13  INTELLECTUAL PROPERT Y AND THE PUBLIC INT EREST: PROMOTING PUB LIC HEALTH 
THROUGH COMPETITION LAW AND POLICY  
13.1  South Africa  
362.  On behalf of the co -sponso rs in respect of IP/C/W/643 and Add.1, w e are h onoured once 
again to introduce this very important ad hoc  topic, which we have been able to sustain over the 
last few TRIPS Council meetings. Today 's discussion focuses on Intellectual Property and the Public  
Interest: Promoting Public Health Through Competition Law and Policy. Members will recall that 
when we first addressed the issue, we had done so through the introduction of the High -Level 
Panel Report on Access to Medicines which investigated the relation ship between intellectual 
property, access to health technologies, incentives for research and development and the 
opportunities to the strengthen governance accountability and transparency. In the process, we 
have looked at various flexibilities that are imbedded in the TRIPS Agreement , I will not  go 
through all of it, the paper was circulated to Members (documents IP/C/W/643 and 
IP/C/W/643/Add.1) but I want to concentrate for a few minutes on the purpose of today 's 
discussion, and that is competition law.   
363.  Competition law is one of the least -discussed flexibilities within the WTO TRIPS Agreement . 
The fundamental objective of competition law is to protect the integrity of competitive markets 
against abusive conduct and to protect consumers from the effects of such conduct. Even though 
TRIPS sets minimum norms for standards of IP protection that significantly limit Members ' 
discretion on a large number of IP rights issues, it is not the case with competition law. Members 
are free to design competition laws in  a way so as to take account of their domestic interest and 
needs, including their respective levels of development, subject only to the natural limits defined 
by the territorial limitations of such laws.  
364.  Various other provisions of the TRIPS Agreement  are relevant to competition law including 
Article 6, Article 31(k) and Article 40. As such, these provisions leave broad discretion to Members 
in how they apply competition law in respect of the acquisition and exercise of IP rights. Article 6 
of the TRIPS Ag reement  authorizes Members to allow parallel importation of health technologies, a 
major pro -competitive form of activity that can be used to secure the lowest priced products 
available on international markets. Article 31(k) of the TRIPS Agreement  confirm s the right of 
Members to use such licences as anti -competitive remedies. The only condition required by IP/C/M/89/Add.1  
 
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Article  31(k) for the grant of this type of compulsory licence is that anti -competitive practice needs 
to have been determined through a judicial or ad ministrative process.  
365.  The possible use of compulsory licences to deal with anti -competitive practices as explicitly 
recognize d in Article 31(k) of the TRIPS Agreement  is of particular importance  to protect public 
health in cases, for instance, of excessive pricing of health technologies or refusal to grant licences 
on reasonable commercial terms. The sponsors of this communication urge Members to share their 
national experiences and examples of h ow competition law is used to achieve public health and 
related national objectives.  
366.  The debate and information exchange could serve to enhance understanding of Members ' 
various approaches to the use of competition law and policy to prevent or deter pract ices such as 
collusive pricing or the use of abusive clauses in licensing agreements that unreasonably restrict 
access to new technology, prevent the entry of generic companies and may result in higher prices 
for medicines. The issue of abuse of IP rights remain s relevant in the context of the application of 
national and regional law regimes. We have framed the debate by po sing certain questions, such 
as: what grounds are available in national laws to pursue competition law and policy to achieve 
our public health outcomes ; what are the difficulties faced by WTO Members when using 
competition policy to preve nt or deter abusive practices ; whether unreasonably high royalties may 
deter the transfer of technology ; what policies of Members established to deal with  the technology 
pricing and other aspects of transfer of technology transactions ; and whether or not compulsory 
licences have been used by competition authorities in some countries to restore competition in 
cases involving the exercise of IP rights.  
13.2  South  Africa   
367.  I will continue in my capacity as the representative of South Africa, and share some 
experiences from the viewpoint of South Africa.  
368.  South Africa has a proud history of robustly engaging with issues th at concern the 
intersection between IPRs and public health. Indeed, the South African government 's stance in the 
case between the Pharmaceutical Manufacturers Association versus the President of South Africa 
(the late President Nelson Mandela) in 1998, was  a key factor leading to global dialogue around 
the potential negative impacts of intellectual property rights on public health, culminating in the 
Doha Declaration on TRIPS and Public Health.   
369.  South African law reflects the principles embodied in the TRIPS Agreement  and the Doha 
Declaration in particular with regards to the measures that Members may implement in domestic  
legislation to protect the public against the abuse of patent rights and monopolies. However, the 
practical implementation of the provisi ons that give effect to the TRIPS Agreement , have not been 
effective in protecting the public against patent monopolies and ensuring that the public has 
access to essential medicines, at affordable prices.  
370.  Competition policy in South Africa, as reflected in the preamble to the Competition Act 89 of 
1998 (Competition Act) seeks to address, amongst other things, inadequate restraints against 
anticompetitive trade practices and unjust restrictions on full and free participation in the economy 
by all South Afr icans. It thus aims to open up the economy to greater ownership by a larger 
number of South Africans in order to attain an efficient, competitive, economic environment, one 
that balances the interests of workers, owners and consumers, and focuses on the de velopment of 
all South Africans. This is accomplished by preventing cartels aimed at price -fixing, limiting output 
or otherwise restricting competition, by preventing firms from gaining market power in unjustified 
ways, including through anticompetitive me rgers, thus raising barriers to market entry by new 
firms. Competition policy is also concerned with preventing firms with market power from abusing 
their dominant positions, including by charging excessive prices to the detriment of consumers. 
The role of  competition authorities is therefore to ensure markets function efficiently and to the 
benefit of both consumers and producers.  
371.  South Africa has a well -developed competition regime based on best international practice. 
Even though our economic system is mainly based on free market principles, compet ition is 
regulated by statutory -created competition authorities, namely the Competition Commission, the 
Competition Tribunal and the Competition Appeal Court. The Competition Act became effective on IP/C/M/89/Add.1  
 
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1 September  1999. It fundamentally transformed South Africa 's competition legislation and 
substantially strengthened the powers of the competition authorities. Unlike some foreign 
jurisdictions, South African competition law focuses not only on pure competition law m atters, but 
also addresses  pertinent public interest and social objectives.  
372.  Both competition law and patent law together can be used to implement competition -related 
TRIPS flexibilities and advance consumer welfare. Chapter 2 of the Competition Act covers  
practices such as horizontal restrictions, vertical restrictions, and abuse of dominance, and various 
licensing provisions in the Patents Act. Horizontal agreements such as price fixing, market division 
and collusive tendering are prohibited per se , without requiring a showing of actual harmful effect 
or permitting a showing of net efficiency.  
373.  The Competition Act also prohibits price discrimination: in relation to prices broadly, 
discounts, rebates, allowances, credits, services, or payment terms, for products or services. 
Again, market power is a prerequisite – only a dominant firm acting as a seller can be liable. 
Liability is subject in all cases to a competitive effects test: is the discrimination likely to have the 
effect of substantially preve nting or lessening competition?  
374.  In line with the general approach to South African competition law and policy, it is accepted 
that certain anti -competitive conduct may be required to achieve broader industrial and macro -
economic goals  which is set out in Section 10(3)(b) of the Competition Act.  The Competition Act 
therefore provides a mechanism whereby a party or parties can apply for an exemption from 
prosecution in certain cases. What is inferred from section 10(4) is that the legislator intended for 
the current Competition Act to extend to the exercise of intellectual property rights and that an 
exemption is required for certain intellectual property rights in order to achieve these bro ad 
industrial goals.  
375.  The South African Competition Commission has no t issued specific guidelines on the 
application of the Competition Act to IP. However, it has explained its general approach in that 
firms are not automatically exempted from the rules of the Competition Act as a result of the 
rights granted in terms of la ws like the intellectual property laws. This means that firms cannot be 
allowed to automatically continue with a particular prohibited practice as outlined in the 
Competition Act because that practice is allowed by another Act. It has taken the view that 
conflicts between intellectual property rights and competition mandates should be resolved 
according to the extent to which the "long -term pro -competitive benefits" of a practice outweigh 
its "short -term 'anti-competitive ' effects." The Competition Commissi on has thus analysed this 
conflict by considering the following factors:  
a. Competition law should recognize  the basic rights granted under intellectual property 
law. The creation and maintenance of innovation markets are necessary for economic 
progress and d evelopment.  
b. Intellectual property does not necessarily create market power.  
c. A practice involving intellectual property should not be prohibited if the practice leads to 
a less anti -competitive situation than without the said practice.  
d. The long -term pro -competitive benefits should outweigh the short -term 'anti-
competitive ' effects of intellectual property rights.  
376.  I leave it at this and would invite other proponents to share their perspectives , as well as , 
other Members of this house.  
13.3  Brazil  
377.  I would like first to thank China, India and South Africa for co -sponsoring document 
IP/C/W/643. The communication builds on document IP/C/W/630, with the goal of expanding the 
discussions on the complex interplay bet ween intellectual property and public interest. The debate 
of the relation between intellectual property and competition lies at the heart of the IP system and 
is certainly of interest to this Council.  IP/C/M/89/Add.1  
 
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378.  In economic terms, the temporary exclusivity on the m arket granted by a patent is expected 
to generate long -term dynamic pro -competitive innovation at the cost of short -term 
anti-competitive effects. Considering this theoretical background, policymakers strive to design an 
efficient and balanced patent syste m, avoiding a situation in which patents or other intellectual 
property rights lead to inefficiencies, high prices or the under -provision of goods.  
379.  The Brazilian Constitution establishes an explicit foundation for competition policy. 
Article  170 states tha t the "economic order" of Brazil shall operate with "due regard" for certain 
principles, including "free competition," "the social role of property," "consumer protection," and 
"private property."  
380.  One way to pursue competition law and to achieve health out comes is to prevent illicit 
conducts such as cartels and illegal unilateral conducts. Another way is to prevent the for mation of 
undue mergers in the pharmaceutical sector . 
381.  Our competition authority is CADE, the Administrative Council for Economic Defenc e. It has 
recently concluded an investigation of a cartel in the segment of implantable cardiac pacemakers. 
The companies involved were being accused of facilitating and promoting the adoption of 
anticompetitive practices, including through price collusion. Due to the violation of the economic 
order, fines totalling  approximately R$ 6 million were imposed.  
382.  By investigating and punishing cartels, CADE prevents this kind of practice, decreasing the 
price of medicines and medical products that were artificially high due to anticompetitive practices. 
This helps to achieve public policy goals by making health services more accessible.  
383.  Specifically  to intellectual property, I would like to provide an example of how IP rights may 
be used in an anticompetitive way. Th e case was initiated during the years 1990s but only 
concluded in the 2000s due to the complexity and the tactics of the company. The defendants 
were accused from abusing exclusive market rights in relation to a medicine called Gemcitabine. 
Gemcitabine, so ld under the brand name Gemzar, is a chemothe rapy medication used to treat 
different  types of cancer. These include breast cancer, ovarian cancer, non -small cell lung cancer, 
pancreatic cancer, and bladder cancer.  
384.  The patent was initially filed in the Unit ed States in 1983 and was approved for medical use 
in 1995. The company filed the patent in Brazil in 1993 for the production process of the 
substance, as the compound itself was not novel by then. Since our pre -TRIPS legislation did not 
provide for the pr otection of pharmaceutical products, the company requested that the mechanism 
provided in Article 70.8 TRIPS be applied. However, the patent did not relate to a product, only to 
a process, thus being outside of the scope of Article 70.8.  
385.  After Brazil 's pat ent office had rejected the patent application, the company tried to 
transform its limited "process patent" into a "product patent" application, through an amendment 
to the original patent application.  
386.  Additionally, the company requested to one federal jud ge the suspension of the INPI decision 
process. To a second federal judge (who was unware of the first request), the company 
complained that INPI was excessively delaying a final decision in her case. Because of that, it 
asked for protection under Article 70.9 TRIPS, which provides that, until a product patent is 
granted or rejected by the procedure established in Article 70.8, the company or the individual 
has, for the period of 5 years, exclusive market ing rights. The only problem, in this case, was that 
the delay was caused by the company itself.  
387.  Unaware of the request to suspend the processing of the patent application, the second 
federal judge granted exclusive market ing rights for Gemcitabine when used to treat a specific 
kind of cancer. Not satisfied with this result, the company went to a third judge and claimed 
unrestricted exclusive market ing right for all kinds of cancer, well beyond the scope of the original 
decision. An injunction was granted, extending the protection for eight additional months,  blocking 
a generic competitor from offering the drug in the meantime. The result is that during that period 
the price of the drug in public bids was more than double the price offered by the same company 
when the injunction was rejected ( from 540 reais or  US$144 to 189 reais).  IP/C/M/89/Add.1  
 
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388.  That is why CADE understood that the company abused her exclusive rights and was liable 
for "sham litigation". CADE imposed a fine of 36.6 million reais or US$10 million dollars. There was 
no need to issue a compulsory license in thi s case, as the defendant did not have any legal and 
valid patent. This Antitrust Law decision is important not only for this case, but also to signal to 
other enterprises that this kind of illicit strategy will be punished in the Brazilian Juridical System . 
389.  In this respect, it is important to underline that Brazil never used Article 31(k) TRIPS as a 
remedy for an anticompetitive practice. While the single case of a compulsory license issued in 
Brazil did involve a medical product, it s issuance was based on public non -commercial use to treat 
HIV patients.  
390.  In recognition of the underlying public policy objectives of national systems for the 
protection of intellectual property, including developmental and technological objectives, Articles 7 
and 8 of the TRIPS Agreement  contain clear language regarding the relationship between public 
interest and the protection and enforcement of intellectual property rights. Further, Articles 31(c), 
31(k) and 40 of the Agreement recognize that the exercise of intellectual prope rty rights may 
entail anti competitive effects.  
391.  In the field of medical products, it  is of particular importance to assure that the exclusive 
right granted to the patent, trademark or other right holder does not become itself a hindrance to 
technological in novation and access to medicines.    
392.  Past government reports in the pharmaceutical sector have  shown that the anticompetitive 
use of patents not only reduces the welfare of society by restricting access to off -patent medicines, 
but also affects innovation activities in the pharmaceutical sector, impact ing the generation of new 
life-saving medicines. Regardless of each Member 's level of development, it must be stressed that 
competition law is essential to ensure that the intellectual property system works pr operly and 
fulfils its goals.  
393.  We hope this document fosters the debate about TRIPS and its relationship with competition 
law. The cases and examples mentioned today are part of a non -exhaustive list of what happened 
in Brazil, in relation to competition l aw and public health outcomes. We invite other delegations to 
join the debate, allowing us to have a rich exchange of views and experiences.  
13.4  China  
394.  During the meetings of the TRIPS Council in 2017 and 2018, Members were actively involved 
in the issue of intellectual property and the public interest  and good results have been achieved. 
China believes the protection of intellectual property rights should contribute to the mutual 
advantage of producers and users and to a bal ance of innovation and public interest.  
395.  With regard to the relationship between intell ectual property and competition, China's  anti-
monopoly law clearly stipulates that this law is applicable to the conduct by undertakings to 
eliminate or restrict market c ompetition by abusing intellectual property rights.  
396.  We believe that the scope of the use of intellectual property rights is not borderless. 
Intellectual property right holders shall not use intellectual property to restrict or hinder 
competition.  
397.  But we also make sure that intellectual property rights are well protected within the scope of 
the laws and regulations. In the anti -monopoly of China, it is also clearly stipulate d that this law is 
not applicable to conducts by undertakings to implement their in tellectual property rights in 
accordance with relevant intellectual property laws and administrative regulations.  
398.  China thinks that competition and the protection of IP rights  do not oppose each other, 
instead they have common goals . These are promoting c ompetition, enhanc ing innovation, 
protecting consumers and safeguarding public interest.  
399.  In 2015, the former State Administration for Industry and Commerce formulated the 
"Regulation on the Prohibition of Conduct Eliminating or Restricting Competition by A busing IP/C/M/89/Add.1  
 
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Intellectual Property Rights". This regulation is more detailed and is made to implement principles 
of the Anti -Monopoly Law.  
400.  Finally, China believes the discussion on intellectual property and public interest should be 
open and inclusive . Members could exchange views and experience s on how to take advantage of 
flexibilit ies in the  TRIPS Agreement , including the competition law and policy.  
13.5  India  
401.  I would like to support the statements made by South Africa, Brazil and China. In India, we 
have specific IP legislations (namely Patents Act 1970, Tra demarks Act 1999, Copyright Act , GI Act 
etc.) where anticompetitive concerns have also been dealt  with. In addition to this, the 
Competition Act 2002 as a general act keeps track of every market -unfriendly activity cropping up  
in Indian markets. As both sets of legislation  (IP legislations and Competition Act 2002) have the 
jurisdiction and power to deal with IP cases, therefore, both laws determine the manner in which 
the an ticompetitive issues relating to IP are to be resolved.  
13.6  Indonesia  
402.  Indonesia welcomes the inclusion of this agenda item in the TRIPS Council and supports the 
discussion in the Council for TRIPS of the relation ship between IP and Public Interest, especially 
with regard to the issue of public health and competition policy. As Members are all aware, the 
TRIPS Agreement  sets minimum standards of IP protection, including the issue of competition 
related to public health. Members have the right to design their own policies in accordance with 
domestic needs and interests.  
403.  The legal basis to deal with monopolies and unfair competition Indonesia has Law  No. 5 of 
1999 concerning the prohibition of monopolistic practices and un fair business competition. It 
states that this is an unfair business competition and contains specific and comprehensive rules 
governing competition among business actors.  
404.  Article 3 states that the basic objective of Law No. 5 is to safeguard the public i nterest and 
improve the efficiency of the national economy in order to better the welfare of the public. 
Indonesia has an independent enforcement agency to enforce the law , i.e. the C ommission fo r the 
Supervision of Business Competition, Komisi Pengawas Pe rsaingan Usaha (KPPU). Relate d to 
intellectual property, Law No. 5 provides exemption from its scope concerning intellectual property 
rights, trade secrets and franchises .   
405.  The provision is not an absolute exemption from the existing  prohibition. The exem ption 
provision must be viewed in the context of the following:  
• intellectual property licence agreement is not automatically leading to monopolistic practices 
and unfair business ; 
• monopolistic practices and unfair business arising from the implementation o f intellectual 
property licence is a condition which can be prevented through competition law;  
• in order to apply the competition law to the implementation of intellectual property licence 
agreement , it must be proven that 1) the intellectual property licen ce agreement is 
consistent with the law and 2) that there are conditions indicating  a monopolistic practice 
and unfair business.  
 
406.  Finally, Indonesia will take the opportunity to support South Africa, China and India as the 
proponents of this agenda  item. Therefore we propose that this agenda item be maintained for the 
next meeting of the TRIPS Council, especially with regard to the session on IP and Public Interest, 
including the sharing of experience s regarding the utilisation of flexibilities of the TRIPS Agreement  
by Members.  
13.7  United States of America  
407.  The United States welcomes the opportunity to participate in this discussion and share our 
views on intellectual property, competition, and the impor tance of prudently applying competition 
law in appropriate circumstances.  IP/C/M/89/Add.1  
 
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408.  The United States has long held that IP protection is very much consistent with furthering 
the public interest and that international cooperation to strengthen and provide confidence  in 
domestic IP systems can help maximize these benefits. We are concerned, based upon the 
cosponsors ' concept paper and some interventions, that this agenda item could discuss "public 
interest" in a way that fails to account fully for the benefits of prot ecting IP.   
409.  One potential negative consequence of an insufficiently nuanced discussion could be to 
discourage Members from striving towards and upholding robust domestic IP regimes, harming 
incentives for critical future innovations that would greatly ben efit the public.   
410.  The United States fully believes that "the intellectual property laws and the antitrust laws 
share the common purpose of promoting innovation and enhancing consumer welfare."15 We also 
recognize that intellectual property and competition are distinct disciplines implemented and 
overseen by different  administrative authorities. T he TRIPS Council is not the ideal venue to have 
detailed discussions of competition law and policy con cepts.   
411.  As we will describe in more detail below, the misapplication of competition law is particularly 
concerning in IP disciplines because it runs the risk of forestalling future innovation . As such, 
antitrust enforcers should  strive to eliminate as muc h as possible the unnecessary uncertainties for 
innovators and creators in their ability to exploit their intellectual property rights, as those 
uncertainties can also reduce incentives for innovation. Innovative firms pay close attention to 
both IP and co mpetition laws in foreign markets when determining where to invest and partner . If 
competition law is misapplied in the IP context it runs the risk of discouraging the high -value R&D 
and manufacturing that many Members seek to attract and promote.   
Co-sponsor references to outside research  
412.  The belief that intellectual property and competition laws can coexist and share common 
purpose is not unique to the United States, and, in fact, can be found in the trilateral WTO, WIPO, 
and WHO study  on IP and Public H ealth cited by the cosponsors.   
413.  I would like to draw your attention to two points in the Trilateral Study  that are not included 
in the cosponsor s' submission:  
• "Openness to international trade generally promotes competition, and offers improved 
affordability and access. By enabling a wider range of suppliers to serve the population, it 
can also enhance security of supply."  
 
• "In the area of innovation, the aims and effects of IP protection and competition policy can 
be complementary: both are aime d at fostering innovation by creating incentives to 
develop new products as an advantage over competitors. IP protection for novel medical 
technologies is generally considered to be an important means of promoting investment in 
R&D of new medical technolog y. This leads to competition between different originator 
companies with regard to the development of valuable new medical technologies, and 
therefore with regard to their earlier production and availability. This form of competition is 
generally not hinde red by IPRs, rather it is enhanced by them."  
 
414.  The cosponsors also invoke the 2030 Agenda for Sustainable Development , in particular  
Sustainable Development Goal 3. It is important to note that nowhere in the 2030 Agenda is 
competition law or policy prescri bed as a way to achieve the SDG targets. In fact, misapplication of 
competition law to IP cases could make it more difficult to achieve certain goals, such as ending 
communicable diseases, promoting newborn and infant health, and supporting the research an d 
development of vaccines and medicines, as we do not currently have all of the health technologies 
needed to fully address these challenges.   
415.  With respect to the UNSG High-Level Panel Report ( HLP) on Access to Medicines, as the 
United States explained in  previous statements, we were deeply disappointed by the Report, which 
detracts from, rather than advances, the critical objectives of identifying practical ways both to 
increase access to safe effective, affordable, and lifesaving medicines around the wor ld and to 
support policies that drive the development of new medicines. I remind the Council that the HLP 
                                                
15 "Antitrust Guidelines for the Licensing of Intellectual Property" (DOJ, FTC), 1 December 2017.  IP/C/M/89/Add.1  
 
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Report lacked consensus among panelists and note th at the Report  included the following 
statement from one panelist that is relevant to today 's discus sion: "without innovation, there will 
be no new tools for public health needs, new pandemics, and AMR. There are already precious few 
diagnostics, vaccines, and medicines that can address these menaces and limited sources to 
support research into basic bio logy that underpins them. It would be unwise to set into motion 
activities or policies that further choke innovation, placing large populations at risk and 
contradicting the core principles under which the HLP was convened."  
416.  As the United States and many o ther Members have explained during past TRIPS Council 
interventions, the vast majority of medicines on the WHO 's Essential Medicines List are not 
patented, yet remain out of reach for many patients.   
417.  By focusing on IP -related competition issues, China, So uth Africa, India, and Brazil have 
asked the TRIPS Council to focus on governmental tools that, if misapplied, could threaten 
innovation, while ignoring the barriers that affect medicines that are without patent protection.  
US policy on IP and competition  
418.  The United States believes innovation is key to sustained economic growth. It benefits 
consumers through the development of new products, processes, and services that improve lives 
and address unmet needs. At the same time, innovation is complex and risky.  Intellectual property 
rights are necessary to promote innovation in the face of that risk. Likewise, competition drives 
firms to create new or better products in these complex environments. As a result, the US believes 
in strong intellectual property righ ts and market -based competition to promote economic 
development.  
419.  It is important to keep in mind what patents can do and what they cannot. The granting of a 
patent does not confer automatic commercial success or market share —in fact the vast majority of 
patents in the United States are either never commercialized or fail to achieve a profit for the 
patentee. A patent may exclude others from making or selling the same invention, but does not 
prevent others from finding novel ways to achieve innovative soluti ons to common problems. It is 
for this reason that there are not one, but several, patented medicines on the market to cure or 
treat certain illnesses, such as heart disease or arthritis.   
420.  Furthermore, one of the important benefits of the patent system is  the disclosure of a 
written description of the invention and manner and process of making and using it, so as to 
enable any person skilled in the technological area to which the invention pertains to make and 
use the same. This disclosure helps to ensure that upon expiry of a patent, others have the means 
to quickly enter the market, which, in turn, provides consumers with more, and often cheaper, 
products.  
421.  Given these and other benefits of the patent system, of particular concern to the United 
States is t he possibility that competition laws could be used as a means to gain access to desirable 
intellectual property rights or regulate royalties in order to advance broad social or political goals 
that could undermine free market competition. When a competitio n authority favours one 
competitor over another through the forced sharing of IP rights, or the regulation of royalty 
payments, it can diminish or remove crucial incentives to innovate because exclusive property 
rights or the benefits of being first -to-market are eroded. This innovation disincentive can hurt 
consumers, who will no longer benefit from newer and higher quality products or services. We 
believe that reliance on market -based pricing and unilateral freedom to choose whether to license 
IP, and if so, to whom one will license, leads firms to efficient investment in R&D because they 
know there is a chance of recoupment. Therefore, we disagree with the cosponsors ' submission as 
to where it suggests that excessive pricing provisions of competition laws  should be used to gain 
access to medicine.  
422.  The competition issues raised in the submission, such as liability for excessive pricing and 
the use of compulsory licensing remedies, have been debated in more competition -focused 
international organizations suc h as the OECD and the International Competition Network (ICN). As 
these raise competition, not IP issues, those are more appropriate venues than the TRIPS Council 
to address such issues.  IP/C/M/89/Add.1  
 
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423.  The United States does not regulate "excessive pricing" under US anti trust law and we have 
encouraged jurisdictions that have excessive pricing laws to refrain from applying them to IP 
rights, which are designed to promote innovation through, among other things, investment in 
R&D. Antitrust enforcers who impose liability fo r pricing "too high" may deter R&D investment 
because they supplant market -based forces with an artificial cap.  
424.  We believe it is also important to consider that it is not illegal merely to have market power 
or a monopoly; many monopolists obtained their po sition by creating better, cheaper, more 
attractive products. This system promotes innovation because it incentivizes first -entrants to 
develop the best product. It also creates incentives for rivals or new entrants drawn by the lure of 
large rewards.  
425.  A related point is that the US Antitrust Agencies do not rely on a presumption that an IP 
asset conveys market power. The exercise of an IP right does not necessarily create market power 
or a monopoly. There will often be sufficient actual or potential close s ubstitutes for a product, 
process, or work to prevent the IP owner from obtaining market power. This point has been 
recognized by the US Supreme Court. Many jurisdictions recognize this fact and have adopted this 
principle that IP ownership does not necess arily create market power in their own IP -competition 
guidance (including China).  
426.  As China, South Africa, India, and Brazil point out, TRIPS acknowledges the application of 
competition law in Article 40. The US Antitrust Agencies ' focus is on evaluating wh ether specific 
conduct harms competition. Firms might, for example, engage in anticompetitive exclusion 
through collusive agreements that unlawfully limit entry into a market, which may result in higher 
prices than would have been the case in a competitive  market. The focus is not on whether a 
drug's price is too high or particular royalties for a pharmaceutical patent are unreasonable, but 
rather on evaluating the effect of conduct. This keeps the focus of competition enforcers where it 
should be —on protec ting the competitive process.  
427.  In addition, the US Antitrust Agencies have also urged caution in the reliance on compulsory 
licensing remedies. We recognize that the core right to exclude (as discussed in Article. 28) 
promotes innovation. Indeed, choosing not to share an intellectual property right is a form of 
exercising that exclusive right. Thus, the US Antitrust Agencies ordinarily will not require the 
owner of intellectual property to create competition in its own technology. And we believe the 
"antitr ust laws generally do not impose liability upon a firm for a unilateral refusal to assist its 
competitors, in part because doing so may undermine incentives for investment and innovation."  
428.  As we have demonstrated in the United States, IP and competition p olices can and should 
coexist and complement one another. The United States is committed to achieving public health 
goals in a way that upholds IP rights and promotes competition. For example, by accelerating Food 
and Drug Administration (FDA) reviews of g eneric drugs, the United States approved over 1,000 
generic drugs in 2017, which is the most in FDA 's history in a calendar year by over 200 drugs.  
429.  We urge China, South Africa, India, and Brazil, as well as other WTO Members, to find 
responsible ways to c arry out domestic IP and competition laws, so as to contribute to the 
innovative ecosystem that is made possible by IP incentives.  
13.8  European Union  
430.  The EU views critically a number of issues discussed in the Com munication from China, 
South Africa and co -sponsors. To start with and as previously stated, the work conducted by the 
United Nations Secretary -General 's High -Level Panel on Access to Medicines started from an 
assumption that there was "policy incoherence between the justifiable rights of inventors, 
international human rights law, trade rules and public health". As the European Commission 
already indicate d in its written contribution to the Panel and in various interventions at this 
Council, it does not share that assumption.  
431.  This is why in its written contribution to the Panel, the Commission encouraged it to adopt a 
holistic approach to the problem of a ccess to medicines that could result in a valuable contribution 
to the wider debate. However, due to its limited mandate, unfortunately, the High -Level Panel has 
focused its proposals exclusively on addressing an alleged conflict between a research and IP/C/M/89/Add.1  
 
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development model that (partially) relies on intellectual property rights and the possibility of 
providing affordable medicines. In doing so, it has missed an opportunity to advance more 
balanced, comprehensive and workable solutions to the problem of access to health. As we all 
know, IP protected medicines are only a very small fraction of the medicines that patients in need 
in many developing countries lack access to.  
432.  While there are a number of  issues in the Communication the EU disagrees with, we would 
like to particularly voice concern over the mentioning of "refining the criteria for grant of a patent 
(patentability criteria)" as a TRIPS flexibility. The TRIPS Agreement  is very clear and unam biguous 
on patentability criteria. TRIPS Article 27(1) states very unmistakably that: "patents shall be 
available for any inventions, whether products or processes, in all fields of technology, provided 
that they are new, involve an inventive step and are capable of industrial application." We see with 
growing concern that misinterpretation of this Article has led many jurisdictions to apply practices 
in the patent grant process which could be interpreted as amounting to additional patentability 
criteria no t mentioned in the TRIPS Agreement . The EU urges those Members to reconsider their 
practices.  
433.  In the general, the EU would also be cautious to consider the use of competition policy a s a 
TRIPS flexibility. Without doubt, the TRIPS Agreement  is compatible w ith the application of 
competition policy measures. However, as clearly provided for in Article 28(1) and (2), as well as 
in Article 40 (2), these measures have to be consistent with the provisions of the TRIPS 
Agreement  and cannot be used as tools in avoi ding the obligations under the Agreement.  
434.  If applied in a compatible manner with TRIPS, competition policy has a role in regulating and 
controlling unlawful market behaviour  in any sector, including the pharmaceutical sector.  
435.  Taking into account the sensi tive balance between encouraging, incentivizing and ensuring 
continued innovation in the sector, on the one hand, and competitive generic medicines, on the 
other, the EU 's antitrust enforcement seeks to promote open and competitive markets in the 
sector.  
436.  In the pharmaceutical and health services sector, the European Commission 's Directorate 
General for Competition has investigated a number of anticompetitive agreements between 
companies (pursuant to Article 101 Treaty on the Functioning of the European Unio n (TFEU) , which 
prohibits agreements restricting competition) and abuses of a dominant position by dominant 
market players (Article 102 TFEU). It also reviews proposed mergers and intervenes where market 
concentration would significantly impede effective c ompetition and lead to less innovation.  
437.  For example, the EU Commission has adopted decisions against pay -for-delay agreements. A 
landmark case was the 2013 Lundbeck decision, which concerned citalopram, Lundbeck 's 
blockbuster antidepressant medicine.  After the basic patent expired, Lundbeck still held a number 
of related process patents with limited protection. Lundbeck paid significant sums, purchased 
generic 's stock for the sole purpose of destroying it, and offered guaranteed profits in a 
distribution a greement, in return for agreements from generic producers not to enter the market 
with generic product. These agreements were found to infringe Article 101 TFEU.  
438.  The EU Commission fined Lundbeck (€93.8 million) and generic competitors (€52.2 million) 
for d elaying market entry of generic citalopram. In September 2016, the EU General Court 
basically upheld the Commission decision. Appeals are currently ongoing  before the European 
Court of Justice.  
439.  In another example, the EU Commission is currently investigati ng, for the first time ever, 
pricing practices for life -saving medicines in the Aspen investigation. Aspen is a global 
pharmaceutical company headquartered in South Africa, with several subsidiaries in the EEA. The 
investigation concerns Aspen 's pricing pr actices for niche medicines used for treating cancer, such 
as hematologic tumours. The medicines are sold with different formulations and under multiple 
brand names. Aspen acquired these medicines many years after their patent protection had 
expired. Hence , we are talking here about generic drugs.  
440.  The Commission is investigating allegations suggesting that Aspen has imposed very 
significant and unjustified price increases of up to several hundred percent, so -called 'price IP/C/M/89/Add.1  
 
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gouging ' in violation of Article 1 02 TFEU. To impose such price increases, Aspen may have 
threatened to withdraw the medicines in question in some EU Member States and may have 
actually done so in certain cases. The investigation covers all of the EEA except Italy, where the 
Italian compet ition authority already adopted an infringement decision against Aspen in 
September  2016.  
441.  The EU Commission has not pursued a case involving unreasonably high royalties for a 
technology transfer. Nor has it ordered an originator company as the IP holder t o grant a licence 
for its proprietary technology to remedy a competition law infringement. Such interventions would 
only occur under very strict conditions and in exceptional circumstances, which are typically not 
associated with conditions of competition between the innovator and the generic companies.  
442.  In addition to the obligations under the TRIPS Agreement , with respect to compulsory 
licencing under Article 102, the test developed by the EU courts sets out very strict criteria which 
are usually met in hi ghly exceptional circumstances:  
(i) licensing is indispensable for the exercise of an activity in a neighbouring or related 
market;  
(ii) the refusal is capable of eliminating any effective competition on that market;  
(iii) the refusal prevents the introd uction into the market of a new product for which there is 
potential consumer demand; and  
(iv) the refusal has no objective justification.  
443.  It has never been applied as a remedy against excessive pricing (i.e. a licence to generics to 
bring down the price ) or to otherwise remedy patent barriers to generic entry.  
444.  Compulsory licences to pharmaceutical patents as a remedy to excessive pricing would have 
a negative impact on innovation incentives and appear to be superfluous, because a competition 
authority, once it has established unlawful market behaviour, has the normal toolbox of 
competition policy remedies.  
13.9  Switzerland  
445.  It is with interest that we have studied the communication from China, South Africa, and co-
sponsors. This topic at the intersection of competition law and IP is a challenging one , it is only to 
some limited extent relevant in the TRIPS context.  
446.  However, we think it is important to include an economic point of view in this discussion. 
Both co mpetition law and IP law start from the premise that government intervention can be 
justified to redress the effects of a market failure. The promotion of public health and the 
development of new and better treatment for unmet medical needs in particular i s a textbook 
example of where you need to redress the market failure. Without the patent law and test data 
protection, you would have a lack of incentive for investing the massive funds required for R&D.  
447.  Depending on the characteristics of the market fail ure, there are different means to fix the 
problem. We can distinguish between three kinds of market failure:  
a. Firstly, relating to goods with public good characteristics; examples of such goods are 
"inventions" or "creative works": this market failure can b e fixed with IP such as patents 
or copyright.  
b. Secondly, a market failure relating to information asymmetries between buyer and 
seller, e.g. concerning the quality of a good: this market failure can be fixed by 
introducing another IP right, namely trademark s or geographical indications.  
c. And last , but not least, in the case of  abuse of market power, for  example if you have 
the power to control market entry: in this situation, antitrust law can be used as a fix.  IP/C/M/89/Add.1  
 
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448.  The challenge we face with respect to IP rights such as patents or copyright is that they 
explicitly provide for a temporary monopoly/exclusive right. As for patents, the idea is to 
incentivize investments in R&D. Granting such monopoly/exclusive right is considered to be a 
precondition for innovation a nd future wealth. The patent right as well as all other IP rights are a 
deliberate restriction on free competition, which provides a necessary incentive.  
449.  Just like any other legal right or title granted by a legal system, patent rights can be abused 
and th ere are several means in place to prevent this. Competition law is one legal means to 
prevent such abuse. The intellectual property system itself provides a number of its own measures 
to safeguard against abuse, which are also reflected in the TRIPS Agreem ent. 
450.  Submission IP/C/W/643 mentions some aspects of the wider framework to be considered. 
Switzerland only partially agrees with the reference points set out in the co -sponsors ' paper. We 
would like to recall that the UN High -Level Panel on Access to Medic ines was a process that was 
not driven by the member states. The Members  of the High -Level Panel did not reach consensus 
and the Member States did not endorse the recommendations.  
451.  Switzerland believes that building on voluntary and inclusive efforts (such as the Medicines 
Patent Pool), instead of denouncing the intellectual property system, is the way forward. This 
approach also corresponds with the collaborative spirit of the 2030 Agenda for Sustainable 
Development.  
452.  But how do the two legal institutes, ant itrust and IP law, relate to each other? In 
Switzerland, the Antitrust Act, or so -called "Cartel Act", states that it does not apply to effects on 
competition that result exclusively from the legislation governing intellectual property. Conversely, 
we can say that the Antitrust Act may apply in cases where the effects on competition also arise 
from the Patents Act. IP and competition law are considered not to be contradictory, but 
complementary.  
453.  Having said that, any strong measures taken under the antitrus t act or the intellectual 
property legislation, such as compulsory licences, should be considered solely as a policy tool of 
last resort. They are measures that may not necessarily reinstate competition, but may rather 
have a far -reaching, negative impact on the investment climate, particularly on investments in 
R&D of innovative medical products in a market. They should thus be applied with utmost 
restraint.  
13.10   Korea, Republic of  
454.  Korea would first like to tha nk China, India and South Africa for their proposal (IP/C/W/643) 
to discuss how to promote public health through competition law and policy in the Council. As 
mentioned by the delegates from the US and the EU, Korea is also of the view that the TRIPS 
Agree ment and competition law can co -exist in a mutually supportive manner . Misapplication of 
competition law in the name of public health could run the risk of unduly hindering the IPR and 
forestalling the invention of new, innovative medicine s and health tech nolog ies.  
455.  However, we also think that there exist some explicit anti -competitive behaviours in the 
pharmaceutical industry and that proper implementation" of competition policies can serve as an 
effective tool to tackle those behaviours and achieve public  health by regulating abusive exercise 
of IPRs.  
456.  Without prejudice to Korea 's position on the elements in  document IP/C/W/643 , I would like 
to share Korea 's experience of tackling abusive exercise of IPRs through the implementation of 
competition policy.  
457.  The case I would like to mention is similar to the first of the two cases presented by the EU. 
Although the EU delegate used a different terminology, the essence is the same - i.e. reverse 
payment, a common form of collusive behaviour in the pharmaceutical industry. Unlike the usual 
practice where a patent owner of a new drug receives licensing fees from a generic manufacturer, 
a patent owner provides the latter with economic benefits, what is known as "reverse payment", to 
deter the entry of generic drugs i nto the market. Reverse payment settlement has a significant 
anti-competitive effect:  a patent holder maintains a monopoly status in the market even after the IP/C/M/89/Add.1  
 
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expiration of the patent rights by forestalling the selling of generic drugs, while consumers pay  
higher prices than they would otherwise.   
458.  The Korean Government has been exerting tremendous efforts to eradicate such 
anti-competitive practices in the pharmaceutical industry. In 2011, the Korea Fair Trade 
Commission, the government agency responsible for the enforcement of competition law, took 
remedial actions with regard to reverse payment. The FTC issued an injunction and fined a patent 
holder of a drug, a multi national pharmaceutical company  who engaged in the practice of reverse 
payment in return for the exit of a generic drug manufacturer from the market. This marks the 
first case in which reverse payment was regulated by a government agency in Korea.  
459.  The Korean Government will even further strengthen its efforts to promote public health by 
ensur ing a fair and competitive market environment in the pharmaceutical industry, in a manner 
that is consistent with the TRIPS Agreement  and does not hamper the necessary innovation in the 
health sector.  
13.11   Australia  
460.  Australia notes the communication regarding Intellectual Property and the Public Interest: 
Promoting Public Health through Competition Law and Policy. Australia has a number of policies 
and procedures in place to achieve public health outcomes, including i n relation to intellectual 
property and competition law and policy. For example, Australian law provides statutory provisions 
to allow free access to patented inventions fo r the purpose of research and experimental use, 
introduced through the Intellectual Property Laws Amendment (Raising the Bar) Act 2012. The 
introduction of this measure provides researchers with a freedom to experiment and maximises 
the potential for research in Australia, including to support public health outcomes.  
13.12   Japan  
461.  For the purpose of having meaningful discussions under  this agenda item, the delegation of 
Japan would like to ask other Members to note that it might be better to take a more thorough and 
cautious approach, taking into account not o nly the interests of third parties but also those of 
patent rights holders. As this delegation reiterated, the HLP report should not constitute the basis 
for this discussion.  
462.  In this context, this delegation would also like to point out that provisions suc h as those in 
Article 31(k) and Article 40 of the TRIPS Agreement , rest on an intricate balance. Therefore, Japan 
believes that we should be cautious in discussing this agenda item. And these provisions should 
not be interpreted too broadly. Any measures t aken under these provisions should be fully 
consistent with the TRIPS Agreement . From this perspective, this delegation shares the concern 
generally expressed by the United States delegation about document IP/C/W/643.  
13.13   South Africa  
463.  On behalf of the proponents, I would like to thank Members who have intervened on this 
particular topic. I believe the objective of having entered into a discussion on competition does not 
undermine the  application of IPRs as recogniz ed under the TRIPS Agreement . The proponents 
demonstrated that there are various pro -competitive provisions in the TRIPS Agreement . Four 
provisions specifically refer to competition law issues : Article 6, Article  8.1, Article 31(k) and 
Article  40. There is no doubt that these provisions leave WTO Members broad policy space to apply 
competition law in respect of acts related to the acquisition or exercise of IP rights. Outside of 
these provisions there are several other provisions, as demonstrated, that give context to these 
rights. Whereas our paper does not advocate the use of competition policy to violate rights 
recognize d under the TRIPS Agreement , it reminds all of us that the granting of intellectual 
property rights recognize  inherently the balance betwe en the rights holder and the vested rights 
that society have in this particular process.  
464.  Article 8 of the TRIPS Agreement  sets out a very important parameter for the application of 
appropriate measures and requires that they be consistent with the Agreeme nt. Nowhere in our 
paper do we make the statement that rights recognized under the TRIPS Agreement  should be 
unduly impeded by application of competition law principles. The proponents also indicated that  IP/C/M/89/Add.1  
 
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competition law should recogniz e the basic rights g ranted under intellectual property law and that 
intellectual property does not necessarily create market power. As a result, to determine the effect 
of any restrictive practice, some sort of rule of reason should be applied to assess the effect of 
such a p ractice, short of such a practice essentially being deemed inherently illegal. The facilitation 
of universal access to health, including access to medicines and medical technology is not only a 
function of the IP system, it requires a much broader approach , as pointed out by the US and 
several other delegations. This cannot be disputed . In previous c ontributions proponents 
recogniz ed this fact, the interplay between the domains of health, trade and IP affect medical 
innovation and access to medical technolo gies, so focusing merely on IP as one of the modalities 
may be misplaced.  
465.  In closing, we would also reiterate that the expression of competition law is generally used 
to describe a set of rules aimed at addressing anti -competitive behaviour associated wit h the 
existence of market -dominant positions and restrictive business practices. What we can see is that 
some competition laws focus on the effects of regulated conducts on competitors, while others 
focus on competition as such. Consumers (and not just com petitors) are protected to a different 
extent under various national regimes . For instance, the approaches of the United States and the 
EU differ in the treatment of dominant firm conduct . The US representative indicated that US 
antitrust statutes have no equivalent to the excessive pricing prohibition under EU rules . This is 
essentially an indication that all of us apply to a certain extent different rules when it comes to 
competition. We hope that this clarification puts the discussion of this topic on an  even keel . We 
are happy to reach out to any delegation that needs further clarification on any of the points that 
we have made.  
13.14   Brazil  
466.  I would like to support the statement made by South Africa, I think we have all learned a lot 
about this topic, with our discus sions here at the TRIPS Council.  As mentioned by my colleague 
from South Africa, competition law does not endanger IP rights, in fact , it reinforces them when it 
provides a level playing field among competitors. I would like to comment on two topics that were 
mentioned by the delegations of the US and the EU. The first is on the effect of patents on access 
to medicines. The patent issue,  as argued in this and other fora, is one of the central elements to 
broader issues regarding access to medicine s. The broader approach on access to medicines is 
rightly done by WHO, but the mandate of this Council is intellectual property, so I think this  is fully 
under the purview of the TRIPS Council to discuss this.  
467.  The second comment that I would like to make is about the WHO Essential Medicines List. It 
is factually correct to say that the number of non -patented medicines or the Essential Medicines 
List is much higher than those benefiting from patent protection. But despite this fact, 
governmental, cooperative and out -of-pocket expenses are proportionally much higher for the 
patented medicines on the Essential Medicines List. On top of that , WHO has historically preferred 
the inclusion of non -patented medicines with equivalent therapeutic value, precisely because they 
are cheaper. In conclusion , I would like to thank all the delegations who have made statements 
under  this agenda item . We hope to rever t to it at the next session of the TRIPS Council.  
13.15   New Zealand  
468.  New Zealand thanks all Members  who have presented under this agenda item. We recognize  
the importance of this topic and consider the sharing of exampl es and national experiences to be a 
useful exercise. We look forward to sharing this information with interested persons back in 
capital.  
13.16   South Africa  
469.  Just on a point of process, there has been one or two delegations that have indicated that 
they may want a continuation in discussion of this topic after referring back to their capital for 
further analysis. From the side of the proponents, we would wish t o request that this item be 
entered as a continuation at the next TRIPS Council.  IP/C/M/89/Add.1  
 
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13.17   United States of America  
470.  The United States wishes to object to a continuation of this agenda item and recommends 
that, if the proponents would like to continue to discuss it, to follow the rules of procedure and 
submit it as an ad hoc agenda item at the appropriate time.  
13.18   South Africa  
471.  We note the intervention of the United Sta tes and as may be the case, we will follow such 
rules, and notify for the next TRIPS Council meeting an ad hoc  item that continues a discussion, 
but with a different focus in respect to competition law.  
13.19   European Union  
472.  We would briefly like to reiterate what we also mentioned earlier in the intervention, that 
only to the extent that competition policy is relevant to the TRIPS Council, we should also discuss 
competition policy on a continuous basis, because many of the cases for example which we, as an 
information point mentioned here clearly show that the issue is not necessarily only related to IP, 
or probably to a large extent not related to IP, but simply to anti -competitive behaviours. I do not 
think that the  TRIPS Council should venture into long and detailed discussions of competition 
policy, so we would urge the Members who request an ad hoc  item for the next TRIPS Council to 
duly reflect also the clear linkages if they make that point.  
13.20   South Africa  
473.  We note the intervention from the European Union.  I think firstly, as we indicated, 
competition -related provisions are squarely within the ambit of the TRIPS Agreement . Secondly, 
we believe that , as many delegations indicated, the IP and competition -related issues are 
complementary to one another . As a result, this is a topic which is useful. Of course, competition 
law in its general meaning  perhaps is broadly applied, but when it comes to the app lication and 
exercise of IP rights, there may be certain abusive practices that may be regulated by the 
application of competition law norms . As a result, the proponents believe that there is more scope 
to discuss national experiences and will formulate a focused discussion , bringing out some more 
examples of how IP and competition law can co -exist and how the application of these norms in a 
complementary way will lead to increased societal benefits.  
13.21   United States of America  
474.  The United States would just like to support the EU and its position, and remind the Council 
that the TRIPS Agreement , the of ficials present in this room, represent largely IP agencies . There 
are already organizations and internat ional organizations such as the OECD and the International 
Competition Network that discuss these types of concerns from an anti -trust and competition 
perspective . There are  more likely to be the appropriate forums to discuss these  issues . 
13.22   Brazil  
475.  We are enjoying very much this interactive discussion. Brazil would like to support what was 
mentioned by South Africa on the importance of bringing this topic to the discussion here at the 
TRIPS Council. Unfortunately, not al l WTO Members are part of the  organization s that w ere just 
mentioned by the US, therefore  I think it is useful to have a broader discussion here at TRIPS 
Council.  
13.23   UNCTAD   
476.  Referring to the communication from Brazil, Ch ina, India and South Africa on "Promoting 
Public Health Through Competition Law and Policy" (IP/C/W/643/  and Add.1) and based on our 
experience in providing technical cooperation in intellectual property and health in developing 
countries, UNCTAD would lik e to confirm the need to build capacities in the use of competition law 
and its interface with intellectual property rights and technology transfer in developing countries.  IP/C/M/89/Add.1  
 
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477.  In our technical cooperation activities, we emphasize the use of competition law a nd policy 
to strike a balance between innovation and access. For instance, we discuss cases where 
competition authorities in developed countries analysed abuses of IP and of drug regulatory laws 
to prevent market entry of generic competitors after patent e xpiry.  
14  INFORMATION ON RELEV ANT DEVELOPMENTS ELS EWHERE IN THE WTO  
Dispute Settlement Consultations  
14.1  European Union  
478.  As a point of information, last Friday, the EU has formally submitted a request for 
consultation with China on Certain Measures on the Transfer of Technology . We understand a 
document number is currently attributed and the document will be circulated short ly. 
14.2  China  
479.  China does not think that it is the appropriate time or place to talk about this issue.  
TRIPS Amendment  
480.  No statements were made.  
IPR-Related Issues in Trade Policy Reviews  
14.3  WTO Secretariat   
481.  Since the last TRIPS Council Meeting in February, the Trade Policy Reviews of the Philippines, 
Montenegro, Guinea and Mauritania have taken place. In the interest of time, we will not attempt 
to summarize  the full range of IP issues covered in each of these reviews; we will limit the update 
to those matters on which other Members actively registered an interest by posing questions 
during the review process. The issues that were of particular interest in th is concrete sense 
included:  
• The exhaustion regime;  
• Administrative capacity in national intellectual property offices;  
• Protection of copyrights;  
• Geographical indications;  
• Patent protection for inventions related to computer software;  
• Compulsory licensing re gime,  including preventing diversion of pharmaceutical products 
imported through a special compulsory license;  
• Supplementary protection certificates for patents;  
• Registration and protection of partial designs as industrial designs;  
• Government agencies invo lved in enforcement;  
• Enforcement of intellectual property rights at the border and in transit;  
• Specific legislation on parallel imports and customs treatment of goods suspected of 
infringement;  
• Existence of policies to allow or prohibit importation of goo ds and services containing 
any form of intellectual property rights;  
• Definition of "infringing goods" and visits to businesses suspected of engaging in 
intellectual property violations;  
• Ratification of the Protocol amending the TRIPS Agreement  and of the 2 015 Bangui 
Agreement; and IP/C/M/89/Add.1  
 
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• Accession to WIPO Conventions (Hague Agreement Concerning the International 
Registration of Industrial Designs International Convention for the Protection of New 
Varieties of Plants 1991; Marrakesh Treaty to Facilitate Access to P ublished Works for 
Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled).  
482.  Additionally, we have contributed with to the TRIPS -related section for the G20 and WTO -
wide Director -General's Monitoring Reports, which should be circulated the com ing weeks. On this 
occasion, the section highlights certain trade -related IP policy initiatives undertaken by Canada, 
the Kingdom of Saudi Arabia, Moldova, China, Mexico, Seychelles, Singapore, Thailand and Turkey.  
15  OBSERVER STATUS FOR INTERNATIONAL INTERG OVERNMENTAL ORGANIZAT IONS  
15.1  India  
483.  India supports granting of permanent observer status to three intergovernmental 
organizations : The  South Centre, the CBD Secretariat and the International Vaccine Institute. All 
the three organiz ations fulfil the requisite criteria laid down by the General Council with regard to 
observer status.  
484.  India requests Members opposing the three organizations to provide a valid reason for their 
stand given that the organizations fulfil the requisite crite ria laid down by the General Council with 
regard to Observer status.  
15.2  United States of America  
485.  The United States position remains the same, and we are unable to support any other 
observer requests at this time and have no new developments or updates to report to the Council.  
15.3  Ecuador  
486.  The delegation of Ecuador would like to take this opportunity to reiterate its support for the 
granting of observer status to the South Centre an d the CBD Secretariat, or at least grant them 
the status of ad hoc  observer s. 
15.4  South Africa  
487.  This delegation would once again call on Members to support the granting of permanent 
observer status to the South Centre, the International Vaccine Institute and the CBD Secretariat.  
15.5  Venezuela, Bolivarian Republic of  
488.  We do not need to recall our position, but we would like to reiterate our support for the 
South Centre as a permanent observer.  
15.6  China  
489.  China supports that the CBD Secretariat and South Centr e should be granted observer 
status.  
15.7  Brazil  
490.  We all know that Brazil supports the South Centre and the CBD Secret ariat to become 
permanent observers to this body, but we also invite the delegation currently opposing these 
organizations to present a reason behind their position, so that we can perhaps start a negotiation. 
So far we have not heard this. I have been fol lowing TRIPS Council for nine years, and we have 
not heard a concrete reason for this opposition.  
15.8  Bangladesh  
491.  We would like to support the South Centre to be granted  permanent observer status to this 
Council.  IP/C/M/89/Add.1  
 
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16  OTHER BUSINES S 
16th Annual Review under Paragraph 2 of the Decision on  the "Implementation of 
Article  66.2 of the TRIPS Agreement " 
16.1  Benin  
492.  We would like to briefly intervene on this item, recalling that, during past reviews of Article 
66.2 r eports, the LDC Group has often highlighted the importance for developed country Members 
presenting these reports to kindly follow the model that has been proposed in order to make this 
easier to use and easier to read in terms of determining the different  actions that have been 
implemented or are under way. Furthermore, the Group has highlighted that it is important that 
the report is consistent with Article 66.2 which concerns actions and initiatives undertaken in 
favour solely of LDCs. We have had the op portunity to highlight that several reports have mixed 
initiatives targeting other developing countries, even with higher income. This makes it more 
difficult to determine the actions undertaken.  
493.  To conclude, Chair, on this item, we have noted that the rep orts are in the majority only 
available in English and do not allow francophone countries to be able to send the reports back to 
capital in order to get feedback prior to the meeting. This in some way places countries with 
French as an official language at  a disadvantage. Yesterday we discussed the document that the 
LDC Group has submitted with regard to the implementation of Article 66.2. This is an additional 
contribution to facilitate the discussion, putting forward a list of actions and initiative which  could 
be undertaken in order to better encourage the provision of incentives to companies and 
enterprises so that these could voluntarily try to transfer technology to LDCs. We were not able to 
achieve consensus on that yesterday, and the Group would like  you to hold consultations with the 
different parties that are involved or are interested, particularly developed countries, as this 
proposal is addressed to developed countries. We hope that we can hold consultations with those 
developed countries that ha ve expressed reservations so as to quickly find a common 
understanding around this document. It is not a binding, but an indicative document, a guide in 
order to allow developed countries to meet their obligations.  
16.2  European Union  
494.  This is to respond to the intervention of Benin with regard to the choice of language of 
reports. We must note that in the European Union there are 28 official languages among Member 
States. All administrations working in their own language mus t translate their contributions into 
English, which is a lot of work for them. We have administrative procedures, descriptions and all 
project documents which are in their own languages, so it would be very difficult to then produce 
versions in several lan guages beyond that. I am not sure it would be possible to transmit this 
information in other languages than that we can read here in Geneva, namely English.  
16.3  Bangladesh  
495.  Listening to the intervention made by Benin and the Eu ropean Union I was thinking whether 
the Secretariat would be in a position to translate the document for French -speaking Members. I 
also support Benin's proposal to have more consultations on the list we have provided so that we 
can have some ideas where w e are heading.  
16.4  WTO Secretariat   
496.  Just to clarify that, as working documents of the Council, these reports, when prepared in 
English, are translated into the official working languages, i.e. into French and Spanish. 
Unfortunately, because of the length of these reports and the tight time -frame, often we receive 
them very close to the meeting itself. This unfortunately means that the translations are delayed. I 
do very much respect the concerns of Benin and other francophone delegations. It is an 
acknowledged difficulty, but unfortunately th e translation task is a very significant one. There are 
two practical solutions I can mention, apart from the overall challenge we have with translations. 
One is to ensure that this a continuing dialogue about the content of these reports. That is what 
we have been trying to do through the workshops and through the follow -up questions and 
answers. But perhaps in a more informal setting we can discuss with delegations how to reach out IP/C/M/89/Add.1  
 
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more effectively, particularly with the LDC Group, so that it is not 'all or nothing :' either there is a 
chance to speak at that session of the Council or it is finished. We do have opportunities for 
continuing the dialogue which all delegations have supported. The second point is that we do hope 
that the use of the e -TRIPS syst em that we outlined yesterday, particularly the notifications 
submission system, the NSS, will speed up the processing of this documentation and make it 
easier to access it. It does not translate automatically  - translation will also remain a sensitive 
professional task  - but at least some of those delays will be reduced. That is one reason why we 
have worked on that system. While this is not an entirely satisfactory situation, and we certainly 
express regrets to francophone and hispanophone  delegations who do have to wait for those 
translations, there are some partial solutions and we will work to enhance those in dialogue with 
the delegations concerned.  
16.5  United States of America  
497.  Just as we are heading into a very busy time for preparing our reports for the next TRIPS 
Council, we want to caution against entering into consultations that may detract from that work. 
We do want to make sure that our reports are as comprehensive and helpful as possibl e, and we 
have taken into account and will continue to review the documents that you have submitted, but 
at this point in time it would be too great of a burden to enter into separate consultations before 
the next workshop.  
16.6  Benin  
498.  We take note of the suggestion of the United States. We know that drafting reports obviously 
takes time and involves a lot of energy and resources. However, these countries have already 
taken these initiatives and actions. We are not asking for additio nal research to find something 
that does not exist, or that is very difficult to find . This should not prevent consultations taking 
place on a document which may enable these countries to contribute more than what we are 
accustomed to receiving from them a lready. We want to be more specific. For several sessions, we 
have been raising this question, but there has been no progress on this. We now want to make 
progress, to move towards an effective implementation on this issue. We need incentives and 
encourage ment perhaps, so that a viable and lasting technological system can be set up for the 
economies of our countries. This means that our countries have to be involved in international 
trade . We want to include countries in this category . Time must be found to  have these 
consultations. These are not endless consultations : they are no t going to take up so much time  We 
are just talking about consultations which will make it possible to see how we can re -orient a 
document, which elements can be taken into account to give more encouragement and incentives . 
That is all we want, so we strongly encourage the United States and other developed countries to 
commit themselves so that we can finalise this certainly very useful document as early as possible.  
16.7  Bangladesh  
499.  I have listened carefully to the statement made by the United States. It is our understanding 
that this consultation, and the preparation of these documents should be mutually supportive. It 
would therefore be better to have t he consultations taking place so can we can better prepare for 
the review. I suppose that everyone will agree that the consultations are needed and that they will 
support the Annual Review.  IP/C/M/89/Add.1  
 
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Work Programme on E -Commerce  
16.8  Bangladesh  
500.  My delegation would like to thank you for your effort. We are of the opinion that Ministers at 
MC11 gave us the mandate to continue the work under the 1998 Work Programme on Electronic 
Commerce. We understand that this Council is one of those four  bodies which has been entrusted 
to examine specific issues. We strongly believe that we have the responsibility to carry out the 
mandate. Moreover, the TRIPS Council has the requirement to report to the General Council for 
the upcoming review in July. How ever, it is frustrating to observe that the Council has nothing to 
report to the General Co uncil due to the fact that the e -commerce Work Programme was neither 
included on the agenda of the February session nor on the agenda of our current session. My 
delegation is convinced that e -commerce has been evolving rapidly and many issues have come 
into the debate, for example data, where the intellectual property right is an important subject to 
discuss. In addition, there has been a continuous innovation in the digital economy. Therefore, we 
need to better understand the importance of innovation and access to technology for spreading the 
benefit of e-commerce to all.  
501.  Against this backdrop, my delegation proposes to include the Work Programme on 
e-Commerce as a s tanding agenda item of this Council until the next Ministerial Session and to 
update the background document by the Secretariat, document IP/C/W/128/Add.1, in order to 
have a fruitful discussion at our next session. My delegation looks forward to a positiv e 
consideration of our request by the Council.  
16.9  United States of America  
502.  The United States objects to establishing any new standing agenda items, including the one 
proposed by Bangladesh.  
16.10   Brazil  
503.  We thank the delegation of Bangladesh for the request. As you have mentioned, Ministers at 
MC11 issued the Decision emphasising the need to re -invigorating our work on the e-Commerce 
Work Programme. It mandates the four bodies which are ref erred there to examine and report on 
aspects of e -commerce pertaining to their activities. It therefore only makes sense to include this 
item on the agenda of our session, perhaps on an ad hoc  basis, to continue to discuss this on a 
sustainable basis. We w ould also like to support the proposal by Bangladesh on updating the 
background document.  
504.  While Brazil has no new document with regard to IP and e -commerce, I would like to take 
this opportunity to recall that we circulated document JOB/GC/113 dated 15 Dec ember 2016, 
co-sponsored by Argentina. It's goal is to launch a comprehensive discussion of copyright 
management in the digital environment. The key motivation is to ensure that the fruits of the 
online environment are fully enjoyed by those who lie at the  core of the copyright system, namely, 
authors and performers, and whose legitimate demand for a fair remuneration for the use of their 
works needs to be addressed by Members.  
505.  We look forward to continuing these debates about e -commerce in order to find a  common 
understanding and to provide the General Council with information necessary to consider the way 
forward on the matter.  
16.11   Benin  
506.  We thank Bangladesh for making this proposal. As Brazil reminded us previously, our 
Ministers  in Buenos Aires called for the work under the 1998 Work Programme to be reinvigorated. 
This was the outcome of consensus. And yet Members that were present at the Ministerial 
Conference now object to the inclusion of this item on the agenda. We do not fin d it very 
comfortable to have to have a discussion on this again. Ministers have already decided this. We 
are meant to continue with this Work Programme : it is set forth already, that is our mandate. It is 
up to the Council to take the necessary measures i n order to accomplish this mandate. The Council 
is one of the WTO bodies that was selected to look at specific aspects of electronic commerce that IP/C/M/89/Add.1  
 
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were relevant in the context of the Work Programme. Therefore, it goes without saying that this 
item is and h as to be on the agenda. Our delegation strongly recommends that this item be 
included on the agenda in conformity with the existing mandate.  
16.12   Venezuela, Bolivarian Republic of  
507.  We also want to thank Ba ngladesh for its proposal. In this connection we wish to support 
both of the proposals made, we feel that they are in line with the mandate received by our 
Ministers in Buenos Aires as to the need to revitalise the Work Programme on E -Commerce.  
16.13   Bangladesh  
508.  I have a question: what prevails, decisions taken by Ministers or by Geneva -based 
delegations? What actually is  the rule of the WTO? If Ministers have given us a mandate, is it our 
responsibility to carry out this mandate or not, or is it up to us to decide whether we will carry out 
the mandate or not? This Council has the requirement to carry out the mandate of th e Ministers. 
We think that there is the requirement by the Council to have electronic commerce on its agenda.  
16.14   Benin  
509.  I was asking myself questions about your conclusion. For our part, we wonder whether 
delegations have higher status than Ministers who took the decision, because in the organisational 
chart of the WTO the highest body for taking decisions is the Ministerial Conference, and the 
Ministerial Conference took a decision. One delegation says no, I object to the decisio n taken at 
the Ministerial Conference. This is a systemic problem and it is harmful to our work. I believe we 
should draw some lessons from this, we should be aware that we have a mandate, irrespective of 
the interests of one party, we cannot call that dec ision into question, unless we have another 
Ministerial Conference at which Ministers declare that they no longer agree on the decision that 
they took before. In that case, Members do not have to put this on the agenda of the Council any  
more. Otherwise it  should be done automatically. We do not even have to have consultations on it. 
If Members have interests to raise and concerns and do not want to discuss this, well these 
Members do not have to discuss it, but they cannot prevent others from raising point s that they 
wish to discuss within the Council in conformity with the existing mandate. It is important to stress 
this: "in conformity with the existing mandate". The delegation of Benin stresses that this arises 
systematically and it is harmful . We should  not fall into this trap.  
16.15   Brazil  
510.  We appreciate your efforts and we look forward to the consultations. In the meantime, I 
would just like to ask for a clarification. We have heard a proposal to update the background 
notes, and we have not heard any opposition to it. I would therefore like to clarify whether the 
Secretariat will be instructed to update the document.  
16.16   United States of America  
511.  Just to confirm, we do not support updatin g the note at this time, and would need further 
information on what is intended.  
16.17   European Union  
512.  We also see no need to have a standing item on the agenda of the TRIPS Council. However, 
I would like to remind the Counci l that in one of the previous Council meetings, the European 
Union, and I think also Canada, updated the Council on our initiatives in the context of the services 
discussions here at the WTO, where this work is obviously taken forward. I therefore wonder 
whether there is a real need for having this as a standing item. We can obviously continue to 
update the Council if needed. I do not remember the relevant delegations all intervening at that 
time. 
__________