RESTRICTED  WORLD TRADE  
ORGANIZATION  IP/C/M/55 
21 December 2007 
 (07-5760) 
Council for Trade-Related Aspects 
of Intellectual Property Rights  
 
 
 
MINUTES OF MEETING 
 
Held in the Centre William Rappard on 23-24 October 2007  
 
Chairman:  Ambassador Yonov Agah (Nigeria) 
  
 The present document contains the record of the discussion which took place during the 
TRIPS Council meeting held on 23-24 October 2007. 
 
Subjects discussed
         P a g e  n o s .  
 
A. NOTIFICATIONS UNDER PROVISIONS OF THE AGREEMENT .........................................................3  
B. REVIEWS OF NATIONAL IMPLEMENTING LEGISLATION ..............................................................3  
C. TRANSITIONAL REVIEW UNDER SECTION 18 OF THE PROTOCOL OF THE ACCESSION 
OF THE PEOPLE 'S REPUBLIC OF CHINA ........................................................................................4  
D. REVIEW OF THE PROVISIONS OF ARTICLE 27.3( B)....................................................................18  
E. RELATIONSHIP BETWEEN THE TRIPS  AGREEMENT AND THE CONVENTION ON 
BIOLOGICAL DIVERSITY ...........................................................................................................18  
F. PROTECTION OF TRADITIONAL KNOWLEDGE AND FOLKLORE .................................................18  
G. REVIEW UNDER PARAGRAPH 8 OF THE DECISION ON THE IMPLEMENTATION OF 
PARAGRAPH 6 OF THE DOHA DECLARATION ON THE TRIPS  AGREEMENT AND PUBLIC 
HEALTH ............................................................................................................................... ......27  
H. NON-VIOLATION AND SITUATION COMPLAINTS ......................................................................30  
I. REVIEW OF IMPLEMENTATION OF THE TRIPS  AGREEMENT UNDER ARTICLE 71.1..................30  
J. REVIEW OF THE APPLICATION OF THE PROVISIONS OF THE SECTION ON 
GEOGRAPHICAL INDICATIONS UNDER ARTICLE 24.2 ...............................................................30  
K. FIFTH ANNUAL REVIEW UNDER PARAGRAPH 2 OF THE DECISION ON THE  
IMPLEMENTATION OF ARTICLE 66.2  OF THE TRIPS  AGREEMENT ............................................30  
L. TECHNICAL COOPERATION AND CAPACITY -BUILDING ............................................................34  
M. ENFORCEMENT OF INTELLECTUAL PROPERTY RIGHTS (PART III OF THE TRIPS  
AGREEMENT ) – COMMUNICATION FROM JAPAN .......................................................................40  
N. INFORMATION ON RELEVANT DEVELOPMENTS ELSEWHERE IN THE WTO ..............................47  
O. OBSERVER STATUS FOR INTERNATIONAL INTERGOVERNMENTAL ORGANIZATIONS ...............47  
P. ANNUAL REPORT TO THE GENERAL COUNCIL ..........................................................................48  
Q. OTHER BUSINESS ......................................................................................................................49  IP/C/M/55 
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1. In proposing the agenda for adoption, the Chairman
 said that item M on "Enforcement of 
Intellectual Property Rights (Part III of the Agreem ent) – Communication from Japan" had been put 
on the proposed agenda at the written request of th e delegation of Japan, date d 28 September 2007.  
He proposed that the Council adopt the agenda as proposed. 
2. The representative of Brazil  said that the title of the Japanese submission "Enforcement of 
Intellectual Property Rights (Part III of the Ag reement) – Communication from Japan" was not 
adequate as it did not reflect the content of the su bmission.  As the document contained information 
on border measures taken by the Japanese Government , and governments did not themselves enforce 
IPRs, the document did not actually deal with enfor cement.  Intellectual property rights were private 
rights and were enforced by the owners or holders of these rights and not governments.  His 
delegation had a reservation regarding the inclusion of  item M in the agenda and with the practice of 
certain countries to coordinate positions and alternat e in presenting submissions on this issue, in order 
to create an impression of permanence of this item on the agenda.  His delegation did not agree with this practice and maintained that enforcement was not a permanent item on the Council's agenda. 
3. The representative of China
 agreed with Brazil and said that it had always been the 
understanding of China and other developing Member s that enforcement was a temporary item on the 
Council's agenda.  The item did not become a permanent item only because several developed country Members continued to make submissions on the issu e.  It was his delegation's firm belief that 
discussions on enforcement were inconsistent with  the spirit of Articles 1.1 and 41 of the TRIPS 
Agreement, which provided that Members could de termine the appropriate method of implementing 
the provisions of the Agreement within their own legal system and practice.  Article 1.1 was a 
recognition of the relationship between appropriate protection of IPRs and the economic and social 
development objectives of developing countries a nd this broader context for TRIPS should be 
respected by all Members.  
4. He said that there were already many impor tant issues on the Council's agenda, such as the 
relationship between IPR protection and transfer of technology, TRIPS and public health, and the 
relationship between TRIPS and the Convention on Biological Diversity (CBD), as well as the 
protection of traditional knowledge  and folklore.  These were mandated items in need of focused 
discussion and Members had no time to deal with issues outside the existing mandate.  There had already been a considerable degree of duplication with WIPO activities and with initiatives regarding 
border measures within the WCO and Interpol.  Ch ina urged developed country Members to respect 
the opinion of many developing country Members that the heading of enforcement did not fall within 
the mandate of the Council, and to cease further tilting the balance of TRIPS implementation in 
favour of developed countries.  China's respect fo r the proposed agenda at this time was without 
prejudice to its position that there should not be an y substantial position unde r this agenda item.  
5. The representative of Argentina
 said that it was her understanding that the item was not a 
permanent item on the Council's agenda. 
6. The representative of India  said that, while his delegation could accept the agenda as 
proposed in WTO/AIR/3074/Rev.1, he wished to clar ify that this acceptance of the inclusion of 
agenda item M should not be construed as its a cceptance of the inclusion of that item on the 
permanent agenda of the Council or of its willingn ess to engage substantively on issues raised by 
Members under it.  
7. The representative of Japan  said that, while his delegation agreed that each Member could 
determine the appropriate means of implementing TRIPS provisions under Artic le 1.1, he believed 
that the exchange of experiences and information among Members was important and useful in order 
to enrich possible alternatives for Members to reflect.  The past introduction of experiences by the  IP/C/M/55 
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  United States, the European Communities and Switzer land had been constructive and useful, and his 
delegation was looking forward to continuing this educational exercise in this meeting.  While 
recognizing that there were other bodies, his delega tion believed that the TRIPS Council, stipulated 
by the TRIPS Agreement as an authoritative body re garding enforcement, was an appropriate body for 
this discussion.  In response to Brazil's comments, he  said that Part III of the Agreement also included 
border measures which were the subject of the Japanese submission. 
8. The representative of the European Communities  said that item M was a legitimate part of the 
agenda as Article 68 of the TRIPS Agreement specifica lly stated that the Council should review issues 
presented under that agenda item.  
9. The Council took note  of the statements made and adopted  the agenda as proposed. 
A. NOTIFICATIONS UNDER PROVISIONS OF THE AGREEMENT  
10. The Chairman  informed the Council that, since its m eeting in June 2007, it had received a 
number of supplements and updates to earlier notif ications of laws and regulations notified under 
Article 63.2 of the Agreement.  Morocco had notif ied new laws and regulations concerning copyright 
and related rights, industrial property and border enforcement;  Albania had notified its laws on the 
accession to the International Convention for the Pr otection of New Varieties of Plants, the Hague 
Agreement, the Geneva Act of the Hague Agreem ent and the Strasbourg Agreement, as well as an 
amendment to its Industrial Property Law;  Hong Kong, China had notified an amendment to a copyright ordinance;  Tunisia had notified amendm ents to its Trademark Law;  Japan had notified 
consolidated texts of its Trademar k, Designs and Pa tent Acts, including its latest amendments made in 
2005 and 2006, as well as their implementing regulati ons;  and Canada had notified an amendment to 
its Criminal Code that dealt with unauthorized reco rding of a film in a theatre.  These notifications 
were being circulated in the IP/N/1/- series of doc uments.  In addition, Slovenia had provided revised 
responses to the Checklist of Issues on Enforcement.   These responses were available as an advance 
copy of document IP/N/6/SVN/1/Rev.1. 
11. He urged those Members whose initial notifi cations remained incomplete to submit the 
outstanding material without delay, and reminded other Members of their obligation to notify any 
subsequent amendments of their la ws and regulations without delay after their entry into force.  In 
particular, he reminded those Members who had made any changes to their laws and/or regulations to 
implement the decision on TRIPS  and Public Health and who had not yet notified such changes to the 
Council to do so. 
12. Regarding notifications of contact points under Article 69, since the meeting in June, updates 
to contact points notified earlier had been recei ved from Bangladesh and the Kyrgyz Republic. These 
notifications were being circulated in  an addendum to document IP/N/3/Rev.9. 
13. The Council took note
 of the information provided.  
B. REVIEWS OF NATIONAL IMPLEMENTING LEGISLATION  
(i) Follow-up to reviews already undertaken 
14. The Chairman  said that, with regard to the reviews of national implementing legislation that 
had been initiated at the Council's meetings sin ce April 2001, eight reviews still remained on the 
Council's agenda.  These reviews concerned Cuba;  Fiji;  Grenada;  Mauritius;  Saint Kitts and Nevis;  
Saint Vincent and the Grenadines;  Suriname;  and Swaziland.  IP/C/M/55 
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  15. Since the Council's last meeting, Swaziland and Mauritius had provided responses to the 
remaining questions posed to them in their revi ews.  All of the responses from these two Members 
had been circulated in documents IP/Q/SWZ/1 and IP/Q/MUS/1, respectively.  He suggested that the 
regular reviews of the legislation of Swaziland and Mauritius be deleted from the agenda, it being 
understood that any delegation could revert to an y matter stemming from the reviews at any time. 
16. The Council so agreed
. 
17. The Chairman  said that a number of questions had al so been raised with regard to the 
implementing legislation of certa in Members whose reviews had al ready been deleted from the 
Council's agenda on the understanding that any dele gation should feel free to revert to any matter 
stemming from the review at any time.  These Memb ers were Dominica, Gabon, Ghana and Guyana. 
18. He urged the delegations con cerned to provide the outstanding material as soon as possible, 
so as to allow the Council to complete the follow-up to these reviews. 
19. The Council took note  of the information provided and agreed  to revert to the matter at its 
next meeting. 
(ii) Arrangements for the review of national implementing legislation of Viet Nam 
20. The Chairman  recalled that, at its meeting in Februa ry, the Council had agreed that it would 
take up the review of TRIPS implementing legislation of Viet Nam, a newly acceded Member, at its first meeting in 2008.  At its m eeting in June, the Council had set the following target dates for the 
submission of questions and answers to this review:  questions were to have been submitted to Viet 
Nam, with a copy to the Secretariat, by 26 Nove mber 2007 and responses to questions posed within 
that deadline were to be submitted by 7 January 2008.  However, the Council had not yet received 
Viet Nam's notification of its TRIPS implementing la ws and regulation that would serve as a basis for 
the review.  
21. The representative of Viet Nam
 said that the content of the notification had already been 
prepared and that its format was now being finali zed. It would be submitted to the Council within a 
short time. 
22. The Chairman  proposed, in view of the fact that his intention was to suggest that the Council's 
first meeting in 2008 be held on 26-27 February a nd that Viet Nam's initial notification had not yet 
been received, that the Council postpone by thre e weeks the target dates for the submission of 
questions and answers in this review, namely that: 
- questions should be submitted to Viet Nam,  with a copy to the Secretariat, by 
17 December 2007;  and 
- responses to questions posed within the d eadline should be submitted by 4 February 
2008. 
23. The Council took note  of the statement made and agreed  to proceed as proposed by the Chair. 
C. TRANSITIONAL REVIEW UNDER SECTION 18 OF THE PROTOCOL OF THE ACCESSION OF THE 
PEOPLE 'S REPUBLIC OF CHINA  
24. The Chairman  recalled that section 18 of China's Protocol on Accession required the TRIPS 
Council to review the implementation by China of  the TRIPS Agreement each year for eight years 
and report the results of such review promptly to  the General Council.  He further recalled that  IP/C/M/55 
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  section 18 required China to provide relevant info rmation, including information specified in 
Annex 1A, to the TRIPS Council in advance of th e review.  He informed the Council that the 
information submitted by China pursuant to the requirement, dated 18 October 2007, had been 
circulated as document IP/C/W/505. In addition, the Chinese delegation had made available two room 
documents entitled Report on China's Intellectual Property Rights Protection in 2006  and China's 
Action Plan on IPR Protection 2007 .  Questions and comments in connection with the transitional 
review had been submitted by Japan, the United States and the European Communities (documents 
IP/C/W/498, 502 and 503, respectively).  
25. The representative of China  said that it was his delegation's understanding of past practice in 
transitional reviews that Members that had posed questions to China, or had submitted comments, 
would always take the floor first to introduce their submissions.  China would then take the floor to 
give its responses, both to the general comments and to the technical questions, and that this would 
conclude the transitional review.  
26. The representative of the United States  said that the practice of TRMs had varied from 
committee to committee, but that in this Council China had always taken the floor first to introduce its 
submission, had provided its responses to the written questions and Members had intervened 
afterwards.  However, it was his delegation's view that substance was more important than procedure 
in this case and the United States were therefore prep ared to proceed in either order at this time. 
27. The representative of Brazil  said that, although his delegation was not part of the dialogue 
that usually took place under this item, it was nonethel ess a Member of the Counc il.  He believed that 
this was not a tribunal and that procedures in the Counc il had to be fair and equitable.  The obligations 
of China, as his delegation understood them, were  to respond to questions and he was therefore 
interested in hearing the introduction of the questions  first, as this was the natural order of things. 
28. The representative of the European Communities  said that his delegation had submitted seven 
pages of questions, 36 paragraphs, and that to read  them out would be wasting time.  His delegation 
would therefore prefer for China to respond to the questions that had already been put in writing and 
then possibly to additional questions that Member s may raise on the basis of  these responses.  This 
process did not have the character of a tribunal.  His delegation was simply applying the agreement and posing its questions, and expected a proper response. 
29. The representative of China
 said that, as his delegation had pointed out repeatedly in the past, 
it was the logic of the review that China respond or ally to the questions posed.  However, it went 
beyond the commitments of China under Article 18 to provide any written responses or to respond to 
any additional questions posed after its answers, al though China was prepared to listen to any such 
questions.  In keeping with this logic, he asked th e Chair to proceed as in previous TRMs and invite 
Members that had posed questions to first introduce their submissions. 
30. The representative of Japan  said that, while the practice in this Council had been for China to 
first provide its responses and for Members to then make additional further comments, his delegation, 
like others, liked to focus on substance in a practical manner.  
31. The representative of the United States  thanked the Chinese delegation in advance for its 
attention to the questions raised by the United St ates and other Members.  These questions touched on 
many issues of concern.  The United States had wo rked hard to address these and similar concerns 
through meetings of this Council and through constructive bilatera l dialogue and cooperation with 
China.  Unfortunately, it had not been possible to resolve all of these issues through these mechanisms 
alone.   IP/C/M/55 
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  32. His delegation recognized that China had made th e protection of intellectual property rights a 
priority and had taken active steps to improve IP R protection and enforcement.  It continued to 
welcome and appreciate the commitment at the high est levels of China's Government to addressing 
these issues.  However, the United States was con cerned that several aspects of the Chinese legal 
regime actually hindered IPR protection a nd enforcement and raised WTO concerns.   
33. He noted that the WTO Dispute Settlement Body  had established a panel to look into three 
such concerns under the TRIPS Agreement.  These related to China's thresholds for criminal 
copyright and trademark enforcement; customs ru les for destructions of infringing goods; and 
copyright protection for new products that had not yet received Chinese Government approval for 
publication or distribution. 
34. The United States was also concerned about cer tain Chinese measures that affected market 
access for films for theatrical release and audiovis ual home entertainment products such as DVDs and 
video cassettes; for books, periodicals, journals, a nd other publications; and for music.  China's 
barriers to market access for these co pyright-dependent products created legal obstacles to legitimate 
products reaching the Chinese consumer.  That, in turn , made it easier for copyright pirates to operate 
in China's market.  It was his delegations view, th erefore, that the protection of intellectual property 
rights and market access for legitimate copyright-depe ndent products were bound together.  He noted 
that the United States had requested establishmen t of a WTO panel to look into these market access 
concerns as well.  
35. As the questions from Members today reflected, th e concerns that were the subject of the two 
pending dispute settlement proceedings represented onl y a part, albeit an important part, of a much 
larger set of concerns about China's protection and enforcement of intellectual property rights.  It was 
critical that China and its trading partners worked  together to aggressively seek solutions to these 
larger issues. 
36. His delegation saw evidence of unacceptable leve ls of IPR infringement most vividly in the 
numbers of infringing goods seized at US borders.  Mid-year statistics for 2007 showed that China 
was the source of 81 per cent of infringing goods seized at US borders.  China had had a high share of 
seized goods in past years as well, but it was especi ally troubling that the seizure of Chinese goods 
had been increasing, not decreasing, each year si nce China had joined the WTO in 2001.  Exports 
were only part of the problem, however.  US copyri ght industries consistently reported high rates of 
piracy within China, although there had been improve ment in the software sector.  Trade in pirated 
optical discs continued to thrive.  The operation of  large retail and wholesale markets for counterfeit 
and pirated goods had not been dete rred.  Piracy of books and journals was a key concern.  Internet 
piracy was increasing. 
37. Overall, product counterfeiting in China w as widespread, affecting pharmaceuticals, 
electronics, batteries, auto parts, industrial equipment, toys, and many other products.  Many of these counterfeit products, moreover, posed a direct threat to the health and safety of consumers in China, 
the United States and elsewhere around the world.  The underlying causes for these problems, and the 
possible solutions, were too numerous to describe he re.  The US Government had set out its views on 
those issues in detail in various reports availabl e on the website of the Office of the US Trade 
Representative.   
38. Last year at the transitional review before th is Council, his delegation had noted that the 
United States looked forward to continuing to engage  bilaterally with China on a wide range of IPR 
issues.  At the same time, it had pointed out that  the multilateral WTO forum, and the tools provided 
under the WTO agreements, including reviews like th is one, the provision for transparency requests 
under Article 63.3 of the TRIPS Agreement, and th e availability of WTO dispute settlement, were 
equally indispensable to a healthy international tr ade environment.  His delegation continued to be  IP/C/M/55 
 Page 7 
 
 
  disappointed at China's apparent reluctance to take  full advantage of the capacity of these tools to 
clarify issues and aid in the exploration of possible solutions.   
39. The larger issue before China and its trading partners was how soluti ons would be found and 
mutual understandings be reached regarding the various IPR issues discussed today.  His delegation had observed that China seemed reluct ant to use the transitional reviews before this Council to their 
full advantage.  It had also seen that China was reluctant to respond substantively to requests under 
Article 63.3 of the TRIPS Agreement.  Since the f iling of the two WTO disputes against China, it had 
also noted a reluctance on China's part to engage in bilateral dialogue.   
40. The United States continued to believe that deeper multilateral and bilateral dialogue and 
cooperation was the path to progress.  The United Stat es would continue to put serious efforts into its 
joint work with China on innovation policy, intell ectual property protection strategies, and the range 
of other important matters in its bilateral ec onomic relationship through the US-China Strategic 
Economic Dialogue, the Joint Commission on Commerce and Trade and other bila teral engagements.  
He hoped that China would fully embrace all of those opportunities and his delegation viewed the 
current WTO disputes as evidence of the need for mo re, not less, bilateral and multilateral cooperation 
on China's IPR issues. 
41. Moving ahead with that work would of c ourse require a willingness to cooperate on the 
Chinese side.  The United States had seen evidence of  that in some areas, such as recent joint US – 
Chinese law enforcement actions and a memorandum of cooperation in the sphere of IPR border 
enforcement.  His delegation hoped to see deeper co operation in other areas as well, with a view to 
making progress on the important issues that remain  to be addressed with regard to China's IPR 
enforcement regime. 
42. The representative of the Japan
 said that his delegation had raised questions regarding the 
future improvement of criminal enforcement and other issues at all TRMs from 2002-2006.  With 
regard to further improvement of criminal enforcemen t, he noted that a new judicial interpretation in 
April 2007 had abolished the differenc es between criminal threshold fo r units and that for individuals, 
and had substantially lowered the threshold for units. Japan appreciat ed that the Chinese Government 
had recognized the importance of the protection of IPRs and had made efforts to improve 
enforcement.  On the other hand, despite such  efforts, a survey conducted by the Japanese 
Government in March and April 2007 showed that  IPR enforcement in China had still room for 
improvement.  While there had been some strengthe ning measures in IPR enforcement, such as an 
increase in the amount of confiscated illegally acquired income, which he understood was a relatively 
severe penalty, there continued to be some deficiencies in IPR enforc ement, such as repeat offences, 
more sophisticated modus operandi  of counterfeiters, and insufficient enforcement, especially in local 
areas.  Therefore, his delegation had to conclude that IPR infringement in China continued to be 
severe for the Japanese industry.  A deterrent ef fect through the strengthening of administrative 
punishment and criminal prosecution and through  the enhancement of measures against the 
sophisticated modus operandi  of counterfeiters and repeat offe nders was essential to improve the 
situation.  Japan was looking forward to China enhancing IPR protection and taking further steps to provide effective enforcement against any act of infringement of IPRs in China.  Regarding the 
specific questions Japan had posed to China, in th e interest of time and efficiency, he referred 
Members to document IP/C/W/498 that Japan had submitted. 
43. The representative of the European Communities
 said that his delegation noted with 
satisfaction certain progress that had been made  on IPRs and certain ongoing positive initiatives that 
had been taken by China to tackle remaining problem s.  However, like other delegations he remained 
concerned by the very high level of counterfeiting and piracy in China. According to EC customs 
statistics of 2006, China remained the main source of counterfeited and pi rated goods, with over 86 
per cent of counterfeit goods seized at the EU border coming from China.  His delegation remained IP/C/M/55 
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  particularly worried by the lack of criminal pro secution.  The sanctions against IPR infringement were 
insufficient and not a deterrent. Civil and administ rative procedures against counterfeiting and piracy 
remained expensive and time-consuming.  The European Communities therefore urged China to 
actively pursue its efforts towards an effec tive IP protection and enforcement system.  
44. In this respect, he recalled that the Eu ropean Communities and China had established a 
structured dialogue on intellectual property and had set up, in that framework, a joint IP Working 
Group, the fourth session of which had met in Beiji ng on 27-28 September.  He hoped that such a 
cooperative approach with China on IPR issues woul d lead to concrete and tangible results, as these 
were much needed.  Finally, he said that he looked  forward to a comprehensive reply to the questions 
posed in writing in document IP/C/W/503 of 11 Octo ber 2007 and hoped that what appeared to him as 
lack of cooperation of China in this TRM would not ha ve to be interpreted as a lack of respect for the 
questions asked by Members. 
45. The representative of China
 said that his delegation welcomed  this opportunity to elaborate on 
the status of China's implementation of the TRI PS Agreement and other relevant commitments, and 
on its intensified IPR enforcement efforts since the last review through more effective administrative 
sanctions, as well as to brief the Council on China' s efforts in deepening its international IPR 
cooperation with other Members in recent years.  Ever since adopting the reform and opening up 
policy, particularly in recent years, China had made impressive progress on IPR protection and had 
recently incorporated it into its national strategy.  Furthermore, the Chinese President Mr. HU Jintao 
had reiterated in his report to the 17th CPC C ongress the Party's determination to "improve 
indigenous innovation, build an innovative count ry… and implement IPR strategies", which would 
serve as a long-term goal for China to pursue firmly in its IPR protection task. 
46. Regarding the legal infrastructure perspective, in  a short period of merely 30 years, China had 
put in place a legal and regulatory IPR framework in corporating laws, regula tions, department rules 
and judicial interpretations.  In order to respond to its own developm ent needs and in order to advance 
its national drive to build an innovative country, Ch ina was constantly studying and formulating new 
IPR-related laws, regulations and rules and ma king improvements of its IPR protection system. 
47. In 2006, the State Council had promulgated the Regulations on the Protection of the Right of 
Communication through Information Network .  The Supreme People's Court (SPC) had issued the 
Decision (No. 2) on Amending the Supreme People' s Court's Interpretation on Certain Issues 
Concerning Application of Laws in Dealing W ith Cases Concerning Computer Network Copyright 
Disputes . The Supreme People's Procuratorate (SPP), the Ministry of Public Security, National 
Copyright Office, State Administration for Industry and Commerce (SAIC) and General 
Administration of Customs had issued four regulations on accelerating civil-to-criminal case transfer.  The Ministry of Commerce (MOFCOM) and others  had introduced specific rules on IPR protection 
related to trade fairs and exhibitions.  The State Intellectual Property Office (SIPO) had issued the 
Guide on Patent Re-examination  and Measures for the Reduction or Postponement of the Payment of 
Patent Fees.   The SPC and SPP had clarified the criteri a for convictions relating to IPR crimes 
involving piracy and illicit sales of audiovisual products.  
48. On 1 April, 2007, the National Working Group for IPR Protection had published the 2007 
Action Plan on IPR Protection , which detailed 276 specific measures in ten areas including legislation 
and enforcement.  Under this Action Plan , China would formulate and revise 14 laws, regulations, 
rules and administrative measures on trademark, co pyright, patent and customs protection as well as 
seven judicial interpretations and guidelines.  In  the first half of 2007, the SPC had issued the 
Opinions on Fully Intensifying IPR Trials to Prov ide Judicial Assurances for Building an Innovative 
Country , the Interpretations on the Application of Laws  in Civil Cases Involving Unfair Competition,  
and the  Rules on the Application of Laws in Disputes Involving Infringement of Right to New Plant 
Varieties . The SPC and SPP had jointly circulated the  Interpretations on Issues Relating to the  IP/C/M/55 
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  Application of Laws in IPR Criminal Cases II .  The SAIC had promulgated the Measures for the 
Administration of Special Signs of Geographical Indication Products .  The formulation and updating 
of the Trademark Law , Law against Unfair Competition , Patent Law , and Patent Commissioning 
Regulations  was also progressing on schedule. 
49. On the IPR enforcement side, w ithin the framework of international conventions and treaties 
such as the TRIPS Agreement and taking into consid eration its national situation, China had come up 
with an IPR protection model featuring a parallel and concurrent system of administrative and judicial 
protection as well as an enforcement structure that effectively integrated administrative approaches 
with criminal justice, ensuring adequate protecti on for rightholders and ultimate fulfillment of China's 
international IPR obligations.  In 2006, China had set up IPR Service Centers in 50 large and medium-
sized Chinese cities and had launched the special "12312" service hotlines to facilitate IPR complaints 
and crime reporting.   IPR enforcement agencies had carri ed out seven dedicated crackdown 
campaigns including Operation Sunshine, Opera tion Blue Sky, Mountain Eagle Two and the 
Anti-Piracy 100 Days Campaign, which had resulted in notable achievements.  
50. Regarding the series of figures detailing China' s efforts on enforcement, he referred Members 
to the information his delegation had provided u nder Annex I of Article 18 of China's Accession 
Protocol.  In response to some Members' interven tions, he emphasized that in 2006, 2,277 criminal 
IPR cases had been settled with a verdict of legal e ffect regarding 3,508 persons, 3,507 of whom had 
been convicted.  This clearly demonstrated China' s efforts to intensify criminal enforcement.  
51. Some Members had also quoted increased numbers  of seized pirated produc ts at their borders. 
Also in China there had been an increase in the number of seizures of pirated products.  From his 
perspective, these figures only demonstrated that China's efforts on IPR enforcement were more 
intensified, not less. 
52. Regarding international IPR cooperation , on 29 December 2006, China had announced its 
decision to join the WIPO Copyright Treaty and WIPO Performances and Phonograms Treaty .  On 
9 June 2007, these two treaties had o fficially taken effect in China.  At present, China was also 
approaching its final procedures for ratifying the Protocol Amending the TRIPS Agreement.  
53.  China had been actively involved in the reform  of international IPR systems and negotiations 
on global IPR issues in international forums su ch as the WTO, WIPO, UPOV, APEC and ASEM, 
while increasing bilateral IPR collaborations with  other Members.  China-US, China-EU, China-
Russia and China-Switzerland IPR working groups had been set up to meet regularly.  IPR exchange 
mechanisms had also been established and consol idated between China and other countries and 
regions, such as Japan, Korea and ASEAN.  In 2007, the first sessions of the China-Russia IPR 
Working Group and the China-Switzerland IPR Working Group, as well as the fourth session of the China-EU IPR Working Group ha d successfully been convened, cementing IPR exchanges and 
cooperation.  China had also held a China-US En forcement Cooperation Joint Liaison Group meeting, 
had signed an MOU on Intensifying IPR Enforcem ent Cooperation between the Chinese and US 
customs services, and had hosted the WIPO Asia-Pacific Symposium on Performers' Rights in the 
Digital Network Environment, as well as an inte rnational symposium on ge ographical indications.  
54. In conclusion, despite being a developing country confronted with many difficulties, China 
had never slowed down its pace of IPR protection.  It should be underlined that IPR protection was a 
global issue and not a country-specific one.  As  developed and developing Members shared the 
daunting challenge of improving IPR protection, cooperation should serve as the main vehicle for 
international endeavor in the field of IPR protection.   China was determined to further improve its IPR 
protection and enforcement system through unremitti ng efforts and to collaborate extensively with 
other WTO Members on this issue.  IP/C/M/55 
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  55. Responding to the technical questions submitted to  China, another representative of China  
said that around 20 of these questions were closely related to the WTO dispute case DS362 or the case on market access of goods and that, therefore, her de legation did not deem it appropriate to provide 
responses to them.  For the sake of clarity and effici ency the other questions had been categorized into 
11 groups. 
56. Responding to question in the first category on General Issues , she said that, regarding 
transparency, Chinese IP legislation was quite open and transparent.  It had been provided that 
between the release and implementation of laws and administrative regulations at least one month had 
to be allowed for public comments.  Before submittin g drafts of laws and regulations for deliberation 
and review, they had to be made public for co mments from all, including experts, scholars and 
practitioners in IP-related fields.  In addition, China also paid great  attention to opinions from IP-
related international organizations , foreign enterprises and individua ls. All suggestions were taken 
seriously and submitted for detailed analysis and classification.  The feedback of some crucial suggestions would be delivered to  the organization or individual th at had made the suggestions for 
further comments. 
57. For example, in 2004 and 2005, the Supreme People's Court had made available on the 
Internet the five judicial interpretations, respec tively on technical contracts, unfair competition, new 
plant varieties, right conflicts and legal app lication of MTV copyright, for public comments. 
Revisions had been made according to comments from the public.  In China's IPR legislation, it was rarely the case that more than one agency was involved in drafting legislation at the same time. 
However, if such a case did occur, according to  the Ordinance Concerning the Procedures for the 
Formulation of Administrative Regulations and the Regulations on Procedures of the Rules  
Formulation, all the agencies involved were requi red to solicit public opinions in the process of 
drafting administrative rules and regulations.  In addition, if the draft administrative rules and 
regulations related to responsibilities of more than  one agency, the drafting agency was required to 
fully consult with all the other agencies involved to ensure coordination an d avoid inconsistencies 
among different IP-related agencies. 
58. In the process of the third amendment to the Patent Law, opinions had been solicited widely 
from related government agencies, organizations, en terprises and citizens, and a great number of 
suggestions for amendments were collected.  In a ddition, the Legislative Affairs Office of the State 
Council had held an international seminar on th e Patent Law Amendment on 10-11 October 2007.  
Experts, scholars, representatives from Chinese ente rprises, WIPO and well-known companies in the 
US, EC, Japan, Brazil, India, etc. had held comp rehensive and in-depth discussions on the amendment 
of the draft. 
59. For the amendment to the Trademark Law, th e State Trademark Office had begun to solicit 
social comments by sending letters and holding seminars since April 2006. By the end of 2006, 48 correspondents with 1,012 pieces of suggestions  from 47 organizations, groups and individuals, 
including foreign organizations such as the USPTO , JPO, INTA and AIPLA had been received.  In 
late September 2007, a new round of solicitations fo r opinions from domestic and foreign institutions 
and experts was launched. 
60. Regarding IP protection and enforcement, Chin a had taken many effective measures in recent 
years to push forward IPR protection in a comp rehensive manner and had achieved good results. 
China had further improved its legislation, greatly enhanced its efforts to fight against infringement, 
increased the number of criminal prosecutions and penalties, and had strengt hened public awareness 
for IPR protection.  The Chinese Government had b een exploring ways to establish an effective IPR 
protection system.  However, as China was still  a developing country, it was unrealistic and 
unreasonable to require China to reach the standa rds of developed countries like the European 
Communities within a short period of time.  China hoped that the European Communities could  IP/C/M/55 
 Page 11 
 
 
  continue to support China in its IPR protection e ndeavors, improve mutual understanding and trust, 
and reduce complaints and criticism. 
61. Responding to questions in the second category on Legislation and Judicial 
Interpretations , she first turned to the revised draft of Ch ina's patent law.  As the revision of the 
Patent Law was still underway, her delegation was unable to predict the final results and could 
therefore not provide further clarification of the provisions at present.  China's Anti-Monopoly Law  
would come into force on 1 August 2008.  Curren tly, there was no explicit definition of "abuse of 
IPR" in Article 55. 
62. On conflicts between trademarks and trade names, the existing La w to Counter Unfair 
Competition was still under review and in the proc ess of being amended.  In November 2005, the 
Supreme People's court had formulated the draft text  of the Interpretations on Applicable Legal Issues 
Concerning the Ruling of Civil Cases Involving IP R Conflicts, and had so licited public comments 
through the Internet in December 2005.  The Judici al Interpretation draft covered relevant issues on 
conflicts between trademarks and trade names. He r delegation was currently unable to provide any 
details. 
63. On the issue of royalty criteria for broadcasting and television organizations, according to the 
provisions of Article 43 of the Copyright Law,  the Chinese State Council was working on Measures 
on the Remuneration for Using Audio Products by Radio and Television, a nd related legislation 
procedures were now underway. 
64. According to Article 43 of the Regulations on Copyright Collective Management, when a 
user was able to provide the details of use but refused to do so, or practiced fraud in providing such 
information, the copyright administration departments of the State Council were required to 
rectification.  The copyright collective manage ment organization could terminate the Licensing 
Contract. 
65. Regarding the import and export of technology , according to the Regulations on Technology 
Import and Export Administration, the administration of technology imports was divided into 
categories of technology prohibited from import, tech nology restricted from import and technology of 
free import.  The technologies of free import were managed through contract registration without real 
examination of the contents of the contract.  On the other hand, the competent authorities still needed 
to instruct the enterprises to pr ovide the authentic basic informa tion of the contracts. In actual 
practice, some of the provincial and municipal auth orities could suggest revisions of terms that were 
non-compliant with China's existing laws and regula tions in the technology import contracts of the 
enterprises, but the final say still rested with th e enterprises.  The Government had never made 
compulsory requirements on items like royalty rates. 
66. Article 355 of the Contract Law explicitly provi ded that "Where the laws and administrative 
rules and regulations stipulate otherwise on the t echnology import and export contracts, or patent 
contracts or contracts on application for patents,  such provisions shall prevail".  The Regulation 
contained special provisions for the infringement li ability in the technology import contract in the 
form of administrative regulation, without contradict ing the Contract Law.  Article 24 did not conflict 
with Article 28.2 of the TRIPS Agreement. Accordi ng to this Article, "The patentee has the right to 
transfer or transfer through inheritance the patent and establish license contracts". 
67. Article 25 of the Regulation was appropriate a nd currently China had no plan to revise it.  
This Article focused on the technology itself, i.e. under the agreed conditions the technology could 
achieve the agreed technological objective.  If the mish andling of or other failures to meet the agreed 
conditions by the Chinese side led to a failure of  achieving the agreed technological objective, the 
responsibility should be borne by the erring party.  Since this Article was mandatory, whether the IP/C/M/55 
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  concerned parties made written commitments or not  to implement the above provision in their 
agreement, its effect could not be affected and the Chinese Government would not reject the 
agreement for such reason. 
68. Responding to questions in the third category concerning Patents , she said that China's patent 
system had adopted the first-to-file principle, granti ng the patent to the first applicant.  If parties had 
disputes over the rights and interests concerning the ownership of the invention and creation, they 
could appeal to the People's Court according to the relevant provisions of the Patent Law.  The 
revision of the Patent Law was under way.  As re garded concrete amendm ents to the provisions, 
China was soliciting opinions on various aspects, and w as therefore unable to predict the final results. 
Currently, China was not considering changing th e provisions on the scope of patentability of 
software inventions. 
69. According to Article 12 of China's Patent La w, any entity or individual exploiting someone 
else's patent had to conclude a written licence cont ract with the patentee for exploitation and pay a fee 
for the exploitation of the patent.  Therefore, if  the licensee did not pay the fee according to the 
contract, the patentee could appeal to the People's Court. 
70. Regarding the two questions that had been  posed on the protection of confidential 
information, she said that these questions were quite  general, without pointing to a specific law or 
regulation, and that therefore China w as unable to respond to these questions. 
71. Responding to questions in the fourth category, concerning the Protection of Test Data for 
Pharmaceutical Products , she said that medicines should be registered in accordance with the 
Provisions for Drug Registration and that undisclo sed information on clinical trials should be 
protected in line with the above-mentioned provisio ns, excluding information that had already been 
disclosed.  Under the Measures of the Implementa tion of the Pharmaceutical Administration Law, 
China was committed to the protection of undisclosed information rather than to data protection and 
monopoly.  Protection of undisclosed information took effect automatically and no form filing, 
authorization or record was needed.  Its effec tiveness depended on how people who had access to the 
information kept that information undisclosed.  Th erefore, there was no need to provide monopolistic 
data as was required under the relevant laws and regulations of some other WTO Members. 
72. In accordance with the Administrative Licen se Law and the Pharmaceutical Administration 
Law, the State Food and Drug Administration s hould base its approval on the pharmaceutical and 
clinical materials obtained by the applicants them selves, rather than on reference materials already 
disclosed or materials provided by other applicants.  For medicines, whether domestically produced or 
imported, the exact same material requirements a nd review and examination procedures were applied 
and these did not constitute any discrimination at all.  
73. According to the Provisions for Drug Registration, the State Food and Drug Administration 
should make decisions on review and approval based on the material submitted by applicants.  In light 
of the universally applied Bolar exception, patent  disputes arising during the review and approval 
procedures for drug registration were impossi ble to constitute a patent infringement. 
74. Questions in the fifth category concerned Trademarks and Geographical Indications .  On 
trademarks, she said that "famous brands", "re nowned brands" and "export brands" were supporting 
measures initiated to lead and encourage enterpri ses to create famous bra nd products, to enhance 
product quality and managerial level and raise the overall quality level and competitiveness of China. 
In identifying well-known trademarks, the State Trademark Office and the Trademark Review and 
Adjudication Board would treat domestic and fo reign trademark holders equally, without any 
discrimination or preference to Chinese trademarks.  China's Trademark Law and Recognition and Protection of Well-Known Trademarks Provisions (2 003) explicitly provided for objective standards  IP/C/M/55 
 Page 13 
 
 
  for the recognition procedures of well-known trademar ks.  Detailed provisions were available on the 
website of the State Administration for Industr y and Commerce (SAIC) at http://www.ctmo.gov.cn .  
In regard to the question of malicious applica tion for foreign well-known trademarks, she referred 
Members to Article14 of the Trademark Law and Ar ticles 3 and 10 of the Recognition and Protection 
of Well-Known Trademarks Provisions.  The renown gained through publicity of the media such as 
the Internet was also one of the elements for c onsideration by the SAIC when recognizing well-known 
trademarks. 
75. Article 31 of Trademark Law protected the "prior  right" of trademarks with certain renown, 
yet short of the well-known trademark standard.  According to the principles of territoriality of 
intellectual property rights, the Trademark Examina tion and Trial Standards restricted trademarks 
subject to "prior use" to  those used in China. 
76. For actions such as malicious application for or exploitation of well-known trademarks or 
influential trademarks already used, but not yet regi stered, the SAIC would take the following actions 
in the stages of examination, opposition and review:  (1) In the stage of exam ination, except for some 
well-known trademarks with high popularity, the SAIC  generally did not take the initiative to render 
protection and tended to settle the problem in the sub sequent opposition and review stages.  (2) In the 
stage of opposition, the right holder could file an  opposition to the Trademark Office of SAIC if he 
thought the trademark which had passed the prelimin ary examination violated Article 13 or 31 of the 
Trademark Law.  The trademark would not be ap proved for registration if the Trademark Office 
confirmed the opposition.  (3) In the stage of review , disputes could be filed if the right holder thought 
the registered trademark violated Articles 13 and 31 of the Trademark Law.  The Trademark Review 
and Adjudication Board would cancel the registered trademark if the dispute was confirmed. 
77. With regard to similar goods and services, the State Trade Mark Office would look at the 
Similar Goods and Services Diffe rentiation Table compiled by the State Trademark Office based upon 
the International Classification of Goods and Services for the Purposes of the Registration of Marks.  
For example, gloves belonged to Similar Group 25 10 of Category 25 and scarf to the Similar Group 
2511 of Category 25.  According to the Table, goods of these two Similar Groups were not judged as 
similar.  Therefore, when applying for a trademark for "gloves", where there were identical or similar 
registered trademarks or prior applications for " scarves" by someone else, such an application would 
be passed for preliminary review. 
78. With regard to GIs, according to related regula tions, a GI could be protected as a trademark, 
while other forms of protection were not excluded.  In 2001, China had acceded to the WTO.  In its 
Accession Protocol, China had promised to fully comply with the geographical indication-related 
clauses in the TRIPS Agreement and to provi de effective legal protection for GIs.  
79. Currently, in the practice there were no conflicting GIs at STMO and AQSIQ because they 
had been registered by different registrants.  Ar ticle 6 of the Provisions on the Protection of GI 
Products specified that the protection of GI products followed the principle of voluntary application, 
transparent acceptance, handling and approval.  According to the Trademark Law, Trademark Law 
Implementing Regulations and Procedures for the Registration and Administration of Collective 
Marks and Certification Marks, GIs could be registered as collective marks or certification marks to gain legal protection in China.  Registered geogr aphical indications could enjoy sound and effective 
protection and their owners had no need to register with any other agencies. 
80. When applying for registration of trademarks  in China, according to Article 17 of the 
Trademark Law, foreigners and foreign enterprises should proceed in accordance  with the agreements 
signed between their home countries and China or in ternational treaties of which both are members, 
or the reciprocity principle.  Besides, pursuant to  Article 6 of the Procedures for the Registration and 
Administration of Collective Marks and Certification Marks, when registering their GIs as collective IP/C/M/55 
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  marks or certification marks, foreigners or fo reign enterprises should submit proof of the legal 
protection of the GI in their home countries for them as the right holders.  For example, the orange produced in Florida of the United States had successf ully been approved for registration in China.  
81. All the circulars and documents concerning the acceptance and approval of GI products 
protection, as well as the use of specialized indica tions had been made public  and could be found on 
the website of AQSIQ at http://www.aqsiq.gov.cn
. 
82. Regarding counterfeiting at retail and wholesale markets, she said that the three major retail 
markets in Beijing had taken effective measures in IPR protection after signing MOUs with famous 
European brands holders, and had honored their commitments.  However, in the process of implementing the MOUs, IPR agents and landlords  had had some frictions due to different 
understandings of some articles in the contracts,  which was quite normal.  The Chinese government 
authorities had made great efforts to mediate betwee n the parties to settle th e frictions, and to push 
forward the perfection and implementation of the MOUs. At present, the market organizers held a positive and cooperative attitude.  
83. On the issue of including IPR protection into  the lease contracts between the landlords and 
vendors, the Shanghai Industrial and Commercial Administration had amended the Demonstration 
Text on Shanghai Merchandise Tradin g Market Operation Contract th is year, prescribing obligations 
for landlords and vendors on trademark protection.  Now landlords in many key garment and small 
merchandise markets had adopted the new contract model.  To prepare for the 2008 Olympics, the 
Beijing Municipal Government had held a meeti ng in which it had decided to strengthen the 
communication with foreign right holders, improve the precautionary and remedy systems in 
wholesale and retail markets and the 12312 Complaini ng and Appeal Services Centre Mechanism, 
and phase out counterfeiting in wholesale and retail markets. 
84. On the issue of the Trademark Office backl og, due to year-on-year increase in China's 
trademark applications, in 2006 there had been as many as 766,000 cases.  Currently the time span of 
the examination was about 30 months, which was longer than last year.  In view of the longer time 
span of trademark examination, SAIC had further recruited trademark examiners, strengthened 
management and enhanced the ope ration guarantee for the automated system.  All staff worked 
diligently in every step of the trademark application procedure a nd tried hard to enhance working 
efficiency.  In 2006, altogether 313,000 trademark registration applications had been examined and 
the annual examination quantity of every examiner had been much higher than in other countries. 
85. Responding to questions in the sixth category, concerning Copyright , she said that in 2006, 
the Chinese Copyright Authority had investigated and confiscated pirated overseas textbooks failing 
to pass content review in six universities of Beijing, Shanghai, Guangzhou and Wuhan.  The 
Association of American Publishers and the Associ ation of British Publishers had both expressed their 
gratitude with regard to such acti ons taken by the Chinese Government. 
86. Responding to questions in the seventh category, regarding General Enforcement , she said 
that SAIC and China Customs had regularly published statistical data on infringement cases.  As for 
the concrete information, i.e. the analytical statistic s of all cases that had been requested by the United 
States, her delegation was unable to provide them as this request went comple tely beyond the scope of 
the TRIPS Agreement. 
87. Measures relating to notarization and legalizati on of Powers of Attorney and evidence had 
been adopted and were consistent with Article 242 under the Civil Procedure Law of China.  In 
accordance with Article 49 of the TRIPS Agreement, relevant admi nistrative procedures should adopt 
the same principles as for civil procedures.  Regarding the problem of possibly time-consuming procedures in practice, a call for more coopera tion and communication between China and foreign  IP/C/M/55 
 Page 15 
 
 
  countries (including foreign IPR holders and relate d enforcement institutions) was becoming more 
and more urgent, as well as mutual comprehension on systems of law, enforcement systems and document requirements in order to reduce unn ecessary delays caused by misunderstandings of 
respective systems of law. 
88. As for the implementation of interim injunctio ns, the People's Court exercised them in an 
active and prudential manner pursuant to laws.  He r delegation was wondering about the source of the 
quote that "less than 2% of all interim injunction a pplications actually submitted to the courts are 
granted". 
89. It had always been the principle and goal of  the Chinese Government and the public security 
bodies to constantly strengthen cooperation with IP R holders in conducting IPR protection.  At the 
same time, it was also the foundatio n of effectively cracking down on IPR crimes.  Once an appeal of 
the IPR holder was accepted and heard, the right holde r participated in the relevant legal procedure.  
The private-prosecuting case in which the right holder a ppealed to courts directly was a major form of 
the right holder's direct participation. 
90. According to the Criminal Law of the PRC, th e Regulation on the Transferring of Suspected 
Crime Cases at Administrative Agencies, and the Ad ministrative Punishment Law, the administrative 
law enforcement agencies should report or transfer th e cases to the public security  agencies if criminal 
responsibilities were involved.  If administrative punis hments such as fines had already been imposed 
before the transfer, such penalties would be cons idered by the People's Court under the law when 
making determinations.  It was necessary to poi nt out that, according to the Regulation on the 
Transferring of Suspected Crime Cases at Admi nistrative Agencies, the cases transferred were 
"suspected" rather than "affirmed" cases.  Cases that  could not be identified as criminal cases by the 
public security agencies would be transferred to th e relevant administrative agencies for settlement. 
91. Responding to questions in the eighth category, concerning Administrative Enforcement , 
she said that it was widely recognized that th e Chinese Government had spared no efforts in 
strengthening administrative enforcement of IPR pr otection.  According to Article 53 of Trademark 
Law, when handling trademark infringement cases,  the administrative authorities for commerce and 
industry could confiscate and destroy the infringing pr oducts once the violations had been confirmed.  
If the confiscated products were of value, whic h was detachable from the infringing trademark, 
according to Article 53 of Administrative Punishme nt Law, they could  be openly auctioned or 
disposed according to the relevant provisions of th e country.  The proceeds from the auctioning of the 
confiscated illegal property should be handed to the state treasury. 
92. IP infringement crimes are effectively cracked down upon.  However, a few criminals still 
attempted to evade legal punishment by acting in a more sly and concealed manner.  In this context, 
Chinese public security agencies had formulated strate gies of both "targeted fighting" with a focus on 
chief offenders who were responsible for the infri nging activities and "whole-chain fighting" aimed at 
destroying every link in the criminal network from pr oduction, storage, transportation, sales to export.  
As for the question of "what are the necessary conditions to punish manufacturers, distributors or 
would-be distributors concurrently?", she said that  criminals would be held accountable as long as it 
could be proven that those criminals had common criminal intentions, conducted criminal activities 
jointly and the actions cons tituted criminal offences. 
93. Responding to questions in the ninth category, concerning Civil Enforcement , she said that 
according to the Several Provisions of the Suprem e People's Court on the Evidence for Civil Actions, 
the formality and source of evidence should be in li ne with the laws.  Evid ence collected by private 
investigators and used in civil litigations shoul d be subject to the Civil Procedure Law.  IP/C/M/55 
Page 16  
 
  94. Responding to questions in the ninth category, concerning Customs/Border Enforcement , 
she said that, to reduce the outbound flow of count erfeit goods across China's borders, China Customs 
had improved enforcement means.  Great importance had been attached to the close combination of 
inspections and examinations on custom declarat ion data, declaration bills of documents, and 
examination work on the spot.  Some advanced ex amining techniques had been widely adopted by 
China Customs, such as X-ray mach ines, which effectively improved their capability and efficiency to 
inspect and confiscate infringing goods.  Special enforcement actions aiming at cracking down on illegal export of infringing goods in the form of frei ght, post or express delivery had been initiated.  
For example, a special IPR protection action named "Dragon Boat Action" was being carried out from 
1 October 2007 to 31 March 2008.  China Customs had also strengthened in ternational enforcement 
cooperation with customs of other countri es with the purpose of protecting IPRs. 
95. Responding to questions in the ninth category, concerning IPR Infringement through the 
Internet , she said that China severely cracked down on co pyright piracy on the Internet pursuant to 
international treaties and domestic laws and regulations.  In 2006, the State Council had promulgated 
the Regulations on the Protection of the Right of Communication through Information Network.  The 
SPC had issued Decision (No. 2)  on Amending the Supreme People's Court's Interpretation on Certain 
Issues Concerning Application of Laws in D ealing With Cases Concerning Computer Network 
Copyright Disputes.  On 29 December 2006, Chin a had announced its decision to join the WIPO 
Copyright Treaty and WIPO Performances and Phonograms Treaty.  On 9 June 2007, these two treaties had officially taken effect in China.  Ho wever, she pointed out that  the issue of copyright 
piracy on the Internet went beyond the scope of the TRIPS Agreement and that it was therefore not 
appropriate to discuss this issue in the frame work of the transitional review of China. 
96. The representative of the United States
 thanked China for its detailed responses to the 
questions.  While it was difficult to follow the r esponses as particular countries' questions had not 
been identified, it was his delegation's impression that the following questions posed by the United 
States had not been responded to or further clarific ation was necessary.  Regarding US question 5 on 
the legislative priorities in China 2007 Action Strategy, his delegation had not heard a response on 
whether China was considering any further new IPR measures that were not mentioned in that Action 
Strategy.  Regarding enforcement issues, particular ly those relating to criminal enforcement, the 
United States had asked in questions 6 and 7 wh ether there were Uniform Guidelines for Public 
Security Bureaus with regard to case initiation standa rds for criminal IP investigations and particular 
pilot projects in effect.  US question 9 had been about whether there were any legislative proposals 
that would enhance the power of Chinese judges to en force judicial orders.  In questions 12 and 13 the 
United States had requested particul ar data about cases in China.  In response to China's comment that 
these requests were beyond the scope of the TRI PS Agreement and the transitional review, he said 
that in his view this type of mechanism could be a useful tool and exercise in transparency and, for it 
to make progress, it should be interpreted broadly ra ther than narrowly. Regarding the questions on 
copyright piracy on the Internet, his delegation ha d the same concern. Regardless of competing views 
of this issue's relevance under the TRIPS Agreemen t, China should have answered US questions 18, 
19, 20 and 21 on copyright piracy on the Internet in the interest of transparency.  Regarding question 22, while appreciating China's responses on past efforts to combat textbook piracy on 
university campuses, there had been no answer to the additional question whether any new 
enforcement efforts were being planned.  Lastly, re garding question 36 regarding data exclusivity, the 
United States had asked about the total number of da ta exclusivity grants provided by SFDA but had 
not received a response.  His delegation was looking forward to further clarifications and responses 
from China in this regard. 
97. The representative of Japan
 thanked China for its detailed responses.  As it had not been 
possible to identify which response was directed at  which question, his delegation would pose further 
questions and make further comments after havi ng examined China's responses in detail.  He  IP/C/M/55 
 Page 17 
 
 
  reiterated his delegation's hope for China to enhance IPR protection and to take further steps to 
provide effective enforcement against any act of infringement of intellectual property in China. 
98. The representative of the European Communities  said that, although his delegation was 
grateful for China's detailed answers, he had not r eceived answers to its questions 8, 9 and 10 relating 
to the third patent law revision in document IP/C/W/ 503.  He disagreed with China's comment that the 
situation regarding the struggle against counterfeiti ng in the Silk Market in Beijing was improving.  
On the contrary, he himself had had occasion to witness the rampant and widespread counterfeiting 
there in person.  This was unfortunate, as the European Communities had tried to improve the 
situation in cooperation with Chinese authorities fo r several years.  The Shanghai situation, by 
contrast, seemed to be much better and therefore wh atever was working in Shanghai should also be 
applied in Beijing.  He expressed the hope of his delegation for China to intensify its efforts in 
struggling against counterfeiting, which was a priority for the European Communities. 
99. The representative of the China  thanked the Members that had demonstrated their interest in 
China's IPR issues by putting forward so many questions and comments.  Although it was fair to say that China never liked the Article 18 review whic h imposed WTO-plus obligations on China, China 
never escaped from fulfilling its commitments.  Contra ry to what some Members had said, China was 
always willing to take full advantage of this revi ew mechanism in word an d in spirit and had been 
doing so in the past five years by providing the required information and by responding to the enormous number of questions put forward by Me mbers.  However, it should be emphasized again 
that Article 18 was a provision with a special nature  and a limited function, and that it did not require 
China to provide written responses nor to respond to  any questions that went beyond its commitments 
under the TRIPS Agreement.  Some questions that China had not provided answers to were closely 
linked to the IPR case that was already the subject of a panel process, which would be the more appropriate mechanism to deal w ith those questions.  China's door  was always open for cooperation 
on IPR issues, both bilaterally and multilaterally.  Such additional questions and comments could 
always be dealt with through other more appropriate channels.  With regard to the specific cases put 
forward by some Members, he said that IPR was a global issue instead of a country-specific one.  He 
had visited a shopping centre in central London where he had seen a small vendor selling Louis 
Vuitton bags that had obviously been pirated, but su ch isolated cases did, of course, not diminish the 
efforts by those developed Members regarding their IPR enforcement.  The same applied with regard 
to those isolated cases existing in China. 
100. The representative of th e European Communities
 said that while some counterfeit products 
could be found anywhere in the world, the diffe rence lied in the size and magnitude of the 
counterfeiting, whether it was just one product or a s hop the size of a football field with six floors like 
the Silk Market, which was dedicated almost entirely to the sale of counterfeits.  
101. The representative of the United States  reiterated his delegation's view that China had not 
taken full advantage of the review mechanism over the years and had shown a reluctance to do so 
from the beginning.  It was his delegation's view that the review was a commitment that had been 
negotiated and agreed by China in its accession agr eement and that China should fully adhere to that 
commitment.  If China would do that, more progress would be made on some of these issues. 
102. The Chairman  thanked China for all the information it had provided, as well as other 
Members for their contributions.  Turning to the Council's reporting obligation to the 
General Council, he suggested that the Council follow the same procedure as in the past years, namely 
that the Chairman, acting on his own responsibility, would again prepare a factual report.  The content 
of the cover page to the report would be similar to that of the report submitted by the Council in 2006 
and the part of the minutes reflecting the discussions  held under this agenda item would be attached. IP/C/M/55 
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  103. The Council took note
 of the statements made and agreed  to proceed as suggested by the 
Chair. 
D. REVIEW OF THE PROVISIONS OF ARTICLE 27.3( B) 
E. RELATIONSHIP BETWEEN THE TRIPS  AGREEMENT AND THE CONVENTION ON BIOLOGICAL 
DIVERSITY  
F. PROTECTION OF TRADITIONAL KNOWLEDGE AND FOLKLORE  
104. The Chairman  recalled that, at its meeting in March 2006, the Council had agreed to maintain 
its present method of work on these matters, and to  keep this method under review to assess whether 
any change might prove appropriate in the light of  developments.  He therefore suggested that the 
Council continue its past practice of discussing these  three agenda items together on the basis of the 
contributions by Members.  He informed the Counc il that, since its meeting in June 2007, Paraguay 
had requested to be added to the list of co-sponsor s of the disclosure proposal circulated as document 
IP/C/W/474 (issued with the joint symbols, WT/GC/W/564/Rev.2 and TN/C/W/41/Rev.2).  Addendum 5 to that document had been issued to this effect.  In addition, the Council had received 
two new communications, one from Peru entitled "Com bating Biopiracy – the Peruvian Experience" 
and circulated in document IP/C/W/493, and anot her from Japan containing additional explanations 
on its paper on "The Patent System and Genetic  Resources" (document IP/C/W/472).  The new 
communication had been circulated in document IP/C/W/504. 
105. The representative of Peru
 said that document IP/C/W/493 sought to raise awareness of the 
lack of effective legal instruments in international patent systems to combat biopiracy and to prevent 
misappropriation of genetic resources and associated traditional knowledge.  Part I of the document 
illustrated Peru's rich natural resources and the actua l and potential magnitude of biopiracy in Peru.  
Part II reviewed the documents submitted by Peru in the TRIPS Council in recent years.  Part III 
described the procedure followed by Peru's Na tional Anti-Biopiracy Commission in identifying 
biopiracy cases.  Part IV described the action taken by the Commission in several identified biopiracy 
cases which were related to three Peruvian resources, namely maca (also called the "Viagra of the 
Andes"), camu-camu  (a fruit with high vitamin C content), and sacaa inchi  (a wild fruit with 
regenerating and cosmetic proper ties).  Part V summarized limitations and problems facing the 
National Anti-Biopiracy Commission.  Part VI set out several conclusions.  Reiterating the importance of this issue, he said that Members shou ld start text-based negotiations.  He said that if 
WTO Members were not able to address this issue in the Doha Round, they would lose not only their 
credibility, but also a historic opportunity to ensure  a fairer and more efficient international trading 
environment.   
106. Introducing document IP/C/W/504, the representative of Japan
 said that the communication 
contained in its annex had also been submitted to the 11th Session of the WIPO Intergovernmental 
Committee on Intellectual Property and Genetic R esources, Traditional Knowledge and Folklore 
(IGC) in July 2007, which, in his view, was an appr opriate forum to discuss this issue.  Nevertheless, 
it was useful to share this communication with Memb ers in the Council in order to avoid duplication.  
The document consisted of three parts: structure of  the database system, prevention of third party's 
access to the database system, and registration of cited reference or information.  The document addressed Japan's positions on two key issues:  err oneously granted patents and compliance with the 
requirements of the Convention on Biological Diversity  (CBD).   He said that the database system 
could be distributed through a WIPO portal site that  could have links to the databases maintained by 
participating WIPO member states.  By entering a search formula onto the WIPO portal site, patent 
examiners could have access to member states' databases and obtain search results from all relevant databases simultaneously.  The risk of the leakage of information could be minimized by restricting 
reference material to the portion of the databases that  was related to novelty examination.  Japan also  IP/C/M/55 
 Page 19 
 
 
  proposed to establish an internet protocol addr ess authentication system, which would make the 
WIPO portal site accessible only to intellectual pr operty offices which had registered IP addresses.  
By allowing patent examiners to establish a linkage between patent applicatio ns and relevant genetic 
resources, he said that the WIPO portal site woul d help trace patent applications using the same 
genetic resources. 
107. The representative of Ecuador  said that, as a mega bio-diverse country, Ecuador faced 
limitations in its ability to identify specific biopira cy cases.  There had been some misappropriation of 
genetic resources in Ecuador, such as cat's claw, dragon's blood and ayahuasca.  As a co-sponsor of 
the developing countries' disclosure proposal, she welcomed the announcement made by the African 
Group and the LDC Group in support of the disclosur e proposal.  She said that a significant critical 
mass in the WTO advocated achieving a concrete r esult on this issue through an amendment of the 
TRIPS Agreement, and that this result would be an  essential element in the development dimension of 
the Doha Round.   
108. The representative of Brazil  said that Peru's submission was an initiative to highlight two 
concrete elements of the problem facing mega bi o-diverse countries:  transboundary use of genetic 
resources and erroneously granted patents.  The tr ansboundary use involved th e acquisition of genetic 
resources in the country of origin and the subseq uent seeking of patents in other countries, often 
developed countries.  This was an issue with an international dimension, which therefore required 
international obligations.  Regard ing erroneously granted patents, he said that this took place where 
traditional knowledge could not be found in prior ar t searches because either it existed in oral form or 
was not easily or readily accessible to patent examin ers or because patent examiners falsely applied 
the substantive patentability criteria.  As a multilat eral solution to this problem, his delegation, 
together with other co-sponsors, proposed an amendment of the TRIPS Agreement to include 
mandatory disclosure requirements.  
109. He said that Japan's proposal on the database sy stem duplicated the work undertaken in the 
IGC.  His delegation would not be supportive of creating any international databases of traditional 
knowledge until Members made a conc rete advance towards the disclosure requirements.  This was 
because creating such a database would make all in formation on traditional knowledge concentrated 
in searchable databases and thus make it readily acces sible on a global basis to any interested person, 
and consequently enhance and facilitate the possib ility of misappropriation of traditional knowledge.  
Therefore, there was a need for safeguards agains t misappropriation, such as the mandatory disclosure 
requirements, before considering such database systems. 
110. He further indicated that, at least in the in formal setting in the WTO, discussions on the CBD 
issue had been gaining some momentum as an in tegral part of the negotiations on outstanding 
implementation issues together with the issue of the extension of the protection of geographical 
indications provided for in Article 23 to products ot her than wines and spirits (GI extension) and the 
issue of the establishment of a multilateral system of notification and registration of geographical 
indications for wines and spirits (GI register).  He  said that although the issue of GI register did not 
belong to the same mandate as the issues of the CBD and GI extension, there was an acknowledgement of some linkages between them at least in the informal setting.  In informal 
consultations, the proponents of the disclosure propos al, as well as the proponents of the GI extension, 
had indicated a certain degree of flexibility over these issues, which would improve the conditions for broadening support to outcomes on both issues.  He al so indicated that developments on both issues 
were closely related to broader movement on th e core elements of negotiations in the Doha 
Development Round, namely agriculture  and non-agricultural market access. 
111. He said that there had been a growing support for the disclosure proposal since the African 
Group had decided to co-sponsor it, and the LDC Group had expressed its support, at the Council's 
meeting of June 2007.  This issue was widely perceived as a development component of the Doha IP/C/M/55 
Page 20  
 
  Round, and therefore should not be left off the table.  He said that the TRIPS Council was an 
appropriate forum for Members to have a tec hnical exchange on the amendment proposal.  He 
reiterated that the disclosure requirement had to be mandatory;  implemented through an amendment 
of the TRIPS Agreement;  lead to disclosure of biol ogical materials used in inventions that were the 
object of patent applications;  include references to the compliance with pr ior informed consent and 
benefit sharing where appropriate;  and have certain  legal consequences in cases of non-compliance.  
He also indicated that the disclosure requirement  was not an additional or fourth substantive 
patentability requirement, and that his delegation woul d like to have an in-depth exchange of views 
with other interested parties in this regard.  
112. The representative of China
 said that his delegation welcomed the discussion on the 
relationship between the TRIPS Agreement and the CBD as an important item on the agenda of the 
Council and also welcomed the consultations chaire d by the Deputy Director-General, which were 
helpful in leading Members to convergence on this issue.  He said that while national access and 
benefit-sharing systems and databases on genetic re sources might be of some help in eradicating 
biopiracy, they were far from sufficient to solve the problem.  On the other hand, the disclosure 
requirements would substantially help to fully implement the three main principles of the CBD, 
especially the one on benefit sharing.  Accordingl y, an amendment of the TRIPS Agreement could 
provide an international legal framework and e nhance the mutual supportiveness between the CBD 
and the TRIPS Agreement.  As biopiracy was a globa l problem, it needed a global solution.  With this 
belief, China, together with a number of other de veloping Members, had put forward a joint proposal 
in 2006 that contained concrete wording for the am endment of the TRIPS Agreement.  He noted that 
the African Group and a number of developing c ountry Members including Venezuela and Paraguay 
had decided to co-sponsor this proposal and the LDC Group had also offered its support to it.  
Therefore, the co-sponsors and the supporters of th e disclosure proposal amounted to nearly half of 
the Membership of  the WTO.  His delegation a ttached great importance to their support as it proved 
that this was a development issue.  Therefore, he  encouraged all Members to engage in text-based 
discussions in informal consultations and to hol d focused technical discussions on the amendment 
proposal at the Council's regular meetings in or der to deepen Members' understanding of the 
amendment proposal. 
113. The representative of India  said that, according to the Doha mandate, negotiations on 
outstanding implementation issues were an integral  part of the work programme.  The relationship 
between the TRIPS Agreement and the CBD was a critical implementation issue for developing 
countries.  The objectives of the disclosure propos al contained in document IP/C/W/474, of which 
India was one of the key proponents, were shared by all Members.  No Member supported misappropriation of genetic resources and traditiona l knowledge and all Members wished to prevent 
erroneously granted patents and agreed that mu tual supportiveness between the TRIPS Agreement 
and the CBD could be enhanced through the disclos ure requirements.  The failure of the TRIPS 
Agreement to extend protection to genetic res ources and traditional knowledge, which developing 
country Members enjoyed in abundance, was one of the factors leading to the imbalance in the TRIPS 
Agreement and in the multilateral trading system as a whole.  Under the TRIPS Agreement, countries 
had no obligation to examine whether there w as any misappropriation of genetic resources and 
traditional knowledge in patent applications.  With out adequate and effectiv e protection of genetic 
resources and traditional knowledge at the internat ional level, the problem  of misappropriation of 
genetic resources and traditional knowledge would con tinue.  He said that having labelled the Doha 
Round as a development one, its results would not be  complete if it fell short of correcting this 
imbalance.  For India, an outcome on this issue was an essential element of any development package 
that emerged from the Round.  The growing s upport base for the proposal, including co-sponsorship 
by the African Group and the support of the LDCs, i ndicated that it was time to enter the phase of 
text-based negotiations.  The work in the TRI PS Council should complement the work in the 
negotiating process.  IP/C/M/55 
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  114. The representative of Lesotho, speaking on behalf of the LDC Group in the WTO,  said that 
the LDC Group remained ready to engage constructivel y in all these issues with a view to achieving a 
successful conclusion of the Doha Round.  He reca lled that, at the TRIPS Council meeting of 5 June 
2007, the LDC Group had made a statement supporting the disclosure proposal originally presented by Brazil, China, Colombia, Cuba, India, Pakistan , Peru, Thailand and Tanzania.  He also recalled 
that, since that meeting, the LDC Group had been  consulting among its Members in order to indicate 
the exact nature of its support for the disclosure proposal, given that the LDCs had vast biological 
resources and were a home of bio-diversity.  He informed the Council that the LDC Group had been 
convinced that it was important to address misa ppropriation of genetic r esources and erroneously 
granted patents.  Therefore, he reiterated the Gr oup's support to the disclosure proposal and indicated 
that this issue should be an important part of the development outcome of the Doha Round. 
115. The representative of Sri Lanka
 expressed his full support to the Peruvian submission.  He 
recalled that Members had started the process with  an examination of a non-exhaustive list of 
technical issues during the consultations in line w ith paragraph 19 of th e Doha Declaration and 
paragraph 44 of the Hong Kong Ministerial Declarati on, and that, in his view, these technical issues 
had been sufficiently clarified.  He said that a legally enforceable disclosure requirement would 
prevent misappropriation of gene tic resources and traditional know ledge and erroneously granted 
patents.  He said that an overwhelming majority of the developing countries ha d reiterated that finding 
a satisfactory outcome to the CBD issue, as well as to the GI issue, was critical to deliver the 
development dimension of the Doha work programme .  Therefore it was time for Members to engage 
in text-based negotiations.   
116. The representative of Pakistan  said that the entire membership agreed with the basic premise 
of the proponents of the disclosure proposal that biopiracy was a serious problem.  He said that, as 
one of the co-sponsors of the disclosure proposal, his delegation was fully aware of its value and 
implications for Members' economies.  He said th at intellectual property rights (IPRs) had evolved in 
large part due to the recognition by societies in  domestic jurisdictions and protection afforded 
internationally.  To block out of the same protecti on of IPRs the interests of developing Members and 
their communities in comparison to better placed stake holders could only lead to an erosion of respect 
for and protection of other IPRs, which was highly u ndesirable.  He therefore urged Members to give 
this issue its due importance within the Council.  He appreciated the constructive attitude of some 
developed country Members, in particular Norw ay.  He indicated his delegation's willingness to 
cooperate with other Members on finding ways to m ove to text-based negotiations.  Finally, he said 
that any outcome in the Doha Round that did not take into account the development dimension of the 
TRIPS Agreement would not be acceptable to the proponents and to the Membership at large. 
117. The representative of Norway  said that the TRIPS Agreement and the CBD could and should 
be implemented in a mutually supportive manner, and that the interaction between the two treaties 
would be enhanced by the disclosure obligation in the TRIPS Agreement.  He then responded to the 
questions posed by Chinese Taipei at the Council's prev ious meeting.  He replied in the positive to the 
question whether the disclosure requirement should a pply to patent applications in non-biotechnology 
fields.  Regarding the question about which fields would be covered by the disclosure requirement, he 
said that while his delegation did not have a defi nitive answer, the requirement should be technology-
neutral, as was the wording of Article 27.1 of th e TRIPS Agreement.  Regarding the question of 
whether the disclosure proposal exceeded the Doha  mandate, he said that the requirement was 
consistent with the broad language  and objectives of the Doha Decl aration, and therefore did not 
exceed the mandate of the relevant paragraphs in the Doha Declaration.  Regarding the question of 
whether the notification of traditional knowledge that  had no connection with genetic resources had to 
be delivered through the CBD Clearing-House Mechan ism, he said that that mechanism could not be 
used for material outside the scope of the CBD,  and accordingly a notification system had to be 
designed to include such traditional knowledge.  An e ffective solution could be to expand the scope of 
existing mechanisms, such as the CBD Clearing-H ouse Mechanism.  Regarding the question of IP/C/M/55 
Page 22  
 
  whether genetic resources obtained not by bio-pr ospecting but by purchase on a open market should 
be disclosed in patent applications, he said that the aim of the Norwegian proposal was to further the 
objectives of the CBD, and that all biological material should be treated in the same manner.  This would enhance transparency and secure a balance be tween the material purchased on the open market 
and the material obtained from other sources.  Therefore, when material had been purchased on the 
open market, it would be sufficient to disclose the source, i.e. the country of origin or the provider country, if different. 
118. Responding to the question raised by Australia  about whether it would be enough to satisfy 
the proposed disclosure requirement for patent app licants simply to make a statement that prior 
informed consent and access and benefit sharing had been obtained, he said that it might not be 
enough.  In his view, the patent system would onl y enjoy necessary transparency, credibility and trust 
if there was a link to a specific material in patent  applications.  Regarding the question of whether 
compliance with relevant national la ws had to be confirmed by patent authorities, he said that it was 
not envisaged that patent authorities would have to  confirm compliance with relevant national laws.  
Regarding the question of how the disclosure requi rements would ensure that the novelty criterion 
was met, he said that such requirements could ha ve an impact on assessments of novelty and inventive 
step if the material covered by the patent appli cation had not been modified, sequenced or isolated 
from its natural environment.  Moreover, trad itional knowledge could contain information that 
anticipated the claimed invention.   
119. The representative of Colombia
 said that Peru's submission was useful to identify the problem 
facing mega bio-diverse countries.  National and re gional protection systems did not suffice and there 
was a need for multilateral obligations.  Regarding Japan's proposal for the database system, he said 
that it could complement but in no way substitute the need for a multilateral disclosure requirement.  
He said that the WTO was the only forum to negotia te this issue based on the text submitted.   
120. The representative of th e European Communities  said that, from the outset, his delegation had 
addressed these important issues in an open and constr uctive spirit and that it would continue to be 
committed to this process in line with the mandate cont ained in the Doha Declaration.   He said that 
the flexibilities of the TRIPS Agreement and the availa bility of other international instruments, such 
as the CBD, allowed Members to address these issues in a satisfactory manner in many cases.  There 
was therefore no conflict between the TRIPS Agreement and the CBD.  However, his delegation was prepared to look into concrete solutions to th e problem when necessary and to consider limited 
adjustments of intellectual property systems in order to ensure a more effec tive interplay between the 
two agreements.   
121. He recalled that, in its communication to the Council in 2002, his delegation had agreed to 
examine the possible introduction of a system, su ch as a disclosure requirement, that would allow 
Members to keep track of all patent applications re lating to genetic resources at the global level.  Such 
a system would ensure transparency and would allow the authorities of countries granting access to 
their resources to keep track of patent applications  based on the use of these resources.  He said that 
the introduction of the new patent disclosure require ment would not in itself achieve the objectives of 
the CBD, but if appropriately calibrated, it could be a tool to contribute to a solution, particularly to 
help check whether contractual arrangements had been  respected.  He said that the introduction of the 
disclosure requirement should allow the patent system  to continue to be a highly effective tool for 
stimulating innovation, technological progress and economic development.  It should not be 
burdensome to the patent system and, in particular , patent offices should not be required to verify the 
conditions under which gene tic resources had been obtained.  The role of the patent office should be 
limited to examining whether the formal require ments had been fulfilled and whether the patent 
applicant who had declared that his invention had used genetic resources had subsequently disclosed 
the appropriate information.  Similarly patent  applicants should not be confronted with 
insurmountable formalities and should only provide in formation that they knew.  Accordingly, his  IP/C/M/55 
 Page 23 
 
 
  delegation could only support the disclosure of origin  or source.  A system that would require the 
disclosure of evidence of prior informed consen t and benefit sharing w ould be problematic.  
Regarding the legal consequences of non-compliance w ith the disclosure requirement, he said that 
when the information provided was incorrect or  incomplete, appropria te sanctions, either 
administrative or criminal as determined by each country, should be applied.  However, these 
sanctions should be applied outside  the sphere of patent laws.  In other words, sanctions for non-
compliance should not include the revocation of granted patents.  Before the patent was granted, if the 
applicant failed or refused to declare the required information despite being given the opportunity to 
do so, the application should not be further process ed and the applicant should be duly informed of 
this consequence. 
122. The representative of Thailand  said that biopiracy was of great concern to his delegation.  
Without adequate and effective protection at the in ternational level, the problem of misappropriation 
of genetic resources and traditional knowledge w ould continue.  The amendment proposal was both 
logical and timely.  As the proposal focused only on patent systems, the scope of its application would 
be modest and limited and would not expand to other IPRs.  He said that a solution to 
misappropriation of genetic resources and traditional knowledge should be part of the outcome of the 
Doha Development Round.  This was particularly important given the substa ntial support extended by 
the African Group and the LDC Group. Accordingly, his delegation suggested starting text-based negotiations. 
123. The representative of Japan
 referred to a case of biopiracy contained in Peru's submission, in 
which the Japanese Patent Office (JPO) had allegedl y not considered the information sent to it by 
Peru for examination of a patent application.  He said that the patent examiner had decided to reject 
the patent application before receiving the inform ation submitted by Peru.  After considering the 
information submitted by Peru, and the arguments and amendments made by the applicant, the 
examiner had issued a final decision which maintain ed the first decision.  Regarding Peru's concern 
over poor or no translation of patent applications a nd grants in the JPO's databases, he said that the 
JPO had been making an effort to improve the quality of machine translation.  It would be useful to 
add the term "genetic resources" to the dictionary of machine translation.  He informed the Council 
that the English abstracts of patent applications received after 1970 and English machine translations 
of entire patent applications received after 1993 we re now available.  Referring to Peru's statement 
that the disclosure requirement was necessary to prev ent biopiracy and to avoid bad patents, he said 
that, as indicated in document IP/C/W/472, since patent examination was based on the technical 
characteristics of patent subject matter rather than its geographical origin, information on the origin 
was irrelevant to the determina tion of patentability.  To improve patent search facilities, such as 
through databases, was a way to prevent bad or erroneously granted patents. 
124. The representative of the United States  said that his delegation was one of several Members 
that saw no conflict between the TRIPS Agreement a nd the CBD.  It considered that these agreements 
could and should be implemented in a mutually supportive manner and that therefore no amendment 
to the TRIPS Agreement was needed or warrante d.  The recent discussions in the Council had  
generally confirmed a wide divergence of views on ho w to address these issues.   He believed that the 
Council's work should, consistent with its manda te, continue to focus on fact-based discussions 
analyzing actual examples and illustrating perceive d concerns.  This work should include, in 
particular, examination of existing access and benefit- sharing regimes as this appeared to be directly 
related to perceptions of what c onstituted misappropriation.  In this  way, the Council's future work 
could facilitate progress in this area and continue to  clarify points of disagre ement while helping to 
reduce differences among Members.   
125. He said that his delegation continued to share th e concerns raised by Peru and other Members 
regarding ensuring appropriate access and equitable benefit sharing and that some inventions that 
might be passing examination of novelty or inventive step when they should not, as indicated in Peru's IP/C/M/55 
Page 24  
 
  submission.  Referring to the examples provided in Pa rt IV of Peru's paper, he said that it was not 
clear to his delegation that patents had in fact be en granted in a manner that could be regarded as 
enabling biopiracy.  He said that, as demonstrated by the extensive discussions on the turmeric case, 
reference to the country of origin was irrelevant to  an examination of compatibility with patentability 
criteria and therefore the new patent disclosure re quirements would not achieve the objectives that 
they sought to achieve.  Instead, as advocated by his delegation, a contract based system including 
provisions for mutually agreed terms would provi de for appropriate access to genetic resources as 
well as ensure equitable sharing of the benefits fro m their use.  Nonetheless, his delegation remained 
willing to work through specific examples to gain a better understanding of the concerns raised and to 
resolve the divergent views of Members.  Referring to Peru's concerns on access to patent information 
and translation, he said that there was significant ro om to address all these concerns in a manner that 
would not have the inherent problem of the disclosur e proposal.  In this regard, he supported further 
work on Japan's proposal for a one-stop database sy stem.  He also said that the TRIPS Council should 
focus on pragmatic solutions to the concerns rai sed rather than advocate burdensome remedies that 
would not address underlying problems.   
126. The representative of Chinese Taipei
 said that Japan's proposal for a database system was 
worth exploring in order to avoid erroneously grante d patents.  As regards prior informed consent and 
access and benefit sharing, he said that, as Members had divergent views on this issue, further discussion was needed to help Members understand th e pros and cons of each proposal.  He then 
posed several questions to Norway regarding its pr oposal: what would be the legal effect on patent 
applications or granted patents if the patent appli cant disclosed relevant information in good faith, but 
a third-party protested the disclosed information?   Would the patent examination process be stopped 
until this issue was resolved?  What would happen if  this issue occurred after the patent had been 
granted or after some benefits had been shared?   
127. The representative of Switzerland
 said that Japan's proposal was very much in line with his 
delegation's proposal for the establishment of an international gateway for traditional knowledge. This 
gateway would link electronically local and nati onal databases on traditional knowledge, which would 
facilitate access by patent authorities to traditional kn owledge stored in these databases.  This gateway 
would allow the effective integration of traditiona l knowledge documentation into searchable prior 
art.  This gateway would be complemented by ot her measures taken at the international and national 
levels with regard to access and benefit sharing.  More information on the gateway proposal could be 
found in documents IP/C/W/284 of June 2001 and IP/C /W/400/Rev.1 of June 2003.  He recalled that 
his delegation had submitted proposals to WIPO re garding disclosure of the source of genetic 
resources and traditional knowledge in patent app lications, a summary of which was contained in 
WIPO document WIPO/IC/GRTKF/11/10 of June 2007.   
128. He then raised two questions on Japan's proposal: had Japan analyzed the required 
standardization of the established databases in deta il, such as the format of the databases and the 
software used?  Would Japan's proposals cover th e databases other than those established at the 
national level, such as regional or local databases?    
129. The representative of Korea  said that his delegation full y understood the importance of 
biopiracy and misappropriation of genetic resources.   However, introducing a new requirement into 
the TRIPS Agreement as a condition for granti ng patents would impose an undue burden on both 
patent applicants and patent aut horities, which would inevitably cause in stability in the patent system.  
Regarding the relationship between the TRIPS Ag reement and the CBD, he said that fact-based 
discussions would help to identify problems and to  reduce gaps in Members' understanding of this 
issue.  He shared the view with Japan that the TRIPS Council should take into account the work being 
carried out in WIPO in order to avoid duplication.  IP/C/M/55 
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  130. The representative of Canada  said that his delegation would c ontinue to engage  constructively 
in ongoing discussions on the relationship between the TRIPS Agreement and the CBD in the TRIPS 
Council.  Nevertheless, other international forums th at had established expertise and capacity in this 
area, including the CBD, WIPO and the FAO, were also undertaking significant technical discussions.  He underscored the progress accomplished at the l ast sessions of the IGC.  He reaffirmed his 
delegation's view that the most meaningful way to advance the discussion on the relationship between 
the TRIPS Agreement and the CBD in the WTO was to  engage in fact-based technical discussions of 
various proposals made in the TRIPS Council and that  time and considerations should be given to a 
full scoping of the issue before proceeding further, w ith particular focus on those who had either best 
practices to share or who had experienced problems.   He encouraged Members to consider other 
mechanisms to protect biodivers ity and prevent misappropriation of  genetic resources, such as 
developing broader and more globa lly accessible and functional prior art databases, using mutually 
agreed terms in material transfer agreements, licen sing, codes of conduct and other contracts.  With 
respect to the proposal for introduction of a mandatory disclosure obligation into the TRIPS Agreement, he said that his dele gation had not yet been shown that there was a contradiction between 
the TRIPS Agreement and the CBD and therefore re mained unconvinced of the need for such an 
amendment.   
131. The representative of Australia
 underlined a need for a clear meaning of the term "biopiracy".  
She said that biopiracy was used to refer to differe nt situations.  The first category, as emphasized by 
Brazil, referred to cases where genetic resources and/or traditional knowledge had been obtained 
illegally, i.e. in contravention of laws governing access to those resources in  those countries.  A 
second one, as emphasized in Peru's paper, referre d to cases where genetic resources or traditional 
knowledge had been obtained legally and were used in patents which arguably lacked novelty due to 
the existence of prior art in the form of trad itional knowledge.  In her view, it was important to 
distinguish between those two categories in order to  properly deal with the underlying problem.  The 
biopiracy cases documented by Peru appeared to fa ll within the second category, although one case 
was not entirely clear.  Regarding the case concerni ng an application in Japan, she said that as the 
patent application had been rejected by the JPO,  she wondered what was Peru's concern over it.  
Regarding the second case, which was the only one of  the five cases given where a patent had been 
granted, no basis had been given for the claim of biopiracy.  She wondered whether Peru argued that 
prior art existed or that genetic resources had improperly been remove d from Peru in contravention of 
its national laws.  She said that all these questions led her delegation to a fundamental question:  how 
would the disclosure proposal have affected the outcome of the cases documented by Peru or how 
would the disclosure proposal have provided patent examiners information to better access prior art 
and to avoid bad patents or biopiracy.  She said that the disclosure provisions would indicate at most that a further concentration on a search of docume nts from the origin country might be warranted.  
However, even then in practice this information w as unlikely to be helpful in identifying relevant 
prior art for a number of reasons.  Firstly, genetic  resources were often av ailable in many different 
countries at the same time.  Secondly, much info rmation about novelty and inventive properties was 
not recorded and thus not revealed in prior art searches, which was even more likely in the case of 
traditional knowledge. 
132. She further said that there were a number of existing tools which could facilitate disclosure, 
such as the International Patent Classification System which included traditional medicine related 
subject matter and allowed for more targeted documentation searches, and the PCT minimum 
documentation which included traditional knowledge  and non-patent litera ture, and could be 
consulted by international search authorities to have  comprehensive prior art searches.  She said that 
database-type solutions seemed to be more useful in addressing the problems facing Peru than the proposed amendment of the TRIPS Agreement.  Sh e would like to have Peru's views on Japan's 
proposal for databases.  In conclusion, she said th at her delegation agreed with India that the 
objectives of the disclosure group, namely to prev ent bad patents and misappropriation and to ensure IP/C/M/55 
Page 26  
 
  equitable benefit sharing, had been widely shared  by Members.  However, her delegation disagreed 
with India on the means of achieving these objectives. 
133. The representative of New Zealand
 said that, as a bio-diverse country, New Zealand had an 
interest in certainty and predictability of inte llectual property systems, but also a significant 
indigenous interest in the preservation of New Z ealand's genetic resources a nd traditional knowledge.  
Discussions in the TRIPS Council were followed with a gr eat deal of interest at the national level.  He 
encouraged Members to have fact-based di scussions, including discussion of specific cases and 
national experiences, which would lead Members to useful conclusions about the extent of 
misappropriation, how existing systems could be implemented more successfully, and whether new tools were required.  Regarding Peru's submission,  he said that it provided a comprehensive outline of 
Peru's legislative and institutional framework fo r protection of biological resources and traditional 
knowledge, especially Peru's National Anti-Biopiracy Co mmission.  He noted that the JPO's databases 
had supported the Commission's work, but Peru had concerns on the time and cost of access, 
translation and analysis of patent applications.  He therefore wondered whether Peru had views of the 
merit of further exploring Japan's proposal. 
134. The representative of the Philippines
 said that, pursuant to the mandate given by the Hong 
Kong Ministerial Conference, an appropriate way fo rward was to constructively engage in text-based 
negotiations as soon as possible so as to define an  international framework as proposed by Brazil, 
China and others. 
135. The representative of Peru  said that his delegation was open to all proposals on the table, 
including the proposals made by Japan, Switzerland and the United States.  He informed the Council 
that the Free Trade Agreement between Peru and th e United States recognized the value of contract-
based systems.  He said that the database system established by Peru for the registration of traditional 
knowledge was a useful effort, which might be replicated by the WTO or other international 
organizations.  Referring to Canada's point that this  issue was being dealt with in other forums, he 
said that the WIPO IGC had not made progress on the substance of this issue and that the TRIPS 
Council was an appropriate forum.  Regarding the qu estion of what constituted biopiracy, he said that 
it meant misappropriation of genetic resources and tr aditional knowledge.  Regarding some Members' 
suggestion that Members should start with examination of specific biopiracy cases, he said that the approach of case-by-case study was not necessary and that other negotiations had not used such an 
approach.  Finally, he said that the disclosure requi rement, which might not be a final solution to the 
problem of biopiracy,  did make it easier for Memb ers to tackle and investigate biopiracy cases.   
136. The representative of Japan
 reiterated that the IP address authentication system would address 
some Members' concern on the exposition of the in formation contained in the database system.   
137. Returning to this agenda item later in the mee ting, the representative of Lesotho, speaking on 
behalf of the LDC Group in the WTO , said that the Group not only supported the proposal originally 
submitted by Brazil, China, Colombia, Cuba, India, Pakistan, Peru, Thailand and Tanzania, but also 
wished to co-sponsor it. 
138. The delegations of India , Brazil  and China  welcomed the decision of LDCs to co-sponsor the 
developing country proposal on TR IPS and CBD, emphasizing the importance of the growing base of 
supporters among WTO Members for taking the proposal further.  The growing support indicated that this particular element of the negotiations in the Doha Round was of real importance to developing 
countries in general and that text-based negotia tions on the matter had to begin soon.    
139. The Council took note
 of the statements made under these three agenda items and agreed  to 
revert to them at its next meeting.    IP/C/M/55 
 Page 27 
 
 
  G. REVIEW UNDER PARAGRAPH 8 OF THE DECISION ON THE IMPLEMENTATION OF PARAGRAPH 6 
OF THE DOHA DECLARATION ON THE TRIPS  AGREEMENT AND PUBLIC HEALTH  
140. The Chairman  recalled that paragraph 8 of the waiv er Decision provided that the Council for 
TRIPS should review annually the functioning of the system set out in the Decision with a view to 
ensuring its effective operation and should annuall y report on its operation to the General Council.  
Furthermore, the paragraph provided that this review should be deemed to fulfil the review 
requirements of Article IX:4 of the WTO Agreement. 
141. He said that the Secretariat had prepared a draft cover note for the Council's report modelled 
on that of last year's report (JOB(07)/150).  The draft cover page contained factual information on the 
implementation and use of the system established under the Decision and on the acceptance of the 
Protocol Amending the TRIPS Agreement.  He pr oposed that, in accordance with the way that the 
Council prepared its report last year, the part of the minutes of the meeting reflecting the discussions held under this agenda item be  attached to the cover note. 
142. He informed delegations that, since its me eting in June, the Council had received from 
Rwanda a notification under paragraph 2(a)  of the Decision of 30 August 2003 on the 
"Implementation of Paragraph 6 of  the Doha Declaration on the TRIPS Agreement and Public Health" 
(IP/N/9/RWA/1).  The Council had also recei ved a related notification from Canada under 
paragraph 2(c) of the same Decision (IP/N/10/CAN/1). 
143. As regards the status of acceptances of the Protocol Amending the TRIPS Agreement that 
was done at Geneva on 6 Decembe r 2005, he said that the following Members had notified their 
acceptance of the Protocol since the Council's me eting in June:  Israel on 10 August, Japan on 
31 August, Australia on 12 Septembe r, and Singapore on 28 Septembe r (documents WT/Let/582, 592, 
593 and 594, respectively).  He recalled that the United States, Switzerland, El Salvador, Korea, 
Norway, India and the Philippines had notified th eir acceptance already earlier.  Therefore, 11 
Members had accepted the Protocol so far, whic h would enter into force for these Members upon 
acceptance of the Protocol by two thirds of the Member s.   He said that the Secretariat had circulated 
an update to the note on the status of acceptances of the Protocol that the Council had requested it to 
prepare at its meeting in October 2006 (IP/C/W/490/Rev. 1) and that the Secretariat would continue to 
update it periodically. 
144. The Chairman recalled that the Protocol  was open for acceptance by Members until 
1 December 2007 or such later date as may be d ecided by the Ministerial Conference.  Given the 
proximity of this date, he suggested that the Counc il may wish to consider submitting a proposal to 
the General Council for a decision to extend the peri od for the acceptance of the Protocol.  For this 
purpose, a draft decision on the extension of the pe riod for the acceptance that could be submitted to 
the General Council had been included in Annex 2 to the draft report.  As regards the deadline for the 
extended period for acceptances, he suggested that th e Council consider proposing an extension of the 
period by a further two years until 31 December 2009. 
145. The representative of Canada
 said that the draft report accurately reflected Rwanda's 
notification to the Council of its intention to im port 260,000 packs of triple combination HIV/AIDS 
therapy manufactured by the Canadian company Apotex .  On 4 September, Apotex had filed the first 
compulsory licence application under Canada's Acc ess to Medicines Regime and, on 19 September, 
the Commissioner of Patents had granted an author ization to Apotex to manufacture and export the 
triple therapy drug to Rwanda.  His delegation w as pleased to be the first country to issue a 
compulsory licence under the system set out in th e Decision.  The licence was valid for two years 
from the date of the grant.  Apotex could seek a renewal for a further two years if the authorized 
quantity of the drug was not exported during the initial period.  He referred to his delegation's 
notification for further details (IP/N/10/CAN/1) a nd hoped that Rwanda's no tification would inspire IP/C/M/55 
Page 28  
 
  other countries to follow.  Canada's officials were pr epared to explain to other interested parties how 
best to take advantage of the regime. 
146. He noted that his delegation had been among the first to introduce legislation to implement 
the Decision.  Based on the automatic review me chanism built into domestic legislation, public 
comments had been sought on a consultation paper and a parliamentary committee had held public 
hearings.  The review was now completed and the Government was working on finalizing the ensuing 
report.   He hoped to be in a position to shar e more details at the Council's next meeting. 
147. He noted that Canada's Access to Medicines Regime was only one part of the Government's 
broader response to addressing public health problems  in the developing world.  For example, the 
budget for 2007 had introduced a new tax incentive to encourage pharmaceutical manufacturers to 
donate greater amounts of needed medicines to deve loping and least-developed countries.  In addition, 
an HIV/AIDS vaccine initiative was currently being funded in collaboration with the Gates 
Foundation. 
148. Turning to the proposal for a decision to extend the period for the acceptance of the Protocol, 
he said that his delegation supported the extensi on of the deadline until 31 December 2009.  He 
encouraged all WTO Members to complete their inte rnal procedures before that date.  He reminded 
delegations that the waiver remained in place in th e meantime and that Canada's Access to Medicines 
Regime would continue to function fully. 
149. The representative of Uganda, speaking on behalf of the African Group,
 said that the African 
Group fully endorsed the Chairman's proposal that  the draft report be s ubmitted to the General 
Council and the deadline for the acc eptance of the Protocol be extended for another two years to 
31 December 2009.  This would allow WTO Member s to complete their internal ratification 
procedures.  The African Group was working very cl osely with capitals to get the necessary approval 
for the acceptance of the Protocol and expected that  most of its members would be depositing their 
instruments of acceptance sooner rather than later so  that the required acceptance of the Protocol by 
two thirds of the membership could be reached  and the TRIPS amendment enter into force. 
150. He thanked the delegation of Ca nada for its support for the extension of the deadline and  
endorsed the African Group's support for Canada's st atement according to which the waiver remained 
in place until the procedures regarding the acceptance of  the Protocol were completed.  He also noted 
that the African Group would continue to monitor the domestic processes in those members that had 
not filed their intention to use the system. 
151. The representative of Rwanda  recalled that, pursuant to the 30 August 2003 Decision on the 
Implementation of Paragraph 6 of the Doha Declaration on the TRIPS Agreement and Public Health, 
his delegation had notified the Council for TRIPS of its  intention to import a fixed dosed antiretroviral 
drug.  It was the first country without manufactur ing capacities to initiate the process of using the 
waiver to the TRIPS Agreement.  Since Canada had issued a compulsory licence to a domestic 
company in order for it to start producing the generi c version of the medicine, the process was moving 
ahead.  He said that the steps al ready undertaken provided evidence th at the instrument negotiated by 
WTO Members for public health purposes could work. 
152. The representative of China  welcomed Rwanda's effort to use the flexibilities in the system 
set up by the Decision, as well as the notifications  submitted by Rwanda and Canada.  This was a 
useful attempt to test the effectiveness of the syst em.  It would be helpful for other Members to learn 
from the experience made in this regard.  He said th at China attached great importance to the Protocol 
and was approaching the final stage of the process for its acceptance.  While he believed that China 
would be able to notify its acceptance before the orig inal deadline, he could also support the extension 
of the deadline for another two years.  IP/C/M/55 
 Page 29 
 
 
  153. He welcomed notifications by Members who had already amended national legislation in 
order to implement the system.  He encouraged them to make presentations on their implementing 
legislation, including on how any problems had b een addressed, since many developing country 
Members were facing technical problems in amending their relevant national la ws and regulations and 
in understanding the national legisla tions of other Members.  In this  regard, he welcomed Canada's 
introduction to the review mechanism of its national legislation and was looking forward to the report 
by Canada on its outcome at the Council's next meeting. 
154. The representative of the European Communities  welcomed the notification by Rwanda of its 
intention to use the system set up by the Decision and the positive and quick answer by Canada authorizing the manufacture and export of the drugs c oncerned to meet Rwanda's needs.  This was an 
important step which demonstrated that the system  was working.  He encouraged other countries in 
need to use it.  His delegation had adopted a Regulation in 2006 which implemented the system, 
allowing European companies to produce ge neric drugs under compulsory licence.   
155. As the required threshold for the entry into force of the Protocol would not be reached by 
1
 December 2007, his delegation supported the extensi on of the deadline for another two-year period.  
He informed the Council that the European Par liament's assent to the TRIPS amendment was 
imminent, which would enable his delegation to proceed to the notification of the acceptance of the 
Protocol after the final approval by the European  Communities' Council of Ministers.  Other WTO 
Members which had not accepted the Protocol should do so as soon as possible to confirm their commitment to the process. 
156. The representative of Norway
 said that his delegation was ready to go along with the proposal 
to extend the period for acceptance.  He encour aged WTO Members that had not notified their 
acceptance to maximize their efforts to m eet the original December 2007 deadline. 
157. The representative of Switzerland  supported the draft report, as well as the Chairman's 
proposal to extend the deadline for acceptance of the Prot ocol for another two years.  He regretted that 
this had become necessary, despite the urgency a ttached by many delegations to the transposition of 
the waiver into an amendment of  the TRIPS Agreement in 2005.  His delegation had hoped that the 
amendment could have entered into force within the initial period for acceptance set by the General 
Council. He encouraged Members which had not yet acc epted the Protocol to complete their internal 
procedures so that the amendment could enter into force before the expiry of the extended period for 
acceptance. 
158. He welcomed the notifications by Rwanda a nd Canada and was looking forward to having 
further news on how the system was put in operatio n.  His delegation had notified its acceptance in 
2006.  In June 2007, the Parliament had approve d national implementing legislation which was 
expected to enter into force early in 2008.  It introduced the possibility of granting a compulsory 
licence for export purposes in accordan ce with the terms and conditions of the draft amendment of 
Article 31 bis of the TRIPS Agreement and its Annex. 
159. The Chairman  proposed that the Council agree on forwarding to the General Council the 
proposal for a decision to extend the period of acceptance by Members of the Protocol until 
31 December 2009.  He suggested that paragraph 10 of the draft report to the General Council be 
modified to read as follows:  "G iven the present status of acceptan ces, the Council for TRIPS submits 
the attached proposal to the General Council for a decision to extend the period for acceptances of the 
Protocol."  He proposed that, with these modifica tions, the Council agree to the cover note to the 
report contained in JOB(07)/150 and also that the Council minutes containing the record of the 
discussion be attached to it. 
160. The Council so agreed . IP/C/M/55 
Page 30  
 
  H. N
ON-VIOLATION AND SITUATION COMPLAINTS  
161. The Chairman  recalled that paragraph 45 of the Hong Kong Ministerial Declaration directed 
the TRIPS Council to continue its examination of th e scope and modalities for complaints of the types 
provided for under subparagraphs  1(b) and 1(c) of Article XXIII of GATT 1994 and make 
recommendations to the next session of the Minister ial Conference.  It was agreed that in the 
meantime, Members would not initiate such  complaints under the TRIPS Agreement. 
162. He further recalled that, at its meeting in Marc h 2006, the Council had agreed to keep the item 
on non-violation and situation complaints on the agenda as a regular item so as to allow Members 
who would have new thinking to share it, and also enable the Council to consider improved ways of 
organizing its work on this matter. 
163. The Council agreed  to revert to the matter at its next meeting. 
I. REVIEW OF IMPLEMENTATION OF THE TRIPS  AGREEMENT UNDER ARTICLE 71.1 
164. No statements were made  under this agenda item. 
165. The Council agreed  to revert to the matter at its next meeting. 
J. REVIEW OF THE APPLICATION OF THE PROVISIONS OF THE SECTION ON GEOGRAPHICAL 
INDICATIONS UNDER ARTICLE 24.2 
166. The Chairman  recalled that Article 24.2 provided that the Council shall keep under review the 
application of the provisions of the GI Section of the Agreement.  He said that, at its meeting in 
February, the Council had agreed that the Chair hol d further consultations in due course on how the 
Council should organize its future work on the review.  Given that he had not received any 
representations from delegations on the issue, he had not yet held such further consultations.  
However, he remained ready to hold such consultations once he would sense an active interest in 
pursuing the matter. 
167. He urged those delegations that had not yet pr ovided responses to the Checklist of Questions 
contained in document IP/C/13 and Add.1 to do so.  He also said that those Members who had already 
provided responses could provide updates to the exte nt there had been any significant changes to the 
way they provide protection to geographical indications. 
168. The Council agreed  to revert to the matter at its next meeting. 
K. FIFTH ANNUAL REVIEW UNDER PARAGRAPH 2 OF THE DECISION ON THE  IMPLEMENTATION 
OF ARTICLE 66.2  OF THE TRIPS  AGREEMENT  
169. The Chairman  recalled that, at its meeting in February 2003, the Council had adopted a 
decision on the "Implementation of Article 66.2 of  the TRIPS Agreement".  Paragraph 1 of the 
Decision provided that developed country Members shall submit annually reports on actions taken or 
planned in pursuance of their commitments under Article 66.2.  To this end, they were to provide new 
detailed reports every third year and, in the interv ening years, provide updates to their most recent 
reports.  These reports were to be submitted prior to the last Council meeting scheduled for the year in 
question.  He said that the second set of detailed a nnual reports under the Decision had been presented 
to the Council's meeting in October 2006.  At its  meeting in June 2007, the Council had requested 
developed country Members to submit updates to these reports for the October meeting.  The 
Secretariat had issued an airgram (WTO/AIR/3053) on 23 July to remind developed country Members 
of this request.  IP/C/M/55 
 Page 31 
 
 
  170. The Council had received updates to these repor ts from the following developed country 
Members:  Switzerland;  Japan;  the European Communities and individual member States (namely Austria, Belgium, the Czech Republic, Finland, Fr ance, Germany, Ireland, Spain, Sweden, and the 
United Kingdom);  as well as from New Zealand;  Norway;  the United States;  Canada;  and Australia (being circulated in document IP/C/W/497 and addenda). 
171. As regards the purpose and conduct of the revi ew of this information, he recalled that 
paragraph 2 of the Decision on the Implementation of Article 66.2 of the TRIPS Agreement explained 
that the annual review meetings shall provide Me mbers with an opportunity to pose questions in 
relation to the information submitted and request ad ditional information, discuss the effectiveness of 
the incentives provided in promoting and encouragin g technology transfer to least-developed country 
Members in order to enable them to create a s ound and viable technological base, and consider any 
points relating to the operation of the reporting procedure established by the Decision. 
172. The representative of Lesotho, speaking on behalf of the LDC Group in the WTO
, said that 
LDCs had always been appreciative of the efforts of and initiatives taken by their developed trading 
partners on the issue of technology transfer.  The LDC Group believed that the development of 
technological capacity was essential for the successful integration into the multilateral trading system.  
When the TRIPS Agreement was negotiated, the impor tance of this factor was fully realized and 
reflected in Article 66.2.  He therefore called upon developed country Members to provide the kind of 
technical and financial incentives that would enco urage the implementation of technology transfer.  
The LDC Group also requested them to share envir onmental technologies to help LDCs protect the 
environment. 
173. Thanking developed country Members for their re ports, he said that he expected Members to 
appreciate the capacity constraints LDC Members faced .  It was a challenge for them to go through 
the reports and to be assured that the deve loped country Members had complied with their 
obligations.  Given that it needed support in th is area, the LDC Group believed that it would be 
beneficial if it could be assisted in understanding and analyzing the reports.  He requested the WTO 
Secretariat to arrange seminars and workshops fo r LDC Members to help them better understand the 
reports and enable them to participate more actively and substantively in the discussions on this issue.  
He said that the WTO Secretariat could, if necessar y in collaboration with other organizations like the 
ICTSD, organize a seminar for LDC Members. 
174. The representative of Brazil  noted that reports on the implementation of Article 66.2 were 
rather lengthy and differed in style.  He said th at not only LDCs needed the assistance of the WTO 
Secretariat to better understand what is actua lly being done by the submitting Members.  He 
supported the request of the LDC Group and suggested  that the workshop should be open-ended so as 
to allow all interested Members to attend.   
175. He said that there seemed to be a diverse inte rpretation of what was the actual meaning of 
Article 66.2.  Firstly, there was not a single unders tanding on the meaning of the concept "transfer of 
technology", since most submissions listed activ ities under technical assistance to developing 
countries, funded through their resp ective ODA or competent authoriti es.  As stated in Canada's 
submission, domestic incentives for the transfer of technology might occur in the form of intellectual 
property embedded in the transferred goods and services.   He was not sure he could concur with this 
interpretation of the meaning of transfer of technol ogy since, in his view, this was trade in goods and 
services.  Mere trade in goods and services did not necessarily lead to transfer of technology. 
176. He said that Switzerland's submission focused  on the activities of the Swiss Official 
Development Assistance Programme, not many of whic h seemed to lead to transfer of technology to 
LDCs in the sense of Article 66.2.  Its paragraph 16 described the Swiss Import Promotion Programme, which was aimed at enhancing exports from  LDCs into Switzerland.  While this could be IP/C/M/55 
Page 32  
 
  an interesting trade promotion activity, it was not necessarily leading to transfer of technology.  There 
were certain areas which needed further analysis  like, for example, fostering compliance by 
Mozambique's exporters with EUREPGAP standard s or good agricultural practices.  While there was 
a considerable amount of training activities, they di d not necessarily lead to transfer of technology.  
Paragraph 23 of the Swiss proposal described trai ning courses on intellectual property supported by 
Swiss financing, which took place at WIPO headquar ters in Geneva and then at the Swiss Federal 
Institute of Intellectual Property in Berne.  Th is seemed to be a good education and awareness 
exercise, but not necessarily transfer of technology.   According to paragra ph 30, Switzerland provided 
assistance to LDCs for preparing and enforcing inte llectual property laws and regulations, as well as 
for supporting their domestic offices.  He said that ther e was also a lengthy list of projects in different 
countries, although there was no additional informa tion on their nature.  For example, there was a 
project to set up an anti-retroviral  health system in Mozambique, which was carried out by Médecins Sans Frontières, Switzerland.  This activity see med to go in the right direction and was very 
important.  However, there were other activities, which were not really covered by Article 66.2. 
177. He continued that Japan's submission was framed under the Japanese official development 
assistance budget and appeared more in line with tec hnical cooperation than transfer of technology.  
There was considerable assistance for export, le gal and enforcement issues, such as an IP 
Enforcement Workshop for Indonesian Officials.  He  said that he failed to see how these capacity-
building activities could lead to transfer of technology.  There should be clearer criteria for the preparation of these submissions.  He said that paragraph 7 of the Japanese submission described 
measures to combat the distribution of counterfeit me dicines and this was also of great importance, 
but did not lead to transfer of technology.   
178. He said that the lengthy EC submission attempted to define "technology transfer".  According 
to its paragraph 4 technology transfer referred to the ways and means through which companies and 
organizations acquire technology from foreign sour ces.  However, he did not agree with this 
definition or with the statement that the private sector was the main source of technologies, since 
technology production was normally subsidized by g overnments and later on acquired by the private 
sector.  The report listed incentives, including di rect investment, licensing, franchising, sub-
contracting, technical assistance, and legislative re form.  He wondered what kind of legislative reform 
this referred to.  Also management of standardi zation was included in the list as a means to promote 
technology transfer.  He did not think that trade and technological and scientific goods per se  
promoted transfer of technology.  He cited the example of the "Clinical Trial Unit of Prince Leopold 
for Tropical Medicine", where there was no list of beneficiary countries and therefore it was not 
obvious where the relevant technologies had been transf erred to.  He said that it would be important to 
harmonize the presentation of the submissions in orde r to offer concrete information related to the 
provisions in Article 66.2.  In his view, Member s remaining silent shoul d not be construed as 
endorsing the reports as a proof of compliance with Article 66.2. 
179. The representative of China
 said that the annual review was useful to ensure that developed 
country Members effectively provide the incen tives to encourage technology transfer to 
least-developed country Members, as provided in Article 66.   He said that his delegation appreciated the efforts made by Members responding to this annual review, but that it had been difficult to 
examine the lengthy submissions and to understand the link between the listed activities and transfer 
of technology.  His delegation wished to take some  time to study the submissions and make additional 
comments at the Council's next meeting. 
180. The representative of Canada
 concurred with the representative of Brazil that there were 
different approaches to defining "transfer of t echnology" and to presenting information.  These 
differences happened even at the domestic level,  where agencies had differing views and, for 
example, some provided incentives relating to actua l technologies and others for related skills.  
Canada had a number of programmes to encourage tr ansfer of technology by Canadian enterprises  IP/C/M/55 
 Page 33 
 
 
  and institutions.  However, occurren ces of technology transfer were private to private projects and the 
information could not be shared due to its proprieta ry and/or commercially sensitive nature.  He said 
that since each Member had a different approach, the harmonization of reports might not be the best 
way to address this situation. 
181. The representative of the United States  said that the comments by Lesotho, on behalf of the 
LDC Group, had been very helpful and provided a b asis for the discussion on the utility of the reports 
submitted under Article 66.2.  He said that his dele gation was ready to meet with the LDC Group to 
answer any questions they might have with rega rd to the submission of the United States in the 
margins of the next Council's meeting, and to hear  any suggestion on how in the future his delegation 
could continue to improve its  reporting.  To refine this  year's report, it had tried to move activities that 
looked to it to be more about technical coopera tion into the separate report concerning its activities 
under Article 67.  It had provided additional content with respect to incentives for technology transfer 
in the field of health, since it was of particul ar interest and concern to many LDC Members. 
Furthermore, the report exclusively focused on activ ities to provide incentives for technology transfer 
specifically to LDC Members.  While Article 66.2 was of interest to all Members, his delegation 
believed that it was important to focus its reportin g with respect to activities on the Members that 
were clearly identified in the provision and it inte nded to follow this approach in the future. 
182. The representative of Switzerland  said that his delegation welcomed the substantive inputs 
from other delegations.  All Members could learn from each other when trying to find ways and 
means to best implement Article 66.2.  This is why developed country Members had agreed to the 
Decision on the Implementation of Article 66.2 of the TRIPS Agreement, which required them to 
report annually on the implementation of that provi sion.  Therefore, his delegation welcomed the 
numerous reports submitted by ot her developed country Members, which were a useful source of 
information and inspiration.  He noted that th e obligation of developed countries under Article 66.2 
was to provide incentives to their enterprises and institutions for the purpose of promoting and 
encouraging technology transfer to least-developed c ountry Members.  It was not their obligation nor 
were they in a position to provide for technology tran sfer themselves or to ensure that technology is 
actually transferred.  Furthermore, private companie s and institutions could only be expected to invest 
in and transfer their technology to a specific count ry, if a number of framework conditions in the 
beneficiary country did actually exist.  These conditions  fell largely outside the sphere of influence of 
Switzerland or any other WTO Member under the provisions of Article 66.2.   
183. He agreed with the delegate of Brazil that  there was no commonly accepted definition of the 
term "technology transfer" or what was comprised or  not, but did not interpret the term in such a 
narrow sense as had been proposed by Brazil.  In  his view, incentives for the purpose of promoting 
and encouraging technology transfer to LDC Members from Swiss enterprises and institutions 
included, in addition to incentives and activities directed  at the provision of technical equipment in the 
industrial sector, capacity-building in LDCs to en sure the necessary framework  conditions which were 
necessary for technology transfer.  This included technology transfer in the health sector and 
development of administrative institutions.  He nce, Switzerland provided incentives in numerous 
sectors and was actively engaged in the field of  training and research activities contributing to 
sustainable development in LDCs, which in turn wo rked as an incentive to ou r companies to transfer 
their technology.  Switzerland believed that assi stance in sustainable development should be 
comprehensive and should not be limited to certain areas of technology transfer as Brazil had chosen 
to interpret in a narrow manner. 
184. His delegation's updated report described the Sw iss activities and incentives in detail.  He 
noted some examples listed in Annex I to the comm unication, where technology had been transferred 
by Swiss entities to LDCs as a direct conseque nce of the incentives provided for by the Swiss 
Government:  in Bangladesh, the Swiss company Sk at Consulting had provided for arsenic free water 
harvesting technologies;  in Burkina Faso, the Swis s Institute of Technolog y provided for technology IP/C/M/55 
Page 34  
 
  and know-how in waste water management;  in Ne pal, Skat Consulting had headed a project on 
improvement of energy efficiency in the brick sect or;  in Tanzania, the company ITECO Engineering 
Limited had provided for technology and know-how tran sfer in the area of construction of bridges and 
roads.  He reiterated his country's commitment to participate constructively in the review of the 
reports and to engage in the provision of incentives for an enhanced technology transfer. 
185. The Chairman
 said that, based on the discussion under this agenda item, the Secretariat might 
follow up with the LDC Group concerning its request for a seminar or colloquium possibly in cooperation with other organizations like the ICTSD , and that he had taken note of the interest 
expressed by the Brazilian delegation in this being an  open-ended activity.  He  urged those developed 
country Members that had not yet provided reports to do so.  He reiterated his intention to provide an 
opportunity, at the Council's next meeting, for Memb ers to make further comments on the information 
submitted for this meeting that they had not yet been able to study. 
186. The Council took note
 of the statements made and so agreed . 
L. TECHNICAL COOPERATION AND CAPACITY -BUILDING  
187. The Chairman  recalled that the Council had agreed, at its meeting in June 2007, to hold its 
annual review of technical cooperation at the present meeting.  In preparation for this annual review, 
developed country Members had once more been requ ested to update information on their technical 
and financial cooperation activities relevant to the implementation of the TRIPS Agreement in time 
for the present meeting.  Other Members who had also made available technical cooperation were 
encouraged to share information on these activities if they so wished.  The Secretariat had issued on 
23 July 2007 an airgram (WTO/AIR/2880) remindi ng Members of this request.  In addition, 
intergovernmental organizations observers to th e Council as well as the WTO Secretariat had been 
invited to provide information. 
188. The Council had received information from th e following developed country Members:  
Switzerland;  Japan;  the European Communities a nd individual member States and agencies (namely 
Austria, the Czech Republic, Finland, France, Germ any, Hungary, Italy, Poland, Portugal, Slovenia, 
Spain, Sweden, the United Kingdom and the European  Patent Office);  as well as from New Zealand, 
Norway, the United States;  Canada and Australia  (being circulated in document IP/C/W/496 and 
addenda).  Updated informa tion had been obtained from the following intergovernmental 
organizations:  UNCTAD, UPOV and WIPO (b eing circulated in document IP/C/W/495 and 
addenda).  In addition, the IMF had informed the Chairman, by means of a letter dated 27 July 2007, 
that it did not undertake any TRIPS-related technical assistance and, hence, did not have any useful 
information to provide to the Council.  Update d information on the WTO Secretariat's technical 
cooperation activities in the TRIPS area coul d be found in document IP/C/W/494. 
189. He also recalled that paragraph 2 of the TRIPS Council's 2005 decision on the "Extension of 
the Transition Period under Article 66.1 for Least-D eveloped Country Members" provided that "with 
a view to facilitating targeted technical and financ ial cooperation programmes, all the least-developed 
country Members will provide to the Council for TRI PS, preferably by the 1 January 2008, as much 
information as possible on their individual priority needs for technical and financial cooperation in order to assist them taking steps necessary to impl ement the TRIPS Agreement".  Pursuant to this 
provision, the Council had received communications fro m Sierra Leone and Uganda on their priority 
needs for technical and financial cooperation ( documents IP/C/W/499 and 500, respectively). 
190. The representative of Brazil
 said that, while in his view many of the activities presented under 
Article 66.2 should have been presented under Artic le 67 on technical coopera tion, he had doubts as 
to whether the activities presented under Article 67  actually facilitated the implementation of the 
TRIPS Agreement.  Law harmonization should not be an objective of technical cooperation under  IP/C/M/55 
 Page 35 
 
 
  Article 67.  It was not an objective of the Agr eement.  Article 1.1 indicated that it accepted the 
diversity of Members' laws, a point that had been made by developed and developing country 
Members in several instances in the Council's discu ssions.  For example, in the context of the 
discussions on GI extension and GI registry, the United States had on several occasions indicated that it would not accept any overriding of the territorial nature of the patent law.  Therefore, he did not 
understand how law harmonization could be the prio rity of European Patent Office technical 
assistance with a view towards assisting developing countries in the implementation of the Agreement as a whole.  In this regard, he made a number of poi nts in connection with parts of an advance copy of 
the EC report which were not retained in the final version of the document. 
191. Turning to the US contribution, he said that th e report referred to many training programmes, 
most of them concentrated on enforcement.  The long list of activities included USPTO GIPA 
enforcement of IPR programmes with a list of partic ipating developing countries from Eastern Europe 
and Central Asian countries.  It also included a DR-CAFTA Roundtable on border enforcement of 
IPR.  These programmes also addressed customs-to-cus toms best IP practices and the identification of 
pirate music products.  While not denying that ther e was an enforcement chapter in the Agreement, 
this was not the type of technical cooperation that was meant by Article 67.  As already indicated on 
several occasions and in different forums, his dele gation understood that the Agreement contained a 
balance of rights and obligations, as well as flexib ilities.  Technical cooperation was meant to assist 
developing countries in complying with the Agreem ent as a whole, and not only "cherry picking" its 
specific provisions and concentrating technical coope ration activity, to a certain extent, in a self-
interested way. 
192. The representative of the United States
 thanked the delegations of  Uganda and Sierra Leone 
for their submissions in connection with the Counc il's decision under 66.1 of the Agreement.  Based 
upon an initial review, he thought that these needs evaluations were helpful in being cogent and a 
comprehensive articulation of what these Members cons idered to be their priority needs.  He found 
them to be a useful basis for bilateral engage ment, through his country's development agencies 
present in those countries, to evaluate additional assistance that could be provided. As many of the 
identified needs were relevant to the work being un dertaken in other organizations, notably in WIPO, 
he encouraged Uganda and Sierra Leone to consid er looking to those organizations as well.  He 
encouraged other LDCs to follow suit. 
193. The representative of Sierra Leone  welcomed the opportunity to present to the TRIPS Council 
a comprehensive assessment of Sierra Leone's prior ity technical and financial cooperation needs, as 
well as a plan of action, in relation to efforts to  reform intellectual property protection laws.  In 
making the present communication to the Council (IP/C /W/499), the Government of Sierra Leone had 
been guided by the Council's Decision of 29 N ovember 2005 (IP/C/40), which had extended the 
deadline for compliance with the TRIPS Agreement from 1 January 2006 to 1 July 2013, and called 
on LDCs to submit their needs assessment for TRIPS compliance, where possible, by 1 January 2008.  
Following Sierra Leone's successful  trade policy review in 2005, one of the key policy reforms on the 
Government of Sierra Leone's agenda had been the refo rm of its intellectual property rights laws.  What 
then had become the IPR reform project had two br oad policy objectives:  (i) to support private sector 
development in Sierra Leone as part of a wider proces s of legislative and admini strative reform;  and (ii) 
to ensure compliance with TRIPS and other inte rnational and regional obligations.  The looming 
deadline to comply with the Agreement by 1 January  2006 had been an important factor in the second 
imperative for reform. 
194. However, Sierra Leone's low technological base,  its institutional weaknesses, and its pressing 
needs for human, social and economic development ha d severely constrained it's attempts to use IPRs 
as tools for development, much less to implement th e TRIPS Agreement.  The Government of Sierra 
Leone therefore wished to underscore that it woul d avail itself of the maximum flexibility in the 
implementation of the Agreement through its laws a nd regulations, as set out in the Preamble to the IP/C/M/55 
Page 36  
 
  Agreement.  Given the two policy objectives, a pr oject had therefore started with modest funding 
from the United Kingdom's Department for Internati onal Development, for which the Government of 
Sierra Leone was very grateful.  The IPR reform process had been spearheaded by the Ministry of 
Trade and Industry (MTI) and a multidisciplinary Working Group on Intellectual Property (IPWG) 
had been established and convened.  The IPWG had directed that IP reform should take into account 
(i) the fact that IPRs should be a tool for Sie rra Leone's development and an integral part of 
sustainable policies on science, technology, culture and innovation;  and (ii) the effect of TRIPS and ARIPO treaties on the country's policy objectives within the context of the Poverty Reduction 
Strategy and the National Vision 2025.   
195. The IPWG had been assisted in this refo rm process by international experts on IP 
administrative structures and laws.  Options for le gislation on patents, trad emarks and copyright had 
been produced and validated;  a draft national IPR policy had been developed and would be the 
subject of consultations later in the year;  and drafting of new legislation had now commenced on 
copyright, patents and industrial designs, and trad emarks.  A legal clinic for the bench and the bar 
would take place in late November 2007 throug h a video conference with colleagues from the 
American University in Washington DC.  Aware ness raising and consultations would take place on 
other forms of IP such as geographical indications, plant variety protection and folklore and traditional knowledge in early 2008.  In the mean time, agreement had already been reached with 
WIPO on the development of a national IPR strategy  which would get underway in December 2007.   
196. Sierra Leone's progression from post-conflict rec onstruction to a development-oriented phase 
meant that it must now focus on enabling access by SMEs  to a wide range of IPRs in order to develop 
the most promising sectors of its economy, taking into account the aspirations expressed in its Vision 
2025.  The application of scientific research in the agriculture and minerals industries;  the promotion 
of innovation in the informati on technology, musical and textile design sectors; and the 
encouragement of transfer of technology between foreign and domestic firms,  were uppermost in the 
crafting of laws and policy on IPRs for Sierra Leone. 
197. In light of the Council's decision of November  2005, Sierra Leone had taken the opportunity 
to build on its current IPR reform programme by car rying out an assessment of its priority needs for 
compliance with the TRIPS Agreement.  In July  2007, a mission had been jointly undertaken by 
Saana Consulting, Sierra Leone's existing expert in  the IPR reform process, and the International 
Centre for Trade and Sustainable Development (ICTSD)  in which consultations with key stakeholders 
had been conducted around priority capacity building needs.  Annex A in the current submission to 
the Council set out the resulting needs from that Needs Assessment exercise using the diagnostic 
toolkit developed by Saana and the ICTSD.   
198. In this communication of its priority needs, the Government of Sierra Leone proposed the 
development and implementation of a medium term national IP capacity building programme, 
beginning with an initial five-year phase from July 20 08 to July 2013.  Section 1 of the report detailed 
the policy and legal frameworks which focused on the need to establish a small policy unit 
specializing in IPRs within the MTI.  Section 2 covered IP administrative arrangements central to 
which was the eventual establishment of an efficien t national IP office.  Section 3 dealt with IP 
enforcement and regulation including the traini ng of enforcement agencies.  In section 4, 
Sierra Leone's aspiration to become a science and technology driven nation, as expressed in its Vision 
2025, was given prominence, with a focus on the needs of SMEs and the promotion of IP as a tool for 
development.   
199. Annex B outlined a programme planning matrix  in project form of the needs already 
identified in Annex A.  The programme approach the Government of Sie rra Leone sought had the 
following built-in key design features:  (i) an initial heavy emphasis on building the capacity of 
relevant Government agencies to take the lead in co-coordinating, implementing and monitoring  IP/C/M/55 
 Page 37 
 
 
  projects and activities within the programme and th e linkages to related Government policies and 
programmes;  (ii) a medium-term strategic common  planning framework, with a gradual level of 
sustained activity supported by the Government and its development part ners over the programme 
period rather than a series of ad- hoc events, peaks and interruptions;  (iii) a strong development focus 
to the programme, emphasizing the need to involve a broad range of stakeholders from across 
government, the private sector and civil society and to gain their support for the protection of IPRs in 
the country by raising awareness and demonstrab ly contributing to national social and economic 
goals, building a sound and viable technological base  and meeting international obligations;  (iv) 
harmonized, predictable and transparent arrange ments for programme funding, management and 
coordination by development part ners, with emphasis on upgrading and utilizing the Government's 
own public financial and procuremen t systems as far as possible;  and (v) mechanisms for regular 
multi-partner joint reporting, review and evaluation of a common set of expected results, impacts and 
outcomes, as opposed to multiple discrete sy stems which place a heavy and unnecessary burden on 
the lead government agencies. 
200. The Government of Sierra Leone expected  that the successful implementation of the 
proposals detailed in the needs assessment required technical cooperation, financial assistance and 
thorough consultations between the Government, na tional stakeholders, international organizations 
and the country's development partners.  It was he r country's hope that it would find willing partners, 
who would join it in meeting the needs as set out in the current communication to the Council and she looked forward to responses and an y questions from other Members. 
201. The representative of Uganda
 recalled that the TRIPS Council Decision of 29 November 2005 
had extended the transition period for LDCs to im plement the TRIPS Agreement until 1 July 2013.  
Paragraph 2 had invited LDC Members to provide as much information as possible to the Council, 
preferably by 1 January 2008, on their individua l priority needs for technical and financial 
cooperation in order to assist them in taking steps necessary for implementing the Agreement.  It was 
against this background that Uganda was presen ting its needs assessment (IP/C/W/500).  It was 
Uganda's hope that developed count ry partners would also live up to  its expectations in responding 
positively by providing the required technical and fi nancial assistance and by promoting the needed 
technology transfer for the benefit of Uganda during this transition period.  Uganda was fully aware of 
its international obligations and th e need to implement the Agreement.   However, there were several 
constraints that had to be addressed.  In this re gard, Uganda's communication was a reflection of the 
priority needs and set out a plan of action for tec hnical and financial assistance seen as a pre-requisite 
to implement the Agreement by Uganda at  an appropriate time in future.   
202. Uganda's communication pointed out that IP was a cross-cutting issue where complementary 
policies on, for instance, health, agriculture, envi ronment and competition were  equally important in 
the context of implementing the Agreement.  In th is regard, implementation needed to be undertaken 
comprehensively and coherently with other interna tional arrangements as well as regional trade and IP 
arrangements. 
203. It was important to align domestic policies with  rapidly changing technological trends in the 
global economy.  At this stage of Uganda's path to  development, it was necessary for the country to 
seek and receive support from the international comm unity on the use and management of IPRs in 
combination with well designed government support measures that  addressed domestic development 
needs such as the promotion and establishment of  a creative and innovative domestic industry and the 
development of its technological base.  Uganda belie ved that IPRs should be a tool for development 
and an integrated part of national policies and progr ammes aimed at poverty eradication.  In taking the 
steps necessary to advance the implementation of the TRIPS Agreement, Uganda emphasized the importance of special and differential treatment, es pecially in terms of its explicit entitlement to 
maximum policy flexibility in building a sound and viab le technological base for the benefit of its 
people. IP/C/M/55 
Page 38  
 
  204. Article 66.2 clearly stated that developed country Members should provide incentives to 
enterprises and institutions in their territori es for the purpose of promoting and encouraging 
technology transfer to LDCs.  LDCs, including Ug anda, had already waited for the implementation of 
these promises.  For countries like Uganda, technology  transfer and capacity building would be very 
significant to transform their economies and to a llow people to fully benefit from the multilateral 
trading system.  It was therefore important that the developed country Members faithfully provide the 
kind of technical and financial incentives that woul d encourage technology transfer and development.  
Uganda, like other LDCs, experienced capacity co nstraints in this area and called on developed 
country Members to comply with their promises and obligations to address this issue that was critical 
to its development.   
205. It was Uganda's expectation that developed countries would reorient their technical and 
financial assistance to reflect what had been presented in this Council.  An evaluation and monitoring 
mechanism should be established in the WTO under th e TRIPS Council to make sure that the LDCs' 
requests were responded to. 
206. The representative of China
 said that information on action taken to address priority needs 
identified by LDCs should be essential components of  future notifications from developed country 
Members of the Council.  He welcomed the submi ssions from several developed country Members on 
their technical cooperation and capacity building ac tivities, which would help to provide a better 
understanding of how they were fulfilling their oblig ations under the TRIPS Agreement.  He recalled 
that Article 67 provided that "suc h cooperation shall include assistance in the preparation of laws and 
regulations on the protection and enforcement of intellectual property rights as well as on the 
prevention of their abuse".  As to the objectiv es of technical cooperation and capacity building 
activities, such activities should not be limited to the implementation of TRIPS obligations, but also 
focus on prevention of IPR abuses and on the rights  provided to developing countries, including how 
to make full use of the flexibilities contained in the Doha Ministerial Declaration on the TRIPS Agreement and Public Health. 
207. His understanding was that the reports on t echnical cooperation submitted for this and 
previous meetings should only contain factual and objective information on relevant activities, as said 
by the Chair at the Council's meeting in June  2007.  Law harmonizati on and harmonization of 
examination practices should not be an objective as th ey would be against the principle of Article 1.1.  
In this regard, he made a number of points in co nnection with the parts dealing with the activities of 
the European Patent Office of an advance copy of the EC report which were not retained in the final 
version of that document. 
208. The representative of Lesotho, speaking on behalf of the LDC Group in the WTO
, recalled 
the contents of paragraph 2 of the decision of 29 November 2005 on the Extension of the Transition 
Period under Article 66.1.  It called on LDCs to provide to the Council for TRIPS preferably by 
1 January 2008, as much information as possible on their individual priority needs for technical and 
financial cooperation in order to help them take necessary steps to  implement the TRIPS Agreement. 
To this end, the LDC Group sincerely thanked th e delegations of Uganda  and Sierra Leone, two 
Members of the Group, that had made their reports  about their activities regarding implementation of 
Article 66.2 of the Agreement.  At the same time, the LDC Group requested that flexibilities be 
extended to those LDCs that might not be able to  submit their needs assessment by January 2008 so 
that they could submit even after this deadline.   The LDC Group requested the developed country 
Members to provide LDCs with the requisite t echnical and financial assistance and technology 
transfer that the individual LDC's country specifi c needs assessment had identified.  Often donor 
country activities failed to meet the specific need s of LDCs.  They should address the actual specific 
needs that would enable LDCs to  build the necessary infrastructure which was a major basis for actual 
implantation of the Agreement.  IP/C/M/55 
 Page 39 
 
 
  209. He called for an effective evaluation and mon itoring mechanism in order to meticulously 
monitor and evaluate whether the LDCs' assessed  needs had been responded to.  The LDC Group 
appreciated very much the kind of help and support th at the LDCs received in matters related to the 
Agreement which was one of the areas where most assistance was needed. 
210. The Chairman  said that the deadline of 1 January 2008 was not fixed.  He recalled that the 
wording of paragraph 2 of the decision on the extens ion of the transition period was "preferably by 
1 January 2008".  While an earlier submission was to be preferred, it was possible to go beyond that 
date. 
211. The representative of the European Communities  welcomed the communications made by 
Sierra Leone and Uganda.  While hi s delegation was ready to look into them, it would be useful to see 
also other LDCs' submissions.  Therefore, it might be  appropriate to put this issue on the agenda of 
the Council's next meeting with a view to an in -depth discussion on the basis of all contributions 
received from all LDCs.  This would enable those LDCs which had not yet submitted their priority 
needs to do it in advance of that meeting. 
212. The delegation of India  said that he felt that reports should refrain from value judgement in 
keeping with the spirit of Article 67.  They shoul d confine themselves to being factual rather than 
patronising and judgemental. 
213. The representative of Japan  said that his country attached importance to technical cooperation 
as well as transfer of technology, which would be  an essential basis to promote protection of 
intellectual property on a global basis.  Intellectua l property was intangible in nature, which meant 
that its value was in the form of an idea, inven tion, expression or know-how, rather than in physical 
facilities like water, electricity, building, machines,  and so on.  Therefore, the creative mind and 
knowledge of a human being was highly important in the intellectual property arena.  Such 
characteristics of intellectual property might relate to the way of performing technical cooperation or 
transfer of technology.  Japan had been putting emphasis on the enhancement of capacity building for 
people in charge of intellectual property in this co nnection.  To be specific, he introduced the "One-
Village One-Product Project" activities.  This project assisted each concerned village to form capacity 
to make and sell marketable local products and su ccessful examples had been generated so far under 
this project.  Copies of DVDs explaining this "One -Village One-Product Project" were now available 
and he invited anybody interested in them to contact his delegation. 
214. The representative of Egypt  said that Sierra Leone a nd Uganda's submissions and 
interventions clearly showed how seriously the tw o countries were taking their international TRIPS 
obligations.  He joined them in calling upon deve loped countries and the development aid community 
at large to lend them all necessary support and al so encouraged other LDCs to undertake similar 
endeavours in order to fully integrate in the international IP system. 
215. The representative of Sierra Leone  said that he noted some of the comments from other 
Members regarding their own particular capacity building provisions and he would explore those 
hopefully in the near future and he looked forw ard to working with other WTO Members regarding 
his country's technical and financial needs on moving forward on its IPR agenda. However, he 
underscored that what his country needed was pred ictable long-term and transparent funding rather 
than ad hoc or short-term assistance.   
216. The representative of China  said that the Article 67 review was not a unilateral process.  It 
should be governed by the principles and the ma ndate of the multilateral process under Article 67 
review.  He referred to the minutes of the Council' m eeting in June 2006, paragraph 159, in which the 
European Communities had indicated that, by reque sting the item on enforcement to be put on the 
agenda again, it did not wish to be "negative" or en gage in "finger-pointing".  He also referred to the IP/C/M/55 
Page 40  
 
  minutes of the October 2006 meeting, which showed that the EC delegation had repeated that the 
objective was not finger-pointing.  However, he fe lt that the same rule should apply in this area. 
217. The Chairman
 said that he would provide Members of the Council an opportunity at the next 
meeting to make further comments on the informatio n submitted for this meeting that they might not 
yet had been able to study. He also urged ot her LDC Members to provide information on their 
individual priority needs for technical and financia l cooperation preferably by 1 January 2008, noting 
that this was not a fixed deadline.  In order to fac ilitate the discussions and follow-up to this matter, he 
proposed that the items on LDCs' priority needs fo r technical and financial cooperation be placed on 
the agenda of the Council's next meeting as a separate agenda item. 
218. The Council took note of the statements and so agreed . 
M. ENFORCEMENT OF INTELLECTUAL PROPERTY RIGHTS (PART III OF THE TRIPS  AGREEMENT ) 
– COMMUNICATION FROM JAPAN  
219. The Chairman  recalled that this item had been put on the Council's proposed agenda at the 
request of the delegation of Japan, dated 28 September 2007.  The Council had received a 
communication from Japan entitled "Enforcement of Intellectual Property Rights" (IP/C/W/501). 
220. The representative of Japan  said that he was pleased to have an opportunity to share Japan's 
experiences regarding border measures to enforce IPRs , and hoped that the insights into the measures 
it had taken against counterfeit a nd pirated goods could be useful for other Members as regards the 
implementation of related provisions  of the TRIPS Agreement.  Customs authorities were expected to 
play a vital role in combating global counterfeiti ng and piracy.  The tables on page 2 of document 
IP/C/W/501 illustrated  the recent trend of customs seizures with a steadily increasing number of 
suspension cases, whereas the number of suspended item s had remained at the same level for the last 
five years.  This indicated a significant increase of shipments in small lots.  Postal delivery was the 
main channel for the importation of counterfeit a nd pirated goods into Japan, partly due to the 
development of e-commerce which increased impor tation by individuals over the Internet.  As 
manifest data and entry data were not available,  considerable human resources were required to 
inspect international postal shipments.  In term s of the type of rights, trademark infringement 
accounted for the vast majority of cases.  As to  the type of commodities, the Japan Customs had 
suspended a large number of fake brand name products, such as bags, key-holders, clothes and 
watches. 
221. In order to suspend goods infringing IPR at th e border more effectively, emphasis had been 
placed on countermeasures against shipments in small lots, as explained in section III of the 
communication.  Since a large amount of cargo was disguised as for personal use, the Japan Customs 
initiated enforcement exercises regardless of the numbe r of items involved.  Due to this tightened 
enforcement, Japan had successfully  suspended lots of counterfeits at the overseas mail sub-branches.  
Institutional capacity had also been strengthened an d IPR specialized teams had been allocated to key 
overseas mail sub-branches.   
222. The improvement of customs officers' expertise was another key element.  Section IV of the 
communication explained related measures, based on the utilization of information systems and 
human resource development.  The Japan Customs we re utilizing two different information systems:  
the Customs Intelligence Database System (CIS), and the Intranet bulletin board system.  When front-
line staff suspected that cargos contained counterfe it or pirated goods, it could access the CIS in order 
to ascertain the risk level of the cargos, using the accumulated information.  While the CIS was based 
on both past records and advance information, th e new Intranet bulletin board system placed an 
emphasis on raising awareness levels of front-line sta ff.  These two systems had greatly contributed to 
improving both the expertise and awareness of the fr ont-line staff by enabling them to obtain the  IP/C/M/55 
 Page 41 
 
 
  necessary information on a timely basis.  With re spect to human resource development, Japan's 
educational programmes for customs officials played a vital role.  For example, the Customs Training 
Institute provided intensive training programmes sp ecialized in IPR enforcement.  These programmes 
included legal studies and practical training.  In order for the participants to apply the acquired 
knowledge, they were provided with case studies at th e end of the programme.  In addition, the Japan 
Customs had attached great importance on OJT prog rammes at the IPR central office in the Tokyo 
Customs.  Through the OJT programmes, inexperienced staff could learn the practical issues from 
experienced IPR investigators. 
223. The representative of the United States  welcomed Japan's communication, as well as the 
continued dialogue in the Council on the implementa tion of the enforcement provisions of the TRIPS 
Agreement and on the experience of individual Members in applying those provisions effectively 
within national jurisdictions.  The concepts outlin ed in a recent paper presented jointly by the 
United States, the European Communities, Switzerland and Japan represented a reasonable way of approaching a discussion of Part III of the Agreem ent.  While he recogni zed that there was no 
consensus in the Council on these questions, enfo rcement should remain a legitimate item for 
discussion upon the request of indivi dual Members.  Recent meetings had demonstrated that it was 
possible to undertake this discussion in a reas onable and fact-based manner.  The discussion was 
clearly relevant to Japan's implementation of Part  III of the Agreement.  While the communication 
indicated an increase in suspensions  with respect to small lot shipme nts, the situation regarding large 
shipments remained unclear.  He wa s therefore interested to know wh at accounted for the distinction 
between the large and the small shipments.  Gi ven the increased number of suspended shipments 
experienced by Japan, he wondered if there ha d been a corresponding increase in the number of 
applications for suspension.  The concept of the In tranet bulletin board system containing specialized 
intellectual property information was a very useful concept for consideration by the United States and 
other Members.  He asked if the bulletin board func tion was available at all ports of entry in Japan.  
Finally, regarding the training seminars with right  holders mentioned in paragraph 7 of Japan's 
communication, he asked whether the seminars to ok place at selected intervals or whether it was 
possible for a right holder to initiate one of th ese programmes when a new product was about to be 
introduced into the Japanese market or, for example, when the right holder detected a new trend with 
respect to counterfeiting or piracy. 
224. The representative of Chinese Taipei
 said that Japan's communication identified some 
important trends in the trade in  counterfeit and pirated goods, such as shipping through the means of 
international postal services, or by being disguised as personal use items.  Part of the reasons for this 
was the prevalence of e-commerce.  It deserved Me mbers' attention to identify whether the same 
trends existed in their own countries.  The co mmunication shared some important methods for 
combating counterfeiting and piracy, including stre ngthened institutional capacity, the improvement 
of customs officers' expertise, the involvement of right holders, and the establishment of related 
databases.  It was useful to deal with counterfe iting and piracy through the exchange of Members' 
experiences. 
225. The representative of Canada  said that sharing experiences with  respect to enforcement in the 
Council was useful for all Members.  It was particularly timely for his delegation as it was in the final stages of an extensive review of its IPR enforcem ent regime.  Two separate parliamentary committees 
had recently reviewed the economic and the health  and safety aspects of counterfeiting and piracy.  
Growing e-commerce activities posed challenges for bor der authorities as they had to perform duties 
within their limited resources.  Improving enfor cement authorities' expertise through training was 
therefore an important investment toward in creasing cases of successful interception of infringing 
goods.  Counterfeiting and piracy was a global issu e effecting all WTO Members.  Members could 
learn from each others' experiences.  He encouraged  further cooperation in this regard by sharing 
experiences on infringement trends and effective enforcement measures.  IP/C/M/55 
Page 42  
 
  226. The representative of the European Communities
 said that border enforcement had become a 
challenging and complicated issue in the fight agains t counterfeiting and piracy.  The recent trend in 
seizures of counterfeit and pirated products by th e Japan Customs showed that the number of cases 
had been multiplied by approximately three over the last five years, while the number of items suspended at the border had remained at the same level.  It was worrying that international postal 
shipments had become the main method of tran sporting counterfeit and pirated goods.  The Japan 
Customs Intelligence Datab ase System created in 1991 was useful for analyzing various types of 
information related to customs operations, includi ng the import and export of IPR infringing goods.  
The new Intranet bulletin board system that special ized in IPR enforcement was another interesting 
tool to share information.  Training activities for cu stoms officers were very important to ensure the 
effective fight against counterfeiting and piracy at  the border.  The drawi ng up of annual statistics 
provided useful information in support of analysis  of counterfeiting and piracy.  In the European 
Union, the numbers of counterfeit and pirated goods had increased dramatically recently.  In 2006, 
120 million articles, involving 37,000 cases, had been seized by customs.  He said that his delegation remained committed to exchanging views and expe riences on IPR enforcement in the Council and 
hoped that all Members would show the same engagement.  The objective was to address IPR 
enforcement in good faith and in a constructive spir it with a view to sharing experiences and best 
practices. 
227. The representative of India
 said that the TRIPS negotiations had been long and rather 
arduous.  Negotiators' concerns relating to enforc ement of IPRs were evident from the chapeau 
provisions of Section 1 of Part III.  Article 41.1 me ntioned that "these procedur es shall be applied in 
such a manner as to avoid the creation of barriers to legitimate trade and to provide for safeguards 
against their abuse".  This sense of caution also dominated the provisions on border measures.  Furthermore, Article 41.5 provided critical insights into understanding the delicate balance of rights 
and obligations that was achieved in negotiating the TRIPS Agreement and the role therein of Part III.  
Any discussion of Part III had to bear in mind th at the existing text had achieved a very careful 
balance between the interests of right holders , on the one hand, and those of wrongly accused 
infringers, on the other hand, so as not to cause obstacl es to legitimate trade.  Article 41.5 also took 
into account the concerns about limited resources of  developing country governments to enforce IPR 
laws relative to other laws.  Furthermore, the text of Part III recognized that IPRs were private rights 
and action for their enforcement had ultimately to be taken by the right holders themselves.  The 
proponents of any discussion on Part III of the TRIPS Agreement in the TRIPS Council should bear 
this in mind. 
228. The representative of Brazil
 said that enforcement of IPRs was not a permanent item on the 
Council's agenda.  In his view, the content of Japan's communication was not really about border 
enforcement of IPRs.  The only subject matter of interest to his delegation with regard to the 
communication was whether Japan's regulations and practices in respect of border measures were 
compliant with the TRIPS Agreement.  In his vi ew, such issues were best discussed as part of 
Members' obligation to notify laws and regulations under Article 63, so that their compatibility with 
the rights and obligations under the TRIPS Agreement could be scrutinized. 
229. He raised a series of questions in regard to the compatibility of Japan's measures taken with 
the Agreement.  The chapeau of Article 41 reflect ed an overriding principle according to which the 
measures adopted to implement Part III of the Agreement were to avoid the creation of barriers to 
legitimate trade and to provide for safeguards agains t their abuse.  He asked how Japan's regulations 
and practices with respect to border measures co mplied with this obligation, given that the 
enforcement measures were in reality trade meas ures taken by customs officials at the border.  
Furthermore, the whole of Part III referred to pr ocedures concerning the enforcement of IPRs which 
were to be understood as judicial procedures, and no t self-initiated procedures by  customs officials.  
These judicial procedures were carefully crafted to  ensure that all actions with respect to IPR 
enforcement were initiated by the right holder within a Member's local or national judicial system and  IP/C/M/55 
 Page 43 
 
 
  that defendants had a right to fair and equitable pr ocedures to argue their case against whatever action 
was taken with respect to the enforcement of IPRs.  Cases were therefore required to be brought to the 
court before actions were initiate d.  He wondered how Japan took care of the obligation to make 
available fair and equitable procedures both for the applicant and the defendant, which were not 
unnecessarily complicated or costly, and which did not entail unreasonable time limits or unwarranted 
delays.  Article 41.3 confirmed that procedures were  meant to refer to judicial procedures because 
reference was made to decisions on the merits of a case, preferably in writing and reasoned, to be 
made available at least to the parties to the pr oceeding without undue delay, and to be based on 
evidence in respect of which parties were offered th e opportunity to be heard.  He asked how Japan's 
border measures complied with these criteria and whether the parties were allowed to be heard with 
respect to the suspension of imports of allegedly infringing goods.  Article 41.4 provided that parties 
to a proceeding were to be given an opportunity  for review by a judicial authority of final 
administrative decisions.  He asked if Japan's border measures provided for such an opportunity.  
Article 41.5 indicated that this part did not create any obligation to put in place a judicial system for 
the enforcement of IPRs distinct from that for the enforcement of law in general.  No Member was 
required to adopt any measures similar to those adopt ed by Japan.  The same applied with respect to 
the distribution of resources between IPR enfo rcement and enforcement of law in general. 
230. Article 42 referred to fair and equitable pr ocedures to be made available under national 
judicial systems.  Cases had to be brought to court,  initiated by the right holder and subject to certain 
criteria.  The defendant had a right to a written notice,  including the basis of the claim.  He asked who 
had to make the claim for action by the Japan Customs to suspend the importation of goods.  Parties 
had to be allowed to be represented by an indepe ndent legal counsel.  He wondered if this was 
allowed in Japan, in particular to avoid that  procedures imposed overly burdensome requirements 
concerning mandatory personal appearance.  Articl e 44 was another fundamental provision for this 
discussion because Japan had indicated that IPR en forcement under Section 4 on border measures was 
related to Article 44.  However, Article 44 referred to judicial authorities, and not customs officials, 
which had the authority "to order a party to desist from an infringement, inter alia  to prevent the entry 
into the channels of commerce in  their jurisdiction of imported goods that involve the infringement of 
an IPR immediately after customs clearance of such goods".  He ask ed if there was customs clearance 
of such goods in Japan before decisions on the susp ension of their entry into channels of commerce 
was taken by customs officials.  Article 44 had to  be clearly distinguished from import suspension, 
since it only applied to situations occurring afte r customs clearance.  Article 46 addressed other 
remedies.  Here again, it was judicial authorities and not customs officials which had the authority to 
order that goods that they had found to be infringi ng be, without compensation of any sort, disposed 
of outside the channels of commerce.  In co nsidering such requests, there was a need for 
proportionality between the seriousness of the infri ngement and the remedies ordered as well as the 
interests of third parties to be taken into account.  He asked how Japan complied with this 
determination in Section 3 of the TRIPS Agreement, how the interests of third parties were taken into 
account and how proportionality was established by cu stoms officials with respect to the seriousness 
of the infringement.  The Japan Customs had recen tly increased the suspension of imports of small 
packages of goods, but it was left open how customs officials applied the issue of proportionality in the seriousness of the act in resp ect of the suspension of imports of small quantities of goods which 
are sometimes for personal use.  Article 48 provide d for the indemnification of the defendant.  The 
judicial authorities had to be authorized "to orde r a party at whose request measures were taken and 
who has abused enforcement procedures to provide to a party wrongfully enjoined or restrained 
adequate compensation for the injury suffered b ecause of such abuse".  He asked what kind of 
indemnification was foreseen in the context of the Japanese border measures in case of abuse or in 
case of wrongful action and whether the defendants' expenses were paid for by the Japan Customs. 
231. Section 3 concerned provisional measures ordered by judicial authorities.  These provided 
more expedite action, but were drafted along the same lines as the preceding provisions.  A decision on the merits of the case was required at some stage, either before or even after the action was taken.  IP/C/M/55 
Page 44  
 
  Fair and equitable treatment had to be guarant eed.  These principles applied, including where 
provisional measures were taken inaudita  altera parte.   Article 50.3 provided the judicial authorities 
with the authority "to require the applicant to pr ovide any reasonably available evidence in order to 
satisfy themselves with a sufficient degree of certainty  that the applicant is the right holder and that 
the applicant's right is being infringed or that such infringement is imminent, and to order the 
applicant to provide a security or equivalent assu rance sufficient to protect the defendant and to 
prevent abuse".  He asked how the Japan Customs co mplied with this particular requirement of the 
TRIPS Agreement, how the necessary degree of certain ty about the applicant's status as right holder 
was obtained and how sufficient assurance was gained to  protect the defendant and to prevent abuse.  
Article 50.6 stipulated that "if proceedings lead ing to a decision on the merits of the case are not 
initiated within a reasonable period, to be determin ed by the judicial authority ordering the measures 
where a Member's law so permits or, in the absence of such a determination, not to exceed 20 working 
days or 31 calendar days, whichever is the longer" .  This meant that the provisional measures and the 
suspension of entry into the channels of commerce of imported goods that had already been cleared 
by customs had to be revoked or otherwise cease to have effect if proceedings leading to a decision 
were not initiated within a reasonable period of time.   He asked how Japan's rules, regulations and 
practices with respect to border measures desc ribed in the communication complied with this 
obligation.  Appropriate compensa tion had to be paid to the defe ndant according to Article 50.7.  
Pursuant to Article 50.8, the same principles a pplied where a provisional measure was ordered as a 
result of administrative procedures.  There was ther efore no change regarding the requirements to be 
complied with by the Japan Customs.  According to Article 51, Members had to "enable a right 
holder, who has valid grounds for suspecting that the importation of counterfe it trademark or pirated 
copyright goods may take place, to lodge an appli cation in writing with competent authorities".  This 
addressed right holders and not customs officials.  The representative of Brazil thought that both injunctions and border measures had motivated the US question as to whether the increase in the 
suspension of imports had been met with a corres ponding increase in applications for suspension.  
This was also a relevant question with respect to the issue of compliance of Japan's border measures 
with the Agreement.  Article 52 foresaw that  "any right holder initiating the procedures under 
Article 51 shall be required to pr ovide adequate evidence to satisfy  the competent authorities that, 
under the laws of the country of importation, there is prima facie  an infringement of the right holder's 
intellectual property right and to supply a sufficien tly detailed description of the goods to make them 
readily recognizable by the customs authorities".  He asked how this obligation was met by Japan in 
its procedures for suspension of importation by custom s officials.  Furthermore, the representative of 
Brazil referred to Article 53 as another relevant provision, providing the competent authorities with 
the authority "to require an applicant to provide a security or equivalent assurance sufficient to protect 
the defendant and the competent authorities and to  prevent abuse".  He asked in how far such 
securities were sought in the process of applying Jap an's border measures to suspend the importation 
of goods.  A further question was how a prompt no tice of suspension was given to the importer and 
the applicant of the suspension of the release of goods according to Article 51, as provided for in 
Article 54.    
232. The duration of the suspension was addressed in Article 55 according to which "if, within a 
period not exceeding 10 working days after the appli cant has been served notice of the suspension, the 
customs authorities have not been informed that proc eedings leading to a decision on the merits of the 
case have been initiated by a party other than the de fendant, or that the duly empowered authority has 
taken provisional measures prolonging the suspension of the release of goods - again the release of 
goods not the importation of goods – the goods shall be released, provide d that all other conditions for 
importation or exportation have been complied with ".  This was an important element because it 
limited the discretion of the custom s authority to maintain the susp ension of the goods for a period of 
time that was unduly long or created an unreasonable or  unsubstantiated barrier to trade of other WTO 
Members.  Proceedings leading to a decision on the merits of the case were required and it was questionable how this was achieved in the context of  Japan's border measures.  Article 56 referred to 
the indemnification of the importer and of the owner of the goods.  He asked if such indemnification  IP/C/M/55 
 Page 45 
 
 
  was guaranteed by Japan in the case of wrongful de tention of the goods.  The right of inspection and 
information was foreseen in Article 57, and he wondered if the importer in Japan was given an 
equivalent opportunity to have the goods inspected.  Article 58 addressed ex officio action.  In his 
view, this was probably what Japan intended to cove r by the measures set out in its communication.  
This provision did, however, not refer to the susp ension of importation of suspected goods, but to the 
possibility for competent authorities to act upon thei r own initiative and to suspend the release of 
goods in respect of which they had acquired prima facie  evidence that an IPR was being infringed.  
Reference was made to the release of goods and not the suspension of importation, implying that the 
goods had to clear customs before ac tion was taken.  Article 60 addressed de minimis  imports, which 
was a permissive provision, indicating that Members were allowed to exclude from the application of 
the other provisions in Part III small quantities of  goods of a non-commercial nature contained in 
travellers' personal luggage or sent in  mail consignments.  This seemed to indicate that, in the spirit of 
the Agreement, small consignments  were not meant to be subject to mandatory coverage of the 
provisions in Part III. 
233. His delegation believed that enforcement was an  issue for discussion in WIPO's Advisory 
Committee on Enforcement where Brazilian officials had actively participated, including through 
presentations on the enforcement of IPRs at domes tic level.  Those discussions should not be 
duplicated in the TRIPS Council. 
234. The representative of China  viewed the initiative taken by some developed country Members 
to make submissions on enforcement to the Counc il as inappropriate.  Those Members had yet to 
clarify the purpose of their submissions.  If they we re for information only, they should be notified to 
the WTO as related laws and regulations under Article 63.  If they were aime d at establishing best 
practices, there was no mandate for the Council to deal with such matters.  Enforcement of IPR 
protection was not an isolated issue and shoul d therefore not be treated separately from the 
implementation of the TRIPS Agreement as a whole, in particular its objectives and principles in its 
Articles 7 and 8.  Agenda item I on the review of the implementation of the TRIPS Agreement 
covered the whole picture and was therefore more balanced and appropriate to discuss the issue. 
235. The representative of Switzerland  said that the Council was the appropriate forum to discuss 
issues relating to Part III which was an integral part  of the TRIPS Agreement.  This was the natural 
place for Members to share information on national experiences.  The purpose was to provide a forum 
where Members could share their experiences on enfo rcement in order to learn from each other on 
how best to address specific issues and challeng es encountered.  His delegation had submitted a 
communication to the last TRIPS Council on its own experiences with implementing border measures 
at the national level. 
236. Japan's communication referred to a particular challenge in the context of border measures 
faced by many Members, including Switzerland.  The prevalence of e-commerce had turned international postal shipments into one of the ma jor routes for the trade in counterfeit and pirated 
goods.  Such shipments often contained single or on ly small quantities of infringing goods.  Detecting 
such shipments at the border was a formidable  challenge both for right holders and customs 
authorities.  He expressed an interest in knowi ng more about how Japan addressed this issue, for 
example, whether the Japan Customs notified the right holders in each and every case and whether 
small consignments were released if the right hol der did not initiate follow-up procedures.  Japan's 
communication also addressed the increase of de minimis  imports of infringing goods for personal 
use.  While Article 60 provided flexibility to Me mbers on whether and how to address this issue, 
Switzerland had decided to introduce a deterrent against such de minimis  imports by providing for the 
possibility to confiscate counterfeit and pirated goods imported for personal use at the Swiss border in 
its recently amended IP legislation. IP/C/M/55 
Page 46  
 
  237. He took the opportunity to respond to questions th at had been raised by some delegations at 
the last Council meeting in relation to the co mmunication by Switzerland on its experience with 
implementing border measures at the national level (IP/C/W/492).  Additional information had been 
requested on the "easy-to-use check list" to facilitate the task of the customs authorities to detect 
consignments of counterfeit and pi rated goods.  These lists were pr ovided by right holders in the 
context of their application for border measures to  the customs authorities.  The salient features 
distinguishing a genuine product from a fake one had to be lis ted.  Experience had shown that pictures 
illustrating typical characteristics of fake goods we re particularly helpful for customs employees.  
There was no specific form or format required by th e customs authorities for a right holder to submit 
such documentation or checklist.  It was left to ri ght holders to determine themselves which features 
best described in a specific case the differences betw een the fake and the original products.  Another 
question concerned the idea of a centralized, interna tional database containing applications for border 
measures filed by right holders with the customs authorities in the various Members and accessible by 
customs authorities of all Members.  This idea had not been developed in any more detail by his delegation so far, but a further exchange of views and considerations by Members would be 
interesting as to whether such a tool was of assi stance in facilitating the administration of border 
measures for Members. 
238. In response to another question, he said that it was correct that, in the case of counterfeit 
medicines, the involvement of the right holder was not a necessary precondition for the customs authorities in order to seize and destroy counterfeit medicines.  If fake medicines were seized by 
customs, the customs authorities would notify the right holder if the latter had filed a corresponding 
application for border measures.  A copy of this notification would be transmitted to Swissmedic, the 
therapeutic agency responsible for market admission and control of medicinal products.  In a regular 
case, the right holder would apply for the destructi on of the seized medicines, once it was established 
that they were counterfeit.  If there was no co rresponding application for border measures pending 
with the customs authority and if no information on the right holder was available to the customs, 
notification of the suspension would be sent to Swi ssmedic only, which would determine whether, on 
the basis of the Swiss Federal Law on Therapeutic Products, the seized medicines were counterfeit.  If 
so, the customs authorities would be instructed by Sw issmedic to destroy the fake medicines – even in 
the case where it had not been possible to establish cont act with the right holder.  Swissmedic and the 
customs authorities were enforcing first and foremo st public health interests vested in the Law on 
Therapeutic Products rather than IPRs.   
239. He said that his delegation stood ready to r espond to any further questions concerning its 
earlier communication.  It was his delegation's understanding that the discussion was without any 
prejudice to the rights of Members under Article 1. 1 of the Agreement nor was it intended to create 
new obligations for Members. 
240. The delegation of Japan
 said that its laws and regulations had already been reviewed by the 
TRIPS Council and were found to be  TRIPS-consistent.  With respect to the question raised by the 
United States regarding the distinction of small a nd large shipments, the practice was to consider 
international postal shipments as small shipments.  As regards the Intranet bulletin board, every 
customs official could access it through the intranet. 
241. In reaction to Brazil's statement that the C ouncil should not review Members' practices and 
experiences in the field of IPR enforcement,  the representative of the European Communities  referred 
to Article 68 according to which the "Council fo r TRIPS shall monitor the operation of this 
Agreement and, in particular, Members' compliance with their obligations hereunder, and shall afford 
Members the opportunity of consulting on matters relating to the trade-related aspects of intellectual 
property rights".  This was precisely the purpose of the discussions in the Council which was the 
appropriate forum, whereas the WIPO was not the right place to review the TRIPS Agreement.  IP/C/M/55 
 Page 47 
 
 
  242. The delegation of Brazil  said that the discussion regarding the compliance of Japan's border 
measures with the TRIPS Agreement was better placed under the obligation of Members to notify 
their laws and regulations pursuant to Article 63.  As regards the reference to Article 68 by the 
European Communities, he said that this provision focused on trade-related aspects of IPRs.  This 
meant that the measures in question had to comply with the Agreemen t as a whole, and not only with 
specific sections on IPR enforcement.  His delegati on's particular concern was to avoid that such 
measures would create unwarranted barriers to trade of other Members.  He reiterated his position that 
the title of Japan's communication, also mirrored in  the related agenda item, falsely reflected the 
debate that was held on this subject in the Counc il.  He invited Members to notify their laws and 
regulations under Article 63.4, so that a discussi on could be held in the appropriate context. 
243. The Council took note  of the statements made. 
N. INFORMATION ON RELEVANT DEVELOPMENTS ELSEWHERE IN THE WTO 
244. The Chairman  said that the Kingdom of Tonga had become the 151st Member of the WTO on 
27 July 2007.  In paragraph 16 9 of the Report of the Working Party on the Accession of Tonga 
(WT/ACC/TON/17 and WT/MIN(05)/4), the represen tative of Tonga had confirmed that Tonga 
would apply the TRIPS Agreement no later than 30 June 2008 according to the Action Plan in Table 
11 of the Report with the understanding that duri ng this period protection for intellectual property 
rights listed in paragraphs 167 and 168 of that Report would be applied in Tonga.  This commitment 
was incorporated in paragraph 2 of the Prot ocol on the Accession of the Kingdom of Tonga 
(WT/L/644). 
245. The Council took note of the information provided. 
O. OBSERVER STATUS FOR INTERNATIONAL INTERGOVERNMENTAL ORGANIZATIONS  
246. The Chairman  recalled that, at its last meeting, th e Council had agreed that the Chair hold 
consultations on the issue of observer status for in tergovernmental organizations, in particular on the 
request from the CBD Secretariat.  There were 17 pending requests for observer status in the TRIPS Council by other intergovernmental organizations , a list of which was contained in document 
IP/C/W/52/Rev.11. 
247. The Chairman said that he would first inform  the Council on developments in the Special 
Session of the Committee on Trade and Environment and their implications to this Council, given that 
this issue had been raised at the Council's last meeting.  The CTESS was mandated, pursuant to 
paragraph 31(ii) of the Doha Ministerial Decl aration, to negotiate on "procedures for regular 
information exchange between MEA Secretariats and the relevant WTO committees, and the criteria 
for the granting of observer status". 
248. The CTESS was currently considering elements of  a draft text under paragraph 31(ii).  At a 
meeting of the CTESS in July 2007 where this issue had been last discussed, the Chair had reported to 
the Committee that "further consultations had b een undertaken on the basis of a document entitled 
'Elements of a Draft Text under Paragraph 31(ii)'", a nd noted that "there seem ed to be broad support 
for the elements set out in this document to prov ide a basis for an outcome under Paragraph 31(ii)".  
He had added that "[t]here were also some other proposals on the table, for instance with respect to 
observer status, on which delegations would need to continue working in future." 
249. As regards the pending requests for observer status in the TRIPS Council from the CBD 
Secretariat and certain other intergovernmental orga nizations, he said that, as had been requested by 
the Council at its last meeting, he had consulted with the delegations that had been most actively 
engaged in this issue.  However, he regre tted to inform the Council that the cross-cutting IP/C/M/55 
Page 48  
 
  considerations that had prevented the Council fro m making headway continued to be present and, 
therefore, he had to report that it did not seem possible to make progress at that stage. 
250. As regards the question raised at the Council's last meeting of informing the CBD Secretariat 
on the status of its pending request, he noted that the WTO Secretariat had last informed in writing the 
Executive Secretary of the CBD Secretariat of the st atus of the pending request by means of a letter 
dated 22 September 2006.  In addition, the WTO Secretariat had regular contacts with the CBD 
Secretariat during which it kept the latter informed of  relevant developments.  He said that he would 
be happy to inform the Executive Secretary of the CBD Secretariat of the latest situation if the 
Council would find that useful. 
251. The representative of Brazil
 thanked the Chairman for his good offices and for carrying out 
the consultations with interested Members.  He sa id that the possible reason for lack of progress was 
that a few Members had tied the decision regarding the ad hoc  observership of the CBD in the TRIPS 
Council to similar decisions with respect to other organizations, particularly the Arab League.  He 
said that he would like to hear from Members if they  would still maintain this position, since the CBD 
Secretariat had a direct interest in the discussions  taking place in the TRIPS Council and it could be 
solved through an ad hoc  observership.  He said that his delegation would be grateful if the Chairman 
could continue to consult with Members on this issue.   
252. The representatives of China , Peru,  Ecuador  and India  supported the statement of Brazil 
regarding an ad hoc  observer status of the CBD Secretariat. 
253. The Chairman  suggested that he continue his consulta tions to resolve this matter. He noted 
that, nevertheless, the decision remained in the hands of Members.  
254. The representative of Brazil  thanked the Chairman for his commitment to continue holding 
consultations to solve this matter.  However, he wi shed that, in his next report to the TRIPS Council, 
the Chairman could be more specific regarding the position of specific Members, so that a clear view 
could be had of the degree of opposition and support for the ad hoc  solution, as well as the reasons 
behind those positions.  This was important to ensure  transparency.  The Chairman had the authority 
to provide an in-depth report on the situation, an d this would be enough from the standpoint of his 
delegation.  The report should contain specifics on Members' positions in a fair, balanced and 
transparent manner in order to have a substantiv e discussion during the next meeting of the TRIPS 
Council. 
255. The representative of Egypt  supported Brazil's statement re garding consultations on this 
matter. 
256. The Council took note  of the statements made and agreed  to proceed as proposed by the 
Chairman. 
P. ANNUAL REPORT TO THE GENERAL COUNCIL  
257. The Chairman  said that the draft Annual Report of the Council had been circulated in 
document JOB(07)/156.  It still needed to be update d so as to reflect the discussions at the present 
meeting.  He suggested that the Secretariat be requ ested to update the draft to reflect the discussion at 
the present meeting.  This draft would be faxed to Members, who would have one week to comment on the updated parts of the draft report once it has been circulated by the Secretariat. 
258. The representative of Brazil
 suggested that the opportunity for Members to comment on the 
revised draft report relate to any pa rt of it, not just the updated text.  IP/C/M/55 
 Page 49 
 
 
  259. The Council agreed  to proceed as proposed by the Chair, and that Members could provide 
comments on any part of the revised draft report.1 
Q. OTHER BUSINESS  
260. The Chairman  referred to the arrangements for the upc oming review of Tonga.  As he had 
informed the Council under agenda item N, T onga had recently acceded to the WTO with a 
transitional period until 30 June 2008.  In light of  this, he suggested that the Council revert to the 
arrangements for the review of national implementi ng legislation of Tonga at its second meeting in 
2008, which normally would take place in the middle of the year. 
261. The Council so agreed . 
262. The Chairman suggested that the Council ag ree on the following dates for the Council's 
meetings in 2008:  Tuesday and Wednesday, 26 and 27 February2;  Tuesday and Wednesday, 17 and 
18 June;  and Tuesday and Wednesday, 28 and 29 October. 
263. The Council so agreed . 
 
__________ 
 
 
                                                      
1 The Annual Report (2007) of the Council for TR IPS was subsequently circulated as document 
IP/C/48. 
2 The Chairman circulated a faxed communication on 18 December 2007  suggesting an alternative date 
for this meeting.