WORLD TRADE  
ORGANIZATION  IP/C/36 
20 July 2005 
 (05-3242) 
Council for Trade-Related Aspects 
of Intellectual Property Rights  
 
 
 
SPECIAL AND DIFFERENTIAL TREATMENT PROPOSALS 
REFERRED TO THE TRIPS COUNCIL  
 
Report to the General Council by the Chair  
 
 
 1. In its decision of 1 August 2004 on the D oha Work Programme (WT/L/579), the General 
Council recalled Ministers' decision in Doha to revi ew all special and differential treatment provisions 
with a view to strengthening them and making them  more precise, effective and operational, and 
recognized the progress that had been made so fa r.  As regards all those WTO bodies to which 
proposals in Category II had been referred, the General Council instructed these bodies to 
expeditiously complete the consideration of these proposals and report to the General Council, with 
clear recommendations for a decision, as s oon as possible and no later than July 2005. 
2. Two Category II proposals were referred to the Council for TRIPS by the Chair of the 
General Council by means of a lette r, dated 20 May 2003.  The first one is a proposal by the LDCs 
concerning their transition period under Article 66.1 of the TRIPS Agreement.
1  The second one is a 
proposal by the African Group, the first part of wh ich concerns the extensi on of transition periods 
under Article 65.4 of the TRIPS Agreement, and the second part exclusive marketing rights under 
Article 70.9 of the TRIPS Agreement.2  The texts of these proposals are reproduced in Annex I  to this 
report. 
3. Agreement was reached in 2003 amongst participants on the second part of the proposal by 
the African Group concerning exclusive marketing rights.  The then Chair of the TRIPS Council forwarded the text, by means of a letter dated 21 A ugust 2003, to the Chair of the General Council for 
appropriate action.
3  This text was included in the Draft Cancún Ministerial Text circulated as 
document JOB(03)/150/Rev.2, dated 13 Septembe r 2003, more specifically in its Annex C on 
"Special and Differential Treatment"4, but was not formally adopted given that there was no 
substantive outcome to the Ministerial Conference. 
4. At its meeting of 14-15 June 2005, the TRIPS Council agreed to authorize me to report to the 
General Council that the TRIPS Council reiterat es its recommendation concerning the aforementioned 
text that was forwarded to the General Council fo r appropriate action by the Chair of the TRIPS 
Council by means of the letter, da ted 21 August 2003, a nd which, as Members will recall, forms part 
of the package of the 28 agreement-specific proposal s on which Members agreed in principle in 2003.  
This text is reproduced in Annex II  to this report. 
                                                      
1 See document TN/CTD/W/4/Add.1. 
2 See document TN/CTD/W/3/Rev.2. 
3 A copy of this letter was circulated to delegations for information as an annex to document 
JOB(03)/171, dated 21 August 2003. 
4 The text was also included in an earlier version of  the Draft Cancún Ministerial Text circulated as 
document JOB(03)/150/Rev.1, dated 24 August 2003. IP/C/36 
Page 2  
 
5. At that meeting, the TRIPS Council also author ized me to provide a brief factual report on 
what has happened with regard to the other proposal s.  In this regard, I would recall that, at its 
meeting of 21 September 2004, the Council for TRIPS considered what action it should take pursuant 
to the General Council's Decision of 1 August 2004 in  regard to special and differential treatment.  
The Council agreed to request the S ecretariat to summarize in an in formal note the Council's work so 
far on the Category II proposals on special and differen tial treatment referred to it.  This informal 
summary note was circulated in document JOB(04)/164.   As to the work done on the other proposals 
prior to the August 2004 Decision, I would like to refer to that document.  Since that Decision was 
adopted, the Category II special and differential treatment proposals referred to the TRIPS Council 
were on the agenda of the Council's meetings in  December 2004, March and June 2005.  No 
delegation took up those other pr oposals at any of these meetings.  IP/C/36 
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ANNEX I 
 
Category II proposals referred to the Council for TRIPS  
 
Article 66.1  
 
Proposal by the LDCs  - TN/CTD/W/4/Add.1 
  If at the end of the transition period the least -developed Member has not established a viable 
technological base, a further extension of transitio n period shall be automatically granted by the 
TRIPS Council on request by the least-developed Me mber.  Where any other Member is opposed to 
the extension, it shall rest on that Member to show that the objective of the transition period has been 
met for that least-developed Member.  
 
Articles 65, 66.1, 70.8 and 70.9
 
 
Proposal by the African Group  - TN/CTD/W/3/Rev.2 
 (a) It is understood that developing country Memb ers shall be entitled to extensions beyond the 
additional 5 year period under Ar ticle 65.4 relating to other areas of technology required to be 
protected under the TRIPS Agreement. 
 
(b) For purposes of the requirement to grant exclus ive marketing rights during transition periods, 
it is understood that there is a clear distinction between "patent rights" on the one hand and "exclusive marketing rights" on the other.  The two shall not confer the same rights.  Patent 
rights as set out in Article 28 of the TRIPS Ag reement are the following:  "to prevent third 
parties not having the owner's consent from the acts of making, using, offering for sale, 
selling, or importing for these purposes the (patented) product" as well as the products obtained directly by the patented process.  These rights conferred by a patent, are not the same rights as may be conferred by the grant of exclusive marketing rights.  Members have the right and the freedom to define what constitutes exclusive marketing rights, and may do so in light of any interpretations that the Ge neral Council or the TRI PS Council may adopt.  It 
is understood also that there is no requirement  to grant exclusive marketing rights until and 
only if marketing approval is granted. IP/C/36 
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ANNEX II 
 
Text recommended by the TRIPS Council to the General Council for appropriate action
 
  
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TRIPS Agreement – Article 70.9 
 
"For purposes of the requirement to grant exclusive marketing rights during transition 
periods, it is understood that there is a clear  distinction between "patent rights" on the 
one hand and "exclusive marketing rights" on  the other.  Patent rights are set out in 
Article 28 of the TRIPS Agreement.  Exclusive marketing rights are not the same as patent rights.  Members have the right to define exclusive marketing rights, so long as 
the definition accords with the meaning of  the term in the TRIPS Agreement as 
interpreted under the rules of public interna tional law.  There is no requirement to 
grant exclusive marketing rights unless marketing approval is granted in that WTO Member for which exclusive marketing rights is sought." 
 
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