RESTRICTED  WORLD TRADE  
ORGANIZATION  IP/C/M/59 
25 May 2009 
 
 (09-2508) 
Council for Trade-Related Aspects 
of Intellectual Property Rights  
 
 
 
MINUTES OF MEETING 
 
Held in the Centre William Rappard on 3 March 2009  
 
Chairman:  Ambassador Dennis Francis (Trinidad & Tobago) 
 
  The present document contains the record of the discussion which took place during the 
TRIPS Council meeting on 3 March 2009. 
 
Subjects discussed
 Page nos.  
 
A. NOTIFICATIONS UNDER PROVISIONS OF THE AGREEMENT .........................................................2  
B. REVIEWS OF NATIONAL IMPLEMENTING LEGISLATION ..............................................................2  
C. REVIEW OF THE PROVISIONS OF ARTICLE 27.3( B)......................................................................5  
D. RELATIONSHIP BETWEEN THE TRIPS  AGREEMENT AND THE CONVENTION ON 
BIOLOGICAL DIVERSITY .............................................................................................................5  
E. PROTECTION OF TRADITIONAL KNOWLEDGE AND FOLKLORE ...................................................5  
F. NON-VIOLATION AND SITUATION COMPLAINTS .......................................................................15  
G. REVIEW OF IMPLEMENTATION OF THE TRIPS  AGREEMENT UNDER ARTICLE 71.1..................16  
H. REVIEW OF THE APPLICATION OF THE PROVISIONS OF THE SECTION ON 
GEOGRAPHICAL INDICATIONS UNDER ARTICLE 24.2 ...............................................................16  
I. FOLLOW -UP TO THE SIXTH ANNUAL REVIEW UNDER PARAGRAPH 2 OF THE DECISION 
ON THE IMPLEMENTATION OF ARTICLE 66.2  OF THE TRIPS  AGREEMENT ...............................16  
J. TECHNICAL COOPERATION AND CAPACITY -BUILDING ............................................................17  
K. INFORMATION ON RELEVANT DEVELOPMENTS ELSEWHERE IN THE WTO ..............................20  
L. OBSERVER STATUS FOR INTERNATIONAL INTERGOVERNMENTAL ORGANIZATIONS ...............20  
M. OTHER BUSINESS ......................................................................................................................22  
N. ELECTION OF THE CHAIRPERSON ..............................................................................................38  
 IP/C/M/59 
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  A. N
OTIFICATIONS UNDER PROVISIONS OF THE AGREEMENT  
1. The Chairman  said that, since its meeting in Oc tober 2008, the Council had received a 
notification of laws and regula tions from Saint Vincent and the Grenadines, which was being 
circulated in document IP/N/1/VCT/1 and relate d law series documents.  Among the Members whose 
transitional periods under Article 65.2 had expired on 1 January 2000,  there remained only one more 
Member that had not yet submitted any notification concerning its implementing legislation, namely 
Saint Kitts and Nevis.   
2. The Council had also received a number of supplem ents and updates to earlier notifications of 
laws and regulations notified under Article 63.2 of the Agreement.  The Slovak Republic had notified 
consolidated versions of its am ended laws on patents, trademar ks, designations of origin and 
geographical indications, utility mode ls and designs;  Tunisia had notified its new customs code;  and 
Switzerland had notified amendments to its laws  and regulations for the period from 2004 to 
September 2008.  The Philippines had notified th e Philippine Republic Act No. 9502, also known as 
the "Universally Accessible Cheaper and Quality  Medicines Act of 2008", together with its 
Implementing Rules and Regulations;  this law an d regulations implemented, inter alia, the WTO 
Decision on the "Implementation of Paragraph 6 of  the Doha Declaration on the TRIPS Agreement 
and Public Health".  These notifications were bei ng circulated in the IP/N/1/- series of documents. 
3. 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. 
4. As regards notifications of contact points under Article 69, since the Council's meeting in 
October 2008, Saint Vincent and the Grenadines had notif ied its contact point.  In addition, updates to 
contact points notified earlier had been received from Brazil, the Kyrgyz Republic and the United 
States.  These notifications were being circul ated in addenda to document IP/N/3/Rev.10. 
5. The representative of China  said that the National People's Congress of China had adopted a 
decision amending the patent law on 27 December 2008.   The new patent law would enter into force 
on 1 October 2009.  China would notify this new law to the Council in accordance with Article 63 of 
the TRIPS Agreement as soon as it was translated into English. 
6. The representative of Morocco  informed the Council that Morocco had just adopted a 
legislative framework on geographical indications and that it intended to present it at a seminar on 
5 March 2009. 
7. The Council took note  of the statements made. 
B. REVIEWS OF NATIONAL IMPLEMENTING LEGISLATION  
(i) Review of legislation of Ukraine 
 
8. The Chairman  recalled that, at its meeting in June 20 08, the Council had agreed to review the 
legislation of Ukraine, a newly acceded Member, at the present meeting.  Ukraine's notification of its 
TRIPS laws and regulations had been circulated in document IP/N/1/UKR/1, and the texts of the 
notified laws in the relevant law series of doc uments.  Its responses to the Checklist of Issues on 
Enforcement had been circulated in document IP/N /6/UKR/1.  Ukraine had received questions from 
Canada and Switzerland, which had been circulated  in documents IP/C/W/527 and 528, respectively.   IP/C/M/59 
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  Its responses to the questions from Canada and Switzerland have been circulated in documents 
IP/C/W/529 and 530, respectively. 
9. The representative of Ukraine  said that the accession to the WTO was of great importance for 
Ukraine and that its national legislation was in fu ll compliance with the TRIPS Agreement.  Bilateral 
negotiations with WTO Members had been carried out  and some problematic issues had been settled.  
In order to raise the effectiveness of intellectua l property rights enforcement and bearing in mind 
Articles 46 and 59 of the Agreement, the Civil and Criminal Codes had been amended.  The 
amendments concerned the destruction of counterfe it goods and materials and instruments used for 
producing such goods.  In order to bring the Procedur e for the Payment of Fees for Actions Related to 
Protection of Intellectual Property Rights into full co mpliance with Articles 3 and 4 of the Agreement, 
the double scale for determining the amounts of f ees had been cancelled.  A unique scale had been 
adopted, providing equal amounts of fees for all pa yers, irrespective of their citizenship, place of 
residence or location.  These amendments were a pproved by a Government Decree and entered into 
force on the date of Ukraine's accession.   
10. A further problematic issue in the framework of  Ukraine's accession negotiations had been the 
relationship between trademarks a nd geographical indications.  Comply ing with the obligations taken 
during the negotiations, new provisions had been adde d to Ukraine's laws concerning the co-existence 
of trademarks and geographical indications;  the granting of legal protection to traditional 
geographical and non-geographical names used in a particular geographical area; and finally, the use 
of trademarks in domain names and the recogn ition of well-known trademarks.  Presently, Ukraine 
had modern legislation on intellect ual property and mechanisms of im plementation that complied with 
the international norms and the TRIPS Agreement.   
11. Furthermore, Ukraine had fulfilled its obligatio ns under the Article 63.2 of the Agreement 
concerning the notification of laws and regulations on intellectual property, having notified its main  
laws on intellectual property, other laws and regulations, and the inte rnational agreements to which it 
was a party.  It also had provided responses to the Checklist of Issues on Enforcement.  Finally, 
Ukraine had supplied information in response to the questions from Canada and Switzerland.   
12. The representative of Canada  thanked the representative of Ukraine for the responses to the 
questions posed by his delegation. 
13. The representative of Switzerland  commended Ukraine for bringing its national intellectual 
property laws and other TRIPS rela ted legislation into compliance with the TRIPS Agreement, and 
thanked for the answers received to the questions posed by his delegation.  He had one follow-up 
question that would be transmitted to Ukraine that very  day.  In the context of reviews of legislation, 
responses to the Checklist of Issues on Enforcement pr ovided particularly useful information for other 
Members and right holders about legislative and proce dural regimes applicable at the national level.  
While putting in place TRIPS compliant IPR laws at  the national level was an important starting 
point, it was only a point of departure. National le gislation was of little value if it was not enforced 
consistently.  Switzerland had engaged in tec hnical cooperation with Ukraine in the area of 
intellectual property enforcement in 2006 in view of its imminent accession to the WTO and looked 
forward to such cooperation in the future. 
14. The representative of the European Communities  said that his delegation recognized the great 
efforts by and the diligence of Ukraine in upgrading its  intellectual property legislation.  In the past 
three years, the European Union and Ukraine had built a useful co-operation in the field of intellectual 
property within a framework of a structured dialo gue which was supported by technical assistance.  
Ukraine had continuously addressed intellectual prope rty issues in a very constructive manner and he 
was confident that this fruitful co-operation would be further pursued in the future. IP/C/M/59 
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  15. The Council took note
 of the statements made and agreed  to revert to this matter at its next 
meeting. 
(ii) Follow-up to reviews already undertaken 
 
16. The Chairman  said that, as regards the reviews of na tional implementing legislation that had 
been initiated at the Council's meetings since April 2001, there were six reviews that still remained on 
the Council's agenda.  These reviews concerned Cuba , Fiji, Grenada, Saint Kitts and Nevis, Saint 
Vincent and the Grenadines and Suriname. 
17. Furthermore, a number of questions had been  raised with regard to the implementing 
legislation of certain other Members whose revi ews had already been deleted from the Council's 
agenda on the understanding that any delegation should feel free to revert to any matter stemming 
from the reviews at any time.  These Members were Dominica, Gabon, Ghana and Guyana. 
18. Since the Council's meeting in October 2008, Saint Vincent and the Grenadines had provided 
responses to all of the questions posed to it in its  review.  These responses had been circulated in 
document IP/Q/VCT/1.  Given that the responses had just been circulated and were not yet available 
in French and Spanish, some Members might wish to  have some more time to study them.  Therefore, 
he suggested to revert to this re view at the Council's next meeting. 
19. The representative of Switzerland  thanked the delegation of Saint Vincent and the Grenadines 
for its responses to the questions by Switzerland.  He had received these answers recently and they 
were still under review in the capital and would re vert to Saint Vincent and the Grenadines as 
expeditiously as possible for any follow-up matter should there be any.   
20. He underlined the importance of the process of reviews of legislation in the context of the 
TRIPS Agreement and the Council's work.  It re presented the core element of the enhanced 
transparency that Members had agreed for intellect ual property regime in the context of the Uruguay 
Round.  He looked forward to receiving responses to its questions and follow-up questions also from a 
number of other Members.  He was aware that, in some Members, finalizing the process of putting in 
place national implementing legislation had delayed s ubmission of answers to certain questions at the 
time of the review but once such legislation was clea red at the national level, the review procedure in 
the Council could and should be concluded without fu rther delay.  If Switzerland could contribute to 
this process with clarifications or any other assistance relating to the reviews of Members to which it had submitted questions, it would be glad to do so. 
21. The Chairman
 urged the delegations concerned to pr ovide the outstanding material as soon as 
possible, so as to allow the Council to complete these reviews. 
22. The Council took note  of the statements made and agreed  to revert to the matter at its next 
meeting. 
(iii) Arrangements for the review of national implementing legislation of Tonga 
23. The Chairman  recalled that, at its meeting in June 2008, the Council had agreed that it would 
take up the review of the TRIPS implementing legi slation of Tonga, a newly acceded Member, at its 
first meeting in 2009.  At its meeting in October,  the Council had agreed to postpone the review until 
its meeting in June 2009 and set the target dates fo r the submission of questions and responses for that 
review at the present meeting.  The Council had not  yet received Tonga's notification of its TRIPS 
implementing laws and regulations.  Therefore, he asked the delegation of Tonga whether it would be 
able to indicate when it would expect to notify its TRIPS implementing laws and regulations, as well 
as its responses to the Checklis t of Issues on Enforcement.  IP/C/M/59 
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  24. The representative of Tonga  said that there had been an unexpected delay in receiving the 
submissions from the capital before the meeting and requested that the review of its TRIPS 
implementing laws and regulati ons be postponed until the Council's third meeting in 2009. 
25. The Chairman  proposed that, in the light of the request by the delegation of Tonga, the 
Council postpone the review of T onga's TRIPS implementing laws a nd regulations until its meeting 
scheduled for October, and that it set the target da tes for the submission of questions and answers in 
that review at its meeting in June. 
26. The Council so agreed . 
C. REVIEW OF THE PROVISIONS OF ARTICLE 27.3( B) 
D. RELATIONSHIP BETWEEN THE TRIPS  AGREEMENT AND THE CONVENTION ON BIOLOGICAL 
DIVERSITY  
E. PROTECTION OF TRADITIONAL KNOWLEDGE AND FOLKLORE  
27. 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.  Accordingly, he suggested that the 
Council continue its past practice of discussing these  three agenda items together on the basis of the 
contributions by Members. 
28. The representative of Tanzania, sp eaking on behalf of the LDC Group , said that this item was 
of great interest to the LDC Group, and should be advanced in the Council's future discussion.  The 
LDC Group committed itself to greater participation in this matter in order to ensure actualization of 
the objectives to be achieved as soon as possible.  
29. The representative of Egypt, speaking on behalf of the African Group , associated his 
delegation with the statement made by Tanzania.  He said that the protection of biological resources, traditional knowledge and folklore was of prime concern to the African Group.  He expressed his 
delegation's disappointment at the lack of progress of negotiations on the issue of the relationship 
between the TRIPS Agreement and the CBD, which w as a critical part of the implementation-related 
issues and concerns as contained in the Doha Work Programme.  He said that there was a continuing 
lack of engagement from a few Members who insi sted that a case had not been made to commence 
text-based negotiations on an issue that had significant developmental impact on developing countries, particularly African countries.  There ha d been ongoing technical discussions on this issue 
for the past nine years, during which Members had made several submissions with the aim of clarifying issues so that an effective and consiste nt framework could be established to enable WTO 
Members to meet their obligations under both th e TRIPS Agreement and the CBD.  The essence of 
Members' efforts was to ensure that the TRIPS Agreement be amended to provide that Members require applicants for a patent related to biologi cal materials or associated traditional knowledge to 
disclose the source and country of origin of the biological resource and the associated traditional knowledge used in the invention.  The patent appli cant shall also provide evidence of prior informed 
consent and of fair and equitable benefit sharing und er the relevant national regime.  He reaffirmed 
the African Group's position that there was a solid case  supported by a majority of the membership for 
commencing text-based negotiations as proposed by  the Disclosure Group in document IP/C/W/474. 
30. He said that, over the years, Members had witnessed numerous cases of biopiracy, where the 
traditional knowledge and genetic material of African countries a nd other developing countries had 
been taken out of their countries and then patented.  It had proven difficult and costly for the poor 
communities in these countries to fight for their ri ghts.  The amendment of the TRIPS Agreement to IP/C/M/59 
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  include the disclosure requirement, prior informed  consent and benefit sharing was important for 
these communities to protect their traditional knowle dge.  The amendment would ensure the outcome 
of the Doha Development Round to  be truly a development round. 
31. He noted that the African Group had proceeded to tackle this issue at all possible and relevant 
multilateral forums within their own specific manda te and focus.  Most importantly, the Group had 
been at the forefront of efforts to establish intern ationally binding rules on the protection of genetic 
resources, traditional knowledge and folklore at WIPO.  Nonetheless, the persistent lack of 
engagement by a certain group of member states at WIPO continued to block such efforts, most 
notably leading to a failure of the Thirteenth S ession of the WIPO Intergovernmental Committee on 
Intellectual Property and Genetic Resources, Trad itional Knowledge and Folklore (WIPO IGC) to 
produce any outcome in October 2008.  Such failures impinged further on Members' efforts within the 
WTO to produce a concrete and viable outcome concomitant with the development needs of the 
African Group and the developing world at large.   
32. He said that the African Group remained constr uctively engaged.  In particular, the Group 
was heartened by the acceptance of the Director-Gen eral to resume his mandated consultative process 
on the issue of relationship between the TRIPS Agreement and the CBD, as well as on the issue of the 
GI extension.  The Group looked forward to the fo rthcoming consultation session to be held at the 
level of Heads of Delegations, and requested all Members to engage constructively therein.   
33. The representative of Nigeria, speaking on behalf of the ACP Group
, called for the 
amendment of the TRIPS Agreement to provide for a mandatory disclosure of source and origin of 
biological resources and associated traditional knowl edge in patent applications which contained 
inventions using these resources a nd knowledge.  He said that Memb ers' concerns could only be 
addressed if there was a legal regime that could help countries and local communities to have rights over their biological resources and traditional knowle dge, especially because these were being used to 
sustain their livelihood.  He said that there were a number of biopiracy cases in some  countries of the ACP Group on medicinal, agricultural, horticultural and cosmetic uses.  In most of these cases there 
was no evidence or even information of benefit- sharing arrangements with the communities and the 
people involved.  The situation was presently "free for all".  Until the proposed legal regime was put 
in place, the problem of access and benefit sharing w ould continue.  He said that it had been difficult 
and costly for local communities to fight for their rights, and therefore the amendment of the TRIPS 
Agreement was important for these communities to protect their traditional knowledge.  The 
amendment would confirm that the Doha Develo pment Round was truly addressing the development 
concern of the ACP Group.  Finally, he said th at the case had been made to commence text-based 
negotiations, as proposed in document IP/C/W/474, which was supported by over 80 WTO Members. 
34. The representative of Colombia
 said that biological resources as well as associated traditional 
knowledge were an essential part of the wealth of megadiverse developing countries, including 
Colombia.  Biological resources were viable and hi gh-potential alternatives fo r resolving national and 
international problems in areas such as health, f ood security, indigenous and rural production, and the 
environment.  To ensure that the benefits de riving from the use of such resources and associated 
traditional knowledge were properl y shared, it was essential to ensure a close linkage between the 
provisions which regulated access and those which gove rned the use of biodiversity.  He said that 
patents could be used to protect inventions invol ving biological or genetic materials or products 
derived therefrom.  This opened the door for co mmercial exploitation of biological and genetic 
resources and traditional knowledge but did not necessarily guarantee protection of the rights of the 
communities in places where the resources originated .  Neither the place-of-origin provisions that 
related to the sharing of benefits deriving from e xploitation nor the legal instruments that had been 
used hitherto in order to enfor ce such provisions had proved effective in protecting the rights of those 
communities.  Therefore, the need to initiate nego tiations in this area and to revise multilateral patent 
legislation should be recognized in the WTO so as to  halt misappropriation of Members' biodiversity.    IP/C/M/59 
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  35. He said that it was important for the TRI PS Agreement to contribute to achieving the 
objectives of the CBD by maintaining mutual support, sy nergies and the integrity of both instruments.  
Hence, he supported the draft modalities for TRIPS- related issues containe d in document TN/C/W/52 
as a balanced exchange between the different inte llectual property interests.  He said that the 
document was supported by a large number of devel oping and developed country Members.  He also 
noted that the disclosure proposal contained in doc ument IP/C/W/474 was backed by a large group of 
Members.  He said that, over the past nine years, his delegation had constructively and 
enthusiastically taken part in the technical di scussion and had provided abundant information and 
explanations concerning the reasons underpinning the disclosure proposal.  However, his delegation 
was discouraged by the fact that some Members lacked the decisiveness to commit to common 
positions which addressed an interest that was larg ely shared by the membership as a whole.  His 
delegation would continue to constructively take pa rt in the Director-General's consultations on the 
matter without losing sight of its goal. 
36. The representative of Ecuador  said that, owing to the current world economic and financial 
situation, additional efforts would be needed to ensure a constructive dialogue among WTO Members.  
He supported the statements made by Tanzania and Egypt concerning the relationship between the 
TRIPS Agreement and the CBD.  He said that, as mentioned in his delegation's statement at the 
TRIPS Council's meeting of Octobe r 2008, Ecuador, as a megadiverse and multicultural country, had  
incorporated in its new Political Constitution the r ecognition and guarantee of the collective rights of 
the country's indigenous communes, communities, peoples and nationalities.  The result was rights 
which implied an obligation on the part of the Ecuadorian Government to maintain, protect and 
develop collective knowledge of indigenous peoples, their ancestral sciences, technology and 
knowledge;  the genetic resources of biological divers ity and agro-diversity;  and their medicines and 
traditional medicinal practices.  He said that this  recognition and this constitutional commitment by 
the State of Ecuador to guarantee the collectiv e rights of the indigenous communes, communities, 
peoples and nationalities meant that it must defend those rights in every forum in which it had a voice.  
He noted that, as far as Ecuador was concerned, any legitimate use of traditional knowledge, whether 
or not associated, and of biological diversity and agrodiversity, necessarily and unavoidably implied 
the recognition and guarantee of these collective rights of the indigenous communes, communities 
and nationalities not only in national or regional foru ms, but also, and above all, in the multilateral 
context.  Thus, an amendment of the TRIPS Agre ement would enable Members to comply with the 
objectives and principles set forth in the Agreemen t itself, balance the rights and obligations 
established under the Agreement, and to rectify a seri ous omission in this multilateral instrument.  For 
Ecuador, an amendment of the Agreement necessarily in volved the incorporation, in the form of one 
or several stand-alone provisions, of the principl es of the CBD relating to prior informed consent, 
equitable sharing of benefits, and disclosure of  the source of genetic resources and traditional 
knowledge, whether or not associated, legitimately u sed in an invention.  He reiterated that 
negotiations to amend the TRIPS Agreement along the lines described were an inherent part of the 
Doha Round's development dimension and of the Si ngle Undertaking, and that a parallel approach 
should guide these negotiations. 
37. The representative of Pakistan  supported the statements made by Tanzania, Egypt, Nigeria, 
Ecuador and Columbia.  He said that Members ha d been discussing this issue since long and there 
was little or no tangible change in the positions of various Members.  Referring to some Members' 
concern over artificial parallelism between three TRIPS issues, he said that it would be an artificial 
escape if Members did not recognize the inevitable pa rallelism between these i ssues.  He said that 
putting a limit on the scope of the Council's work mi ght not be a plausible argument.  He reiterated 
the importance of an appropriate outcome on these three issues for developing countries including 
Pakistan.  He said that a special effort should be made to find convergence on these issues, which 
would contribute significantly not only to the work of the TRIPS Council but also to TRIPS-related 
disciplines.  The special effort might include inform al meetings in various settings and the use of the IP/C/M/59 
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  Chair's good offices.  He said that finding a conve rgence was not a tough task  in these areas because 
Members had had a broad consensus and a broad coalition of Members supporting these issues.  
38. The representative of India
 supported the statements made by Egypt, Tanzania, Nigeria and 
Colombia, Ecuador and Pakistan.  He expressed hi s delegation's disappointment at the lack of 
progress on the issue of the relationship between the TRIPS Agreement and the CBD despite 
exhaustive technical work of nine years and overw helming support of majority of the membership.  
He said that the proponents of the disclosure pr oposal had consistently demonstrated the spirit of 
compromise and constructive engagement which had resulted in document TN/C/W/52.  While most 
Members agreed that work on all areas on the D oha Work Programme must progress apace, it was 
ironical that there had been no process on the TRI PS/CBD issue since July 2008.  The consultative 
process on the issues of the TRIPS/CBD and GI exte nsion must be intensified along lines decided by 
Ministers in Hong Kong in December 2005.  Paragr aph 39 of the Hong Kong Ministerial Declaration 
called for intensification of consultations by the Director-General "by appointing Chairpersons of 
concerned WTO bodies as his Friends and/or by holdi ng dedicated consultations."  He was happy to 
know that the Director-General had decided to re sume consultations at his level on the issues of 
TRIPS/CBD and GI extension, and looked forward to meaningful and constructive engagement with 
other Members.  He expected the process to lead  to a Ministerial decision to begin text-based 
negotiations in Special Sessions of the TRIPS C ouncil, and as an integral part of the Single 
Undertaking, in order to amend the TRIPS Agreem ent to include a mandatory disclosure requirement 
of source of genetic resources and/ or associated traditional knowledge.  
39. In the course of years of discussions on the issue, his delegation had highlighted the 
inadequacy in the TRIPS Agreemen t to combat biopiracy and misappropriation of genetic resources 
and traditional knowledge, which was one of the f actors leading to an imbalance in the TRIPS 
Agreement.  The CBD contained several IPR-re lated obligations, which obliged countries to 
cooperate to ensure that patents and other IPRs di d not run counter to the objectives of the CBD.  In 
spite of the fact that CBD predated the TRIPS Agre ement, the latter agreement had been oblivious of 
the IP provisions in the CBD.  This contradicti on, which obstructed the proper implementation of 
CBD and caused an imbalance in the TRIPS Agreem ent, needed to be addressed with priority and 
urgency.  
40. After a great deal of technical work, the disclosure proposal contained in document 
IP/C/W/474 had been submitted in 2006.  The objectiv es of the proposal were shared by all Members 
and support for this proposal had been increasing.  The significant change in dynamics in 2008 had 
been captured in the Director-General's report of 9 June 2008.  Subsequently, document TN/C/W/52, 
which contained key parameters the proponents wished to see reflected in a Ministerial decision on the three TRIPS issues, had been submitted on 19 July 2008.  This document was an outcome of 
constructive engagement, flexibilities and accommodation of interests of about 110 Members which included developed and developing countries, and mo st LDCs.  It reflected an agreement among the 
110 Members, close to three fourth of the WTO me mbership, that the three TRIPS issues must be 
dealt with in tandem based on the key parameters me ntioned therein.  It therefore provided a sound 
basis for the way ahead on these issues.  He reite rated that his delegati on strongly supported the 
approach on procedure and the substantive elements of GI extension and GI register as mentioned in 
that document. 
41. He said that the geographical spread and the so cio-economic profile of the co-sponsors were a 
barometer of importance and urgency attached to the issues.  There was a steep rise in the patenting of 
cures based on genetic resources and traditional knowledge  and this added urgency to find a solution.  
He said that there were several remedies which were based on Siddha, Ayurveda, Unani and other 
Indian traditional texts and had b een illegally patented.  For exam ple, remedies based on ginger to 
treat obesity were being been patented.  However,  it had been found that in "Siddha" (an Indian 
system of medicine) preparations, extracts of ging er root were used in treatment for obesity.   IP/C/M/59 
 Page 9 
 
 
  Remedies based on citrus peel extract to treat sk in disorders and injuries had been patented.  
Ayurvedic texts recorded this healing effect as a key ingredient to treat skin diseases.  Similarly, 
remedies based on Himalayan stem herb had been pa tented for the inhibition of the replication of a 
nucleosidic inhibitor resistant retrovirus and/or  a non-nucleosidic inhibitor-resistant retrovirus, 
wherein said retrovirus was an HIV. Indian tr aditional texts had shown the drug was used for 
immune-suppressive emaciating diseases.  Remedies based on mustard had been patented to 
normalize bowel function or for the prevention of co lonic cancer.  Unani system of medicines had for 
years prescribed it for stomach ailments.    
42. He informed the Council that India had successfu lly contested twice the grant of patents for 
non-original inventions based on its traditional know ledge systems, i.e. turmeric for wound heeling 
and neem for anti-fungal properties.  Cancellati on of these patents established that while it was 
feasible to oppose the granting of wrong patents at the international level, it was extremely expensive 
and time consuming to do so.  Cancellation of th e patent for turmeric had taken about two years 
whereas that five years for neem, plus huge costs.  He said that Members were witnessing an alarming trend in "bio-prospecting" for natural remedies.  This could have undesirable consequences in the 
absence of internationally acceptable legal regulati ons.  This added furthe r urgency to amend the 
TRIPS Agreement to include the disclosure requirement.  
43. While the Indian Patent Act included a disclosur e requirement, it had taken additional steps to 
deal with the situation - including setting up a Tr aditional Knowledge Digital Library (TKDL) - an 
innovative application of ICT to safeguard trad itional knowledge from misappropriation.  Since time 
immemorial, India had possessed rich traditional knowl edge.  While most of this knowledge had been 
passed down by word of mouth from generation to generation, a part of this knowledge had been 
described in ancient classical and other literature.  Documentation of this existing knowledge was 
available in public domain on various traditional sy stems of medicine.  It had become imperative to 
safeguard the sovereignty of th is traditional knowledge and to protect it from being misappropriated 
in the form of patents on non-original innovations.  To respond to this, India had established the 
TKDL.  He said that the TKDL database would act as a bridge between ancient texts in different 
languages and patent examiners at a global level.   The TKDL provided information on traditional 
knowledge existing in India in languages and fo rmats understandable by patent examiners at 
international patent offices.  The TKDL covered existing literature related to Ayurveda, Unani, 
Siddha and Yoga in digitised format in five in ternational languages which were English, German, 
French, Japanese and Spanish.  The originals used languages like Hindi , Sanskrit, Arabic, Persian and 
Urdu.  On 2 February 2009, the Indian Government  had granted access to its TKDL to the European 
Patent Office (EPO) through a non-disclosure agre ement.  Currently, discussions were in progress 
with USPTO on granting access to the TKDL.   
44. While the Government was taking initiatives to im prove prior art searches, he said that it was 
only "a part" of the solution.  Due to the trans boundary nature of illegiti mate bio-prospecting and 
patenting, an internationally acceptable and enforcea ble solution was imperative.  In conclusion, he 
said that the Doha Round was a development round and its results would not be complete if it fell 
short of correcting the imbalance in the TRIPS Agreement.  The relationship between the TRIPS 
Agreement and the CBD was a critical implementation issue for developing countries.  He reiterated 
that, for his delegation, an outcome on this issu e was an essential element of any development 
package that would emerge from the Round.   
45. The representative of Cameroon
 supported the statements made by Tanzania, Egypt, Nigeria, 
Ecuador and India.  He said that Cameroon was mu lticultural, megadiverse, and rich in traditional 
knowledge and it also suffered from biopiracy and exploitation.  He was disappointment at the lack of progress in the negotiations on the issue of relati onship between the TRIPS Agreement and the CBD.  
He hoped that this issue would be reconsidered and there would be develo pment and positive changes 
on this issue because it was a very important dimension in WTO work.   IP/C/M/59 
Page 10  
 
  46. The representative of Cuba
 said that the relationship betw een the TRIPS Agreement and the 
CBD was one of the outstanding im plementation issues.  If the impl ementation problems encountered 
shortly after the entry into force of the WTO Agreemen ts were raised in ministerial declarations today 
and were the subject of negotiation, it was on the insistence of the developing and least developed 
countries.  In 2006, after intensive debates and ar duous technical work, a small group of countries, 
including Cuba, had produced a proposal to amend the TRIPS Agreement by introducing a mandatory 
requirement of disclosure of origin of biological  resources and/or associated traditional knowledge.  
Currently, the proposal enjoyed the support of more than half of the WTO Members and of important 
groups, such as the LDCs, the African Group and th e ACP Group.  She said that, as underscored in 
the Preamble to the Marrakesh Agreement, "there is a need for positive efforts designed to ensure that 
developing countries, and especially the least devel oped among them, secure a share in the growth in 
international trade commensurate with the needs of their economic  development".  Misappropriation 
of the resources and knowledge of indigenous and local communities caused serious economic 
damage.  Biopiracy persisted despite the existence of  multilateral instruments designed to stem it.  It 
was now more necessary than ever to take acti on to counter misappropria tion, which harmed the 
interests of disadvantaged groups with abundant bi odiversity and traditional knowledge.   She noted 
that the proposal for the draft modalities for TRIPS-re lated issues had been submitted, which included 
the mandatory disclosure requirement within the framework of the TRIPS Agreement and the CBD, 
and was supported by around 110 Members. 
47. The representative of Norway  said that her delegation did not see any conflict between the 
TRIPS Agreement and the CBD and that the two tr eaties could and should be implemented in a 
mutually supportive manner.  Nevertheless, she said that the relationship between the two instruments 
would be enhanced by introducing a mandatory ob ligation in the TRIPS Agreement to disclose the 
origin of genetic resources and traditional knowledge in patent app lications.  Accordingly, Norway 
had introduced a proposal for such an amendment in June 2006.  The proposal would support the aims of the CBD and would be useful in ensuring that pa tents were not granted contrary to the fundamental 
principles of patent law.   
48. The representative of Brazil
 appreciated the Director-General's decision to conduct dedicated 
consultations on the issues of TRIPS/CBD and GI extension pursuant to pa ragraph 39 of the Hong 
Kong Ministerial Declaration, which showed the im portance attached to the TRIPS-related issues in 
the context of the Doha Round.  He said that la rge coalition of 110 Members, integrated by both 
developing and developed countries, believed that the TRIPS-related issu es deserved to be part of the 
Single Undertaking.  His delegation remained c onvinced that the TRIPS Agreement and the CBD 
must be implemented in a mutually supportive way.  Misappropriation of genetic resources and 
associated traditional knowledge was a serious and gr ave international problem faced by megadiverse 
developing countries, which required a commensurate in ternational response to be provided within the 
legal framework of the international intellectual prope rty system.  He said that the introduction of an 
amendment to the TRIPS Agreement requiring patent  applicants to disclose the country providing 
genetic resources and associated traditional knowle dge was the best and only way for providing an 
effective response to the correlated problems of misappropriation and biopiracy.  Over eighty WTO 
Members, as co-sponsors of document IP/C/W/474, were in favour of the amendment to the TRIPS 
Agreement to introduce a mandatory disclosure re quirement.  He also supported the draft modalities 
for three TRIPS issues as contained in document TN /C/W/52, and believed that three TRIPS-related 
issues must be dealt with in parallel.  Parallelism in  form and in substance remained the most effective 
way to expedite the work on the three TRIPS issues.   In conclusion, he said that it was time for 
Members to start working on the draft modalities  
49. The representative of the United States  said that the Council had continued to engage in a 
useful and constructive exchange of views on this  issues based on a sharing of national experiences 
and by posing and responding to qu estions among Members.  This ma nner of working could continue 
to be the basis for the Council's work on these i ssues.   She acknowledged that some Members had  IP/C/M/59 
 Page 11 
 
 
  advocated commencing negotiation on the basis of a proposed text to amend the TRIPS Agreement.  
However, she reiterated her delegation's positi on that it did not support amending the TRIPS 
Agreement and did not think that doing so would be the most effective way of addressing these concerns of the demandeurs .  She said that Members should focu s on the shared objectives that had 
been revealed.  She agreed that prior informed consent and equitable benefit sharing for the use of 
generic resources and related traditional knowledge and avoiding erroneously granted patents were 
important issues.  Where Members continued to diverge was on the premise that the disclosure 
requirement would be an effective means of achie ving these objectives.  At a fundamental level, she 
said that the most critical element in ensuring appropriate prior informed consent and access and 
benefit sharing was the development and strengt hening of national regim es and legal frameworks 
designed specifically to accomplish these objectives.  Her delegation continued to puzzle over how 
new patent requirements, including the possibility of  denial of patents or revocation of patents in 
some circumstances would help accomplish the leg itimate and important objectives that Members 
shared.  The most effective way to ensure the effe ct of sharing of benefit was to bring about the 
generation of benefits in the first place.  Benefits  would be generated when  useful and good products 
were developed and commercialized.  The existence of an incentive through th e patent system was a 
critical element in encouraging such development and commercialization.  When this happened, and 
when meaningful national access and benefits systems were in place, Members could have confidence that the common objectives could be achieved. 
50. She said that the agenda of the Council limited Members' discussion and consideration of the 
three items in tandem at this point.  She objected strongly to any discussion in this context of other 
TRIPS-related issues, and opposed considering these issues as a package.  Sh e said that these issues 
must continue to be considered on their specific individual merits and within the specific bodies and 
consultations mechanisms designated in previous Ministerial guidance.  Finally, she said that her 
delegation was committed to remain actively engaged in the Council's examination of these issues.   
51. The representative of Venezuela
 said that the Doha Round was a development round and it 
was important to protect traditional knowledge of the most under-privileged communities and to 
prevent its misuse.  This knowledge was part of the wealth of these commu nities.  His delegation 
therefore requested to review the TRIPS Agreement in  order to ensure the sharing of benefits arsing 
from the use of this knowledge.     
52. The representative of New Zealand  shared the objective of preventing misappropriation of 
biological resources, and had supported the consu ltative process led by the Deputy Director-General, 
which had culminated in the Director-General's re port of 9 June 2008 (docum ent TN/C/W/50).  Along 
with India and Brazil, he welcomed the advice  that the Director-General would hold further 
consultations on the TRIPS/CBD issue in the near fu ture.  Nevertheless, he said that his delegation 
was not convinced that the WTO was necessarily th e best forum – and certainly it was not the only 
way – to address these issues.  The focus on the interaction between the TRIPS Agreement and the 
CBD was very narrow in scope, which effectivel y narrowed discussions on biological resources and 
associated traditional knowledge.  While New Z ealand shared the objective of preventing 
misappropriation of biological resources, it had r eal concerns around misappr opriation of traditional 
knowledge and traditional cultural expressions, a nd believed that a TRIPS/CBD-focused outcome 
could not address these concerns.  He said that his delegation could also provide recent examples of 
where overseas companies had misappropriated New Zealand traditional knowledge and/or traditional 
cultural expressions.  He reiterated that his delega tion shared the commitment to address these issues, 
but could not do it in a narrow way.  Therefore, it retained a strong preference for these discussions to 
take place within the WIPO IGC ra ther than in the TRIPS Council.  He could not agree that the WIPO 
process was “empty”, and said that the process w as undertaking very important work to build 
understanding of the nature of the problem of mi sappropriation, and had th e benefit of addressing a 
much broader scope than was possible within the WTO or the CBD.  The holistic approach, drawing 
together work across a broad range of issues, also  had the benefit of promoting coherence across the IP/C/M/59 
Page 12  
 
  various international forums which were discussing  related issues.  Accordingly, his delegation 
looked forward to further engagement at the 14
th session of the WIPO IGC to be held in June 2009. 
53. He acknowledged the concerns of Brazil, Indi a and a large number of developing countries 
over the relationship between the TRIPS Agreement and the CBD, and said that his delegation would 
continue to engage in constructive discussions within the TRIPS Council to better understand these 
concerns.  He then expressed his delegation's regret  at the linkage between three TRIPS issues, and 
said that there was a scope for meaningful discu ssions on the TRIPS/CBD issue within the Council, 
but there was more limited support – and greater polarisation on the other TRIPS issues, which had 
real economic implications for New Zealand and ot her Members.  While this tactical negotiating 
linkage was made between the issues which had not hing in common except for their relationship to 
the TRIPS Agreement, New Zealand felt constrained in its current position on the TRIPS/CBD issue.   
54. The representative of Japan  said that his delegation had been participating in the discussion 
on the relationship between the TRIPS Agreement and the CBD in an active and constructive manner.  
He said that the discussion involved two issues: e rroneously granted patents and compliance with the 
CBD.  The issue of erroneously granted patents could be effectively addressed through improved 
database systems for genetic resources and traditio nal knowledge.  Accordingly, his delegation had 
made a proposal in the TRIPS Council as well as in  WIPO (document IP/C/W/504).  A number of 
Members had manifested their interest in and support to this proposal.  It was high time to have in-
depth discussion of this proposal.   
55. He said that it was still unclear to his dele gation whether the disclosure of the source of 
genetic resources and associated traditional knowledg e could ensure an effective compliance with the 
CBD.  The disclosure of the source of origin led to serious concerns over the patent system, such as 
the burden on patent applicants, the legal instab ility and the restrictive effect on patents.  These 
negative effects might undermine the benefits of  all WTO Members including genetic resource 
providing countries.  Therefore, a careful analysis and assessment of biopiracy cases would be required prior to discussing any draft amendment.  He informed the Council that discussions were 
ongoing in the framework of the CBD as well as  the WIPO IGC, which should be given due 
consideration.   
56. Finally, he said that his delegation did not  subscribe to the proposal to mix up the 
TRIPS/CBD issue with other issues – so called paralle lism.  He reiterated that these issues should be 
dealt with separately based on their own merits.   
57. The representative of Argentina
 did not support the artificial parallelism between the three 
TRIPS issues as proposed in document TN/C/W/52.   She said that Argentina also suffered from 
misappropriation of genetic resources, but it did not endorse the disclosure proposal.  She said that Members should continue discussion without forge tting that substantive work was being done in 
WIPO and the CBD. 
58. The representative of the European Communities
 said that, as a co-sponsor of document 
TN/C/W/52, his delegation saw the common point between the three TRIPS issues and remained 
firmly committed to the TRIPS Council as a common platform.  He said that his delegation attached importance to these three issues and fully supported parallel treatment with a view to a decision on 
modalities.  The European Communities welcomed informal consultations on the issues of GI 
extension and TRIPS/CBD that the Director-General in tended to hold shortly.  He said that technical 
discussions on these TRIPS-related issues had been e xhausted a long time ago a nd it was high time to 
move to text-based negotiations.  In its view, a broad consensus for a decision on modalities could 
only be found if the TRIPS-relate d issues were part of it.    IP/C/M/59 
 Page 13 
 
 
  59. The representative of Switzerland  associated his delegation with the statement made by the 
European Communities, India and Brazil.  He said  that, as a co-sponsor of document TN/C/W/52, his 
delegation supported both s ubstance and procedure proposals contained in that document.  He said 
that Switzerland promoted the protection and patentability of inventions in the field of bio-technology, and it had implemented such protection at the national level since it was convinced that 
this technology held many promises for mankind a nd needed to be incentiv ized through adequate 
protection.  Consistent with this interest, his dele gation had listened attentively to the concerns raised 
by a considerable number of WTO Members in rela tion to patents for such inventions which were 
directly based on genetic resources and associated traditional knowledge, and to the reports about so 
called biopiracy cases.  It had participated actively and constructively in the discussions on this topic 
in the Council and in the context of the Doha Round negotiations.  Swit zerland had itself submitted 
proposals in WIPO and to the Council on how through a disclosure of source requirement 
transparency could be enhanced in patent appli cations to address these con cerns, and to provide a 
relevant point of reference for later benefit shari ng if any such benefit should accrue.  His delegation 
had also suggested and supported proposals from other Members on a database of traditional 
knowledge which could help to avoid the granting of  patents which did not fulfil the requirement of 
novelty.  In order to succeed with the challenge  of reaching a broad consensus for a modalities 
decision on the Doha Round, he said that Members mu st strive for a balanced package.  The three 
TRIPS issues were part of such a package and so were the two TRIPS implementation issues, that is the issues of TRIPS/CBD and GI extension.  Refe rring to some Members' concern over the artificial 
or strategic nature of this linkage between these TRIPS issues, he said that the issues of TRIPS/CBD 
and GI extension were both implementation issues and they had been agreed to be so in the Doha 
Declaration by the membership, and there were s ubstantive linkages among the three issues.  He 
welcomed the Director-General's  initiative and called  for expedi tiously setting up a process which 
would allow to make necessary substantive prog ress so that Members could contribute to a 
breakthrough decision for the Doha Round.   
60. The representative of Canada
 reaffirmed his delegation's continued view that the most 
meaningful way to advance the discussion on the re lationship between the TRIPS Agreement and the 
CBD in the WTO was to engage in fact-based techni cal discussions of the various proposals made in 
the Council and that time and cons ideration should be given to a full scoping of the issues before 
proceeding further with particular focus on those who had either best practices to share or had 
experienced problems.  Referring to India's statement on a number of examples of misappropriation 
and the development of a database, he said that hi s delegation was interested in learning more about 
these issues.  He encouraged Members to consider  other mechanisms to protect biodiversity and 
prevent misappropriation of genetic resources such  as developing broader, more globally accessible 
and functional prior art databases, using mutually agreed terms and material transfer agreements, 
licensing, codes of conduct and other contracts.  Referring to the proposal to introduce a mandatory 
disclosure obligation in patent applications, he said that his delegation had not been shown that there 
was a contradiction between the TRIPS Agreement and the CBD, and therefore remained unconvinced of the need for such an amendment.    
61. He further said that his delegation would  c ontinue to engage constructively in ongoing 
discussions on the relationships between the TRI PS Agreement and the CBD in the Council, but 
wished to highlight the fact that other internationa l forums had established expertise and capacity in 
this area, in particular the CBD, WIPO and the FAO, which were undertaking significant technical 
discussions in these same areas.  He said that his delegation was committed to accelerate the work of 
the WIPO IGC as per that IGC's mandate and to ach ieve concrete outcomes.  His delegation was of 
the view that great efforts had been made during the last session of the IGC held in October 2008 to 
find a way forward and to establish a process seeki ng to accelerate the work and the protection of 
traditional cultural expressions, trad itional knowledge and genetic res ources.  His delegation looked 
forward to engaging with Members and the new Chair in advance of the next session of the IGC scheduled for July 2009 in order to capture the state of the discussions and to take things up where IP/C/M/59 
Page 14  
 
  member states had left them.  Canada was committed  to building consensus with others in the period 
preceding the 14
th session of the IGC and looked forward to participating in informal consultations 
with the Chair during the inter-sessional period.  Finally, he associated his delegation with the 
statement made by New Zealand on  the linkage between the three TRIPS issues and said that his delegation did not see the linkage and each issue should be treated on its merits.  
62. The representative of Korea
 expressed his delegation’s disappointment at the stalled 
discussions on these issues, which were hostages to th e top-down procedural approach.  He reiterated 
that his delegation was willing to engage in f act-based technical discussion on these issues according 
to the mandate established in the Council.  He said  that the resort to so-called parallelism was not a 
helpful approach to find a constructive solution for each issue, and that each issue should be discussed 
on its own merits.  
63. His delegation was fully aware of the importance of the objectives of the CBD, but it still 
remained doubtful whether the disclosure requireme nts were the desirable and most effective 
solutions to address the objectives of the CBD.  Some  Members' national experiences indicated that 
effective benefit-sharing regimes could be implem ented outside the patent system, which deserved 
due consideration.  Constructive alternatives should and could be seriously examined by Members in 
a way to find the balance between the stability of the current patent system, including the impact on 
overall innovative activities of the amendment of the TRIPS Agreement to address the disclosure 
requirement.   
64. He said that ground work was still needed to move onto the next steps on the issue of 
protection of traditional knowledge.  Without the shared basis on the definition and scope of 
traditional knowledge and folklore to be protected, it was hard to expect that adequate protection 
could be provided.  He said that WIPO, under the new leadersh ip since October 2008, had been 
working to make progress focusing on technical clarif ications of traditional kn owledge and folklore.  
He hoped that the work in WIPO, which had more expertise on this issue, would progress well and 
was looking forward to having a close collaboration with WIPO.  
65. The representative of Morocco  said that, as a co-sponsor of document TN/C/W/52 of July 
2008, which was  supported by over 100 WTO Member s, his delegation believed that the document 
could be a basis for the future work on the three issues.  He reiterated his delegation's position on the 
TRIPS/CBD issue, that is to include Article 29 bis in the TRIPS Agreement.   
66. The representative of Angola  associated his delegation with the statements made by Tanzania, 
Egypt and Nigeria.  He said that, in the light of the controversy and the various international forums 
discussing this issue, Members should do some work in order to develop modalities on these three 
main issues as contained in documents IP/C/W/474 and TN/C/W/52.  His delegation was prepared to 
participate in any group seeking a just and equitable solution.   
67. The representative of Australia  said that his delegation saw no intrinsic conflict between the 
CBD and the TRIPS Agreement.  He said that Australia was a multicultural and a megadiverse 
country with extensive genetic resources and associ ated traditional knowledge, and that it was also 
committed to an international solution to furthe r the common aims under the CBD.  To that end, 
Australia had and would engage c onstructively in discussions in the TRIPS Council, in WIPO and in 
the CBD to find a solution in pursuit of the common ai ms.  He said that Australia's experience with 
solutions outside the patent system in regard to prior informed consent and access and benefit sharing 
was a very positive one, and it stood ready to share that experience with other Members.  Australia 
also welcomed the fact that the Director-Gener al had restarted consulta tions and would engage 
constructively in those discussions.  He associated his delegation with the remarks by New Zealand 
and Canada in urging caution in linking the issu es where Members shared common aims, such as the 
issue of TRIPS/CBD,  with an issue where there wa s no agreement on the nature of the problem and  IP/C/M/59 
 Page 15 
 
 
  where positions were strongly polarised.  Doing so could only "muddy the waters" and made it harder 
to find the solutions. 
68. The representative of Chinese Taipei  said that, due to the complexity of this issue, Members 
had not yet come to a conclusion about the nece ssity of amending the TRIPS Agreement.  His 
delegation would like to continue the discussion, in cluding the consultation mandated in paragraph 39 
of the Hong Kong Declaration.  He said that his delegation did not see the linkage between the 
TRIPS/CBD issue and the other two TRIPS issues.  He said that each Member had its own negotiating 
priority and to link three issues was not helpful to  discuss the issues based on their own merits.   
69. The representative of China  associated his delegation with the remarks made by Tanzania, 
Egypt, Nigeria, Columbia, Ecuador, Pakistan, Indi a, Brazil, Cuba, Cameroon, Bolivia and Angola.  
He said that documents IP/C/W/474 and TN/C/W/52,  co-sponsored by China, were supported by the 
majority of WTO Members.  After nine years of technical discussions on these three agenda items, China was convinced that the disclosure issue was mature both politically and tactically, and merited 
substantial text-based negotiations.  He said that a concrete outcome on the disclosure issue should be 
an essential element of any development package that  would emerge from the Round.  He urged that  
text-based negotiations on the issue of relations hip between the TRIPS Agreement and CBD be 
undertaken as soon as possible, and his delegation would continue to engage in constructive 
discussions and make its contribution.  
70. The representative of Costa Rica
 said that there was no conflict between the TRIPS 
Agreement and the CBD and that the two agreements  mutually and successfully supported each other.  
He said that his delegation shared the objectives that genetic resources a nd traditional knowledge 
should not be misappropriated and that appropriate  mechanisms should provide for equitable access 
and benefit sharing.  It therefore endorsed the in itiatives aimed at finding a solution in the WTO and 
would be willing to further discussion in that direct ion.  However, his delegation did  not agree with 
the parallelism between the other two intellectual property-related issues (GI extension and GI 
register), as proposed document TN/C/W/52.  He said that each issue should be discussed on its own 
merits and in the forum designed for such discussi on, and that the three issues should be addressed 
separately.  The only issue with a negotiating mandate  was the GI register, which did not fall within 
the responsibility of the Council in its regular session. 
71. The Council took note  of the statements made under these three agenda items and agreed  to 
revert to them at its next meeting.  
F. NON-VIOLATION AND SITUATION COMPLAINTS  
72. 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 to 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. 
73. 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. 
74. The representative of Nigeria  said that this issue was very important for most developing 
countries and recalled that, in May 2003, the Ch airman had supplied the Committee with three 
different options to move the issue forward but that , since then, Members had not been able to agree 
on any of them.  It was important for Members to be able to implement the flexibilities contained in IP/C/M/59 
Page 16  
 
  the TRIPS Agreement in order to pursue rights to en sure access to medicines.  In order to avoid 
surprises, the Council should look for a way of init iating or resuming the discussions on this issue.  
He requested the Chairman to hold consultations on how the issue could be moved forward.   
75. The representative of India
 supported the statement made by Nigeria, and drew Members' 
attention to document IP/C/W/3851, co-sponsored by India, which ga ve details of India's systemic 
concerns and reasons why there shoul d be no application of non-viola tion and situation complaints for 
the TRIPS Agreement.  The application of such co mplaints could upset the delicate balance of rights 
and obligations in the TRIPS Agreement, and lim it the use of the flexibilities inherent in the 
Agreement to secure objectives related to public health , nutrition, the transfer of technology and other 
issues of public interest in se ctors of vital importance to social, economic and technological 
development.  Therefore, his delegation ur ged the Council to accept recommendation number 1 
mentioned by the Chair of the TRIPS Council in May 2003, i.e.: "banning non-violation complaints in 
TRIPS completely". 
76. The Chairman  suggested that, in the light of the proposals made by Nigeria and India, the 
Council request the incoming Chair to hold consulta tions on the issue of non-violation and situation 
complaints. 
77. The Council so agreed . 
G. REVIEW OF IMPLEMENTATION OF THE TRIPS  AGREEMENT UNDER ARTICLE 71.1 
78. No statements were made  under this agenda item. 
79. The Council agreed  to revert to the matter at its next meeting. 
H. REVIEW OF THE APPLICATION OF THE PROVISIONS OF THE SECTION ON GEOGRAPHICAL 
INDICATIONS UNDER ARTICLE 24.2 
80. The Chairman  recalled that Article 24.2 provided th at the Council should keep under review 
the application of the provisions of the GI Section of  the Agreement.  He urged those delegations that 
had not yet provided responses to the Checklist of Questions contained in document IP/C/13 and 
Add.1 to do so.  Also those  Members that had already provided responses c ould provide updates to 
the extent there had been any significant changes on the way they provided protection to geographical 
indications.   
81. The Council agreed  to revert to the matter at its next meeting. 
I. FOLLOW -UP TO THE SIXTH ANNUAL REVIEW UNDER PARAGRAPH 2 OF THE DECISION ON THE 
IMPLEMENTATION OF ARTICLE 66.2  OF THE TRIPS  AGREEMENT  
82. The Chairman  recalled that, at its last meeting, the Council had taken up its sixth annual 
review of developed country Memb ers' reports on their implementation of Article 66.2 of the TRIPS 
Agreement.  In concluding that item, he had indi cated that he would provide delegations with an 
opportunity at the present meeting to make furthe r comments on the information submitted for that 
meeting that they might not yet have been able to study. 
                                                      
1 Communication on "Non-violation and situation nullification or impairment under the TRIPS 
Agreement" from Argentina, Bolivia, Brazil, Colombia , Cuba, Ecuador, Egypt, India, Kenya, Malaysia, 
Pakistan, Peru, Sri Lanka and Venezuela, dated 30 October 2002.  IP/C/M/59 
 Page 17 
 
 
  83. He further recalled that, at that meeting, he had informed the Council of a workshop that the 
Secretariat had organized, at the request of the Dele gation of Lesotho on behalf of the LDC Group, on 
transfer of technology under Article 66.2 and held back-to-back with the Council meeting.  The representative of Lesotho, speaking on behalf of the LDC Group, had expressed his appreciation for 
the event and requested that the S ecretariat organize another workshop this year.  The Chairman said 
that he trusted that the Secretariat would follo w up with the LDC Group concerning this request. 
84. The representative of Bangladesh
 said that, at the Council's meeting in October, his delegation 
had made detailed comments on how to improve tran sparency of the reports of developed country 
Members.  He said that, since Article 66.2 was de dicated to LDCs, the reporting should target LDCs 
only.  If reports were to be made LDC-wise, it w ould be easier for Geneva delegates to get specific 
feedback from their capitals.  He expected the repor ts to be more LDC-friendly and was interested to 
know:  (a) the type of technology transferred by en terprises and institutions of the developed country 
Members;  (b) the terms under which it had been tr ansferred;  and (c) the extent to which these 
incentives were specific to LDCs.  He was not sure whether all developed countries had fulfilled their 
reporting obligations and requested the Secretaria t to let it know which developed countries had not 
fulfilled their reporting obligations so that his dele gation could pass its requests to those countries to 
be assessed in their reporting activities in the near fu ture.  At the Council's last  meeting, his delegation 
had said that the workshop in October had been ve ry fruitful and wanted to have another workshop 
this year with the possible participation of LDC ca pital-based delegates.  He asked the Secretariat 
when it was contemplating holding such a workshop this year. 
85. The Council took note  of the statements made. 
J. TECHNICAL COOPERATION AND CAPACITY -BUILDING  
86. The Chairman  recalled that, at its last meeting, th e Council had taken up its  annual review of 
technical cooperation.  Given that some in formation from Members and intergovernmental 
organizations had only been made av ailable a short time before the revi ew, he said that he would offer 
Members a further opportunity to make comments on that material. 
87. He further recalled that paragraph 2 of th e TRIPS Council's 2005 decision on the "Extension 
of the Transition Period under Article 66.1 for Least-Developed Country Members" provided that 
"with a view to facilitating targeted technical a nd financial cooperation pr ogrammes, all the least-
developed country Members will provi de 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 assist them in taking steps necessary to implement the TRIPS Agreement".  To date, the 
Council had received such information from Sierra  Leone and Uganda.  He urged other least-
developed country Members to provi de information to the Council on their individual priority needs 
for technical and financial cooperation.   
88. He informed the Council that the United Stat es had provided an updated notification of its 
contact point for technical cooperation on TRI PS that had been circulated in document 
IP/N/7/Rev.2/Add.8. 
89. The representative of Egypt, speaking on behalf of the African Group
, said that the Group 
was a firm believer in the centrality of technical  cooperation and capacity-building efforts as a core 
function and mandate in the TRIPS system.  If it we re not for such efforts, African countries would 
have been unable to reap any substantial benefits  and fully make use of the TRIPS Agreement.  He 
welcomed the recent reports by developed country partners on th eir technical cooperation activities 
with developing and least-developed countries and be lieved that they represented a great contribution 
for efforts under the agenda item.  Nonetheless, he believed that there were important aspects of work 
that went beyond the reports or ongoing  technical cooperation activities.   IP/C/M/59 
Page 18  
 
  90. The African Group believed that technical as sistance and capacity-building activities should 
be pursued according to the following principles:  (i) be development-oriented, demand-driven and 
transparent, taking into account the priorities and the special needs of developing countries, especially 
LDCs, as well as the different levels of developm ent of Members;  (ii) promote a development-
oriented intellectual property culture;  (iii) place particular emphasis on the needs of small and 
medium-size enterprises and institutions dealing w ith scientific research and cultural industries;  
(iv) promote measures that would help countri es deal with intellectual property-related anti-
competitive practices by providing technical coopera tion to developing countries, especially LDCs, 
upon request, in order to better understand the inte rface between IP and competition policy;  (v) 
further develop infrastructure and other facilities wi th a view to making national intellectual property 
institutions more efficient and promote fair bala nce between intellectual property protection and the 
public interest;  and (vi) strengthen national capac ity for protection of domestic creations, innovations 
and inventions and support development of national, scientific and technological infrastructure.  This 
list was, by no means, exhaustive, but contained what the African Group deemed to be the essence of 
the ongoing efforts to bring balance in the intell ectual property debate and should, at a minimum, 
ensure widespread endorsement as it enjoyed consensus in WI PO, another equally relevant 
multilateral organization with a wider membership.  He called Members' attention to these essential 
principles and to the necessity of providing qua litative assessments of thei r technical assistance and 
capacity-building efforts accordingly. 
91. The representative of India
 said that his delegation recogni zed the importance of technical 
cooperation and capacity building in the TRIPS Agre ement from the point of view of developing 
countries.  India supported the links drawn by the delegation of Egypt between the work in the WTO 
and the work in WIPO.  Recalling Brazil's proposal in document IP/C/W/513, he saw a clear link between the work in the Council and the 14 propo sals on technical assistance and capacity-building 
contained in "Cluster A" of the Development Ag enda adopted by the WIPO General Assembly in 
2007.  Some of the recommendations referred to th e TRIPS Agreement, and one to the agreement 
between WIPO and the WTO.  In his view, "Clust er A" provided a relevant guiding framework for 
discussions in the TRIPS Council.  Technical assi stance should be demand-driven, transparent, 
neutral, accountable and take into account the special  needs of developing countries, in particular 
least-developed countries.  This would facilitate effective compliance with the obligations under 
Article 67, make the implementation truly "devel opment oriented" and contribute to a balanced 
implementation of the TRIPS Agreement, in light of  its objectives and principles as laid down in its 
Articles 7 and 8. 
92. The representative of Brazil
 recalled that its submission in IP/C/W/513 circulated in June 
2008 proposed that the WIPO Deve lopment Agenda principles should be taken as a basis for technical 
cooperation and capacity-building ac tivities carried out under Article 67 of the TRIPS Agreement.  
The ongoing debate in the TRIPS Council on how to achieve effective compliance with the 
obligations under that Article would greatly bene fit from the contribution of intense and broad 
discussions going on in WIPO on the implementation of its Development Agenda.  The first cluster of 
the WIPO Development Agenda, c ontaining 14 recommendations, dea lt with technical assistance and 
capacity building and provided a guiding framework fo r development-oriented technical assistance.  
Although some proposals referred to WIPO activ ities, he believed the Development Agenda 
recommendations to be equally relevant and applicab le within the WTO context.  Brazil invited the 
Council to further look into "Cluster A" of th e WIPO Development Agenda and consider its 
submission from June 2008. 
93. The representative of Ecuador  said that it was his understanding that the TRIPS Council 
should look at the work which was being carri ed out at WIPO and its Development Agenda, 
specifically with respect to "Cluster A".  As rega rds transfer of technology, he felt that one should 
look at the work being done in SMEs in othe r countries, as well as in universities and other 
institutions and research centres.    IP/C/M/59 
 Page 19 
 
 
  94. The representative of Bangladesh  recalled that his delegation had made detailed comments at 
the Council's meeting in October, which he wanted  to follow up.  Being the countries with most 
economic, financial and administrative constraints, th e situation of LDCs had not yet changed.  The 
need for flexibility to create a viable technological  base was as necessary as ever  in the face of the 
current financial crisis.  Technical assistance had a development dimension and, in that context, he 
stressed developed country Members' commitment to provide technical and financial cooperation in 
favour of LDCs, in accordance with Article 67 of th e Agreement, in order to effectively address the 
needs identified in accordance with paragraph 2 of the Decision of the Council for TRIPS of 29 November 2005.  In this respect, he underlined  that LDCs might need to request technical 
assistance even to prepare their pr iority needs assessments.  He was aware that Uganda and Sierra 
Leone had already requested technical assistance from developed country Members and his delegation 
was very much interested in knowing the progress made  in this regard.  He said that Bangladesh was 
preparing its needs assessment and would present it in the near future. 
95. The representative of Argentina
 said that his delegation had been one of the first to promote 
the WIPO Development Agenda and had actively participated in the discussions leading up to its 
adoption.  Argentina welcomed the document fr om Brazil and felt that the principles of the 
Development Agenda were appli cable in this forum as well. 
96. The representative of Canada  said that Canada was committed to implementing the 
Development Agenda of WIPO by mainstreamin g the development dimension in all WIPO's 
activities, including its recommendations on technical assistance and capacity building.  However, he 
understood that the recommendations under the Age nda expressly concerned WIPO's activities, as 
well as its core mission, responsibilities, capa bilities and resources.  Although linkages could be 
drawn between the recommendations contained in "C luster A" and the process under Article 67, he 
was of the view that WIPO's efforts in that sense were complementary and should not form the basis 
of the consideration of issues related to technical  assistance and capacity building under Article 67.  
The WIPO Development Agenda was in a very ear ly stage of implementation with WIPO member 
states meeting during the upcoming months to continue to implement each of the adopted 
recommendations, including identifying activities and budge tary requirements.  In fact, in addition to 
Article 4 of the 1999 framework agreement betw een WIPO and the WTO on legal and technical 
assistance and technical cooperation, recommendation 14 in "Cluster A" illustrated all the efforts of the two Organizations in the sense of their compleme ntary roles.  In conclusion, Canada wished to 
reiterate its commitments in both the WTO and WI PO with regard to these issues and believed the 
two Organizations should work collaboratively on these matters. 
97. The representative of the United States
 said that she recognized Brazil's continuing interest in 
technical cooperation and the document that it had presented to the Council just prior to its last 
meeting.  The United States had been highly i nvolved in the WIPO Committee on Development and 
IP and in the negotiations leading up to its establis hment and would continue to be so in order to 
contribute to its continued success.  The Committee, that had held a couple of  meetings to date, was 
still in its formative stages.  It had worked with  the WIPO Secretariat to establish the proper and 
necessary steps to be taken to implement each of  the adopted recommendations, including programme 
and budgetary issues related to their implementa tion.  However, those recommendations expressly 
concerned the work of WIPO and many did not make sense outside that context, as they concerned the core mission, responsibilities, capabilities and res ources of WIPO.  It was highly inappropriate to 
presuppose that those recommendations should apply outside WIPO and its activities, particularly 
when the Committee was at its  early stages of addressing its tasks and implementation. 
98. The representative of Japan
 supported the promotion of the cooperation between WIPO and 
the WTO in the area of intellectual property.  As a member of WIPO, Japan attached great importance to the proposals contained in "Cluster A".  Ho wever, he felt that Members should avoid any 
duplication of debate in this area.  In his vi ew, the 14 proposals in question could be used as a IP/C/M/59 
Page 20  
 
  reference for technical cooperation at the WTO level, but they had to be looked at very carefully since 
there were still some doubts as to whether they coul d be used as a basis for carrying out technical 
cooperation under Article 67 of the TRIPS Agreement.  He delegation was prepared to have further 
debate on this topic in future meetings.   
99. The Council took note
 of the statements made. 
K. INFORMATION ON RELEVANT DEVELOPMENTS ELSEWHERE IN THE WTO 
100. The Chairman  informed the Council that, by means of a joint communication, dated 
4 December 2008, China and the European Commun ities had informed the Dispute Settlement Body 
that they had reached agreement in the form of a Memorandum of Understanding regarding the matter 
raised by the European Communities in the disput e China – Measures Affecting Financial Information 
Services and Foreign Financial Information Supplie rs.  This Memorandum of  Understanding had been 
circulated to the TRIPS Council in document IP/D/27/Add.1.   
101. Regarding the status of acceptances of the Prot ocol Amending the TRIPS Agreement, done at 
Geneva on 6 December 2005, he informed the Council that since its meeting in October, the following 
Members had deposited their instruments of accep tance:  Brazil on 13 November;  Morocco on 2 
December;  and Albania on 28 January  (documents  WT/Let/636, 638, and 639, respectively).  The 
Secretariat had circulated an update to the no te on the status of acceptances of the Protocol 
(IP/C/W/490/Rev.4) and would contin ue to update it periodically.  As Members were aware, the 
Protocol was open for acceptance by Members until 31 December 2009 or such later date as might be 
decided by the Ministerial Conference.  He encour aged those Members that had not yet notified their 
acceptance of the Protocol to ensu re that necessary measures were being taken in their capitals to 
allow the consideration of the acceptance in a timely fashion. 
102. The Council took note  of the information provided. 
L. OBSERVER STATUS FOR INTERNATIONAL INTERGOVERNMENTAL ORGANIZATIONS  
103. The Chairman  recalled that a list with 17 pending re quests for observer status in the TRIPS 
Council by other intergovernmental organizations was contained in document IP/C/W/52/Rev.11.  
The Council had discussed these pending requests at its previous meetings, but had not been able to 
reach consensus on any of them.  At its last mee ting, the Council had requested that the Chair to 
continue his consultations on the re quest for observer status from the CBD secretariat.  He said that he 
had been in touch with some of th e delegations most interested in this matter but that, unfortunately, 
he was not in a position to report any developments concerning this request. 
104. The representative of India  said that his delegation appreciated the Chair's efforts and those of 
his predecessors to find a solution to the long-pending i ssue of observer status for the CBD secretariat.  
His delegation appreciated the flexibility shown by  one delegation that, without prejudice to its 
position regarding the issue of permanent observer st atus, had signalled that it might be possible to 
make progress in this particular case followi ng the model used in the Special Session of the 
Committee on Trade and Environment and the Nego tiating Group on Trade Facilitation, namely, by 
inviting the CBD secretariat as an ad hoc invitee on a meeting-by-meeting basis. 
105. He reiterated the concerns on this issue that his delegation had expressed in the Council's last 
few meetings.  Being aware of the 17 pending requ ests, he felt that the CBD represented a special 
case due to its direct relevance to the issues bei ng discussed in the Council.  Members were engaged 
in the Council, and elsewhere in the WTO, in discu ssions that had a direct relationship with the CBD.  
He said that the Council had three permanent agenda  items directly relevant to the CBD, including 
one on the "Relationship between the TRIPS Agreemen t and the Convention of Biological Diversity".   IP/C/M/59 
 Page 21 
 
 
  As several Members had mentioned during the Council's discussion on TRIPS and the CBD, work 
related to the CBD was being carried out in other organizations and there was a need for coherence 
between these endeavours.  The presence of the CBD secretariat would help the WTO's coherence 
mandate, and Ministers at Doha had also recognized in paragraph 30(ii) of the Doha Declaration the 
importance of granting observer status to MEA secretariats. 
106. Moreover, about 80 Members had co-sponsored  the disclosure proposal, which sought to 
enhance mutual supportiveness between the TRIPS Agreement and the CBD.  The request by the 
CBD secretariat should be decided positively and e xpeditiously.  Until then, an ad hoc invitation 
should be extended on a meeting-by-meeting basis, as had been done in CTE SS and the Negotiating 
Group on Trade Facilitation. 
107. The representative of Egypt, speaki ng on behalf of the African Group , said that his delegation 
was aware of the 17 pending requests for observer st atus in the Council and their importance for its 
work.  For the African Group, the request from the CBD  secretariat was particularly relevant due to 
the centrality of TRIPS/CDB for the Group.  He a ppreciated the positions taken by certain Members 
with regard to the admissions of observers acr oss WTO bodies.  In particular, he applauded the 
flexibility shown by some of those Members in th eir willingness to allow the CBD secretariat to be 
admitted as an ad hoc attendee or ad hoc invitee,  to be extended from one meeting to the next, 
pending the resolution of the broader principle.   He called upon other Members to accept such an 
invitation in order not to create further obst acles for the Council's substantive debate.   
108. The representative of Ecuador  said that it was obvious that if Members had three items on the 
Council's agenda which dealt with the relationshi p between the CBD and the TRIPS Agreement, the 
organization mainly responsible for the implementa tion of that Convention should be present at the 
Council's meetings.  The Doha Ministerial Decl aration recognized the importance of granting 
observer status to the secretariats of multilateral e nvironmental agreements with a view to increasing 
interaction between trade and environment.  The CBD secretariat's presence would facilitate such 
interaction and coherence.  He called upon Members who were reticent to accept the CDB 
secretariat's request to consider its approval as soon as possible and, until such approval was given, to 
permit its participation in regular meetings on an ad hoc basis, to be agreed from one meeting to the 
next. 
109. The representative of Brazil  reiterated its position that the CBD secretariat should be accepted 
as an observer to the Council.  The relationship between the TRIPS Agreement and the CBD was a 
permanent item on the Council's agenda, part of th e Doha Round mandate and also the object of a 
number of written communications and proposals circulat ed in the Council.  The fact that there were 
several pending requests for observer status presen ted to the Secretariat by other international 
organizations should not prevent the Council from granti ng observer status to the CBD secretariat.  In 
this regard, he appreciated the flexibility shown by  Egypt and India and by other developing countries 
and was willing to be flexible in accepting the pr oposal made by India and Egypt that the CBD 
secretariat be given an ad hoc meeting-by-meetin g invitation until the request for its permanent 
observer status was approved. 
110. The representative of Bolivia  said he was interested in the requests for observer status from 
certain intergovernmental organizations, since thei r participation would contribute constructively to 
the debate in the Council.  He felt that repr esentatives of regional organizations, such as the 
Organization of American States, the ACP and others, should also pa rticipate in the discussions.  He 
regretted the fact that a decision on the matter w as being delayed and wished to contribute to the 
finding of a solution to the matter as soon as possible.   
111. The representative of Colombia  supported the statements made  by previous delegations and 
the proposal by India, Egypt, Ecuador and Brazil. IP/C/M/59 
Page 22  
 
  112. The representative of China
 said that the CBD secretariat had direct interest in at least three 
agenda items of the Council and presented a sp ecial case among the 17 pending requests.  He 
requested the Chair to continue his consultations with relevant Members to find a solution as soon as 
possible, at least on an ad hoc basis.   
113. The representative of Indonesia  said it supported the  CBD secretariat's request.  The 
knowledge and experience it possessed could enrich the Council's discussions.  The fact that not all 
the WTO Members were parties to the CBD s hould not prevent Members from embracing the CBD 
secretariat as an observer.  The purpose of observer st atus was to enable both Organizations to follow 
discussions on matters of mutual interest.   
114. The representatives of Cuba  and Cameroon  supported the statements made by the previous 
delegations. 
115. The Chairman  noted that there had been a propo sal from the floor to admit the CBD 
secretariat on an ad hoc and meeting-by-meeting basis as observer to the Council and inquired whether any delegation wished to comment on the proposal or had any objections to it. 
116. The representative of the United States
 said that her delegation opposed giving observer status 
to the CBD secretariat even on an ad hoc and meeting-by-meeting basis. 
117. The Chairman  suggested that the incoming Chair conti nue the consultations on the request for 
observer status received from the CBD secretariat. 
118. The Council so agreed . 
M. OTHER BUSINESS  
 (i) Letter from the Chair of the Genera l Council concerning notifications and other 
information flows 
 
119. The Chairman  informed the Council that he had recei ved a letter, dated 26 February 2009, 
from the Chair of the General Council, Ambassador Ma teus, recalling that the in formal meeting of the 
Trade Policy Review Body held on 9 February 2009 had initiated a process of monitoring recent trade 
developments associated with the current global fi nancial and economic crisis.  At that meeting, 
Ambassador Agah, the then Chair of the Trade Polic y Review Body, had noted that if this exercise 
were to be carried out successfully and were to be  useful to the WTO member ship, the availability of 
comprehensive, accurate and timely information would be crucial.  Furthermore, in concluding that 
meeting, he had stated that he would be writing to the Chair of the General Council to request that he 
contact the Chairs of all WTO Councils and Committ ees to invite them to consult with Members on 
ways to improve the timeliness and completeness of notifications and other information flows on 
trade measures falling within their respective areas of  responsibility.  Furthermore, the Chair of the 
General Council had written that, in response to this request, he would be very grateful the Chair of 
the TRIPS Council would arrange these consultations to take place at the earliest possible date and 
inform the Chair of the Trade Polic y Review Body of the results.   
120. He suggested that, in response to this letter,  the Council request the incoming Chair of the 
TRIPS Council to consult on the matter. 
121. The Council so agreed . 
  IP/C/M/59 
 Page 23 
 
 
   (ii) Public health dimension of the TRIPS Agreement 
 
122. The Chairman  recalled that the delegations of Brazil and India had indicated that they wished 
to raise under "Other Business" the issue of pub lic health dimension of the TRIPS Agreement. 
123. The representative of Brazil  said that, at the last General Council meeting, his delegation 
together with India had raised the issue of seizure of goods in transit on grounds that they might be 
violating intellectual property rights registered in th e country of transit, which they believed to be a 
serious violation of WTO disciplines.  More spec ifically, the issue concerned the seizure by the 
Netherlands' authorities of a consignment of the generic drug losartan potassium.  His delegation was raising this matter also in the TRIPS Council b ecause this was the forum where the intellectual 
property aspects of the matter could be more fully  appreciated and because his delegation had since 
better analyzed the factual circumstances and the legal implications of that epis ode.  While the seizure 
of any goods in transit, be they medicines or not, on grounds that they may be violating intellectual 
property rights registered in the country of tran sit was in itself a violation of GATT Article V and 
other GATT obligations, his delegation would conf ine its statement in the TRIPS Council to the 
intellectual property aspects and the public health dimension of the matter. 
124. He said that, on 4 December 2008, Dutch aut horities had seized a cargo of generic medicines 
en route  from India to Brazil.  The cargo had consis ted of 570 kilos of losartan potassium, an active 
pharmaceutical ingredient used in the production of  medicines for arterial hypertension that were 
being sold by the Indian exporter Dr. Reddy's to  the Brazilian importer EMS.  The cargo was held 
back by Dutch authorities for 36 days.  After this period, the cargo had been released and, instead of 
continuing to Brazil, was directed back to Indi a.  Losartan potassium di d not enjoy intellectual 
property rights in India, the country of origin, nor was it protected in Brazil, the country of destination. 
125. At the time of the General Council meeting, his delegation had assumed that the seizure of the 
cargo had been motivated by a request lodged by the owner of patent rights on losartan potassium in 
the Netherlands on grounds that such rights were be ing violated.  Since that meeting, new evidence 
collected indicated that the Dutch authorities had acted and had regularly been acting ex officio , 
following procedures required or authorized by EC  Council Regulation 1383 of 22 July 2003, which 
referred to customs actions regarding goods suspect ed of infringing intellectual property rights.  
While the EC delegation had provided clarificati ons in the General Council meeting suggesting that 
this had been a minor, exceptional and inconsequential incident, his delegation was now in the 
position to assert that such incident was neither mi nor, nor exceptional, nor without consequences.   
126. At the General Council, the European Communitie s had pointed out that the cargo had been  
"a small shipment of drugs worth 55,000 Euros".  In this regard, he noted that the size of the shipment 
was in no way relevant to ascertaining th e egregious nature of the Dutch action vis-à-vis  WTO 
disciplines.  Furthermore, despite its low monetary  value, that shipment of 570 kg would have been 
enough to treat 300,000 Brazilian patients for a fu ll month suffering from hypertension, a deadly 
disease if not treated properly.  One of the benefits of generic medicines was precisely the fact that they were less costly than those that enjoyed pa tent protection.  Therefore, lower monetary values 
should in fact be expected when dealing with ship ments of this kind and did in no way mitigate or 
justify the action of the customs authorities.   
127. Furthermore, he said that the incident in question had not been exceptional but occurred rather 
frequently.  In letters addressed to the Director-Gen eral of the WTO, Pascal Lamy, and of the WHO, 
Dr. Margaret Chan, 16 NGOs had expressed their grave concern with public health implications of the 
episode and had mentioned three additional cases of drugs seizure by the Dutch authorities.  Two of 
them had involved medicines headed for Peru and one for Colombia.  His delegations' own inquiries 
had led to the identification of more than 12 other instances regarding consignments of generic drugs IP/C/M/59 
Page 24  
 
  in transit through Dutch territory in 2008 alone.  These consignments had been heading for at least 
seven different developing countries in South America and Africa.  
128. Regarding the argument that the losartan incide nt had had no serious consequences because 
the parcel had subsequently been released, he sa id that his delegations' inquiries had led to more 
disturbing findings.  First, the shipment had not followed its original course to Brazil due to an 
autonomous decision of the exporter to bring it back to  India.  Such action by the exporter had been a 
result of negotiations with the patent holder in th e Netherlands, who had threatened to request the 
destruction of the apprehended goods.  Secondly,  his delegation had evidence indicating that around 
half of last year's Dutch seizures had resulted in the destruction of the goods in transit.   
129. He said that the consequences of these indi vidual acts were not limited to that specific 
transaction.  In letters to the European Commi ssioners for Trade and for Taxation and Customs 
Union, the humanitarian organization Médecins Sans Frontières had voiced concerns that their 
activities of medicine distribution to needy populat ions in the developing world could be severely 
hampered "if on key transit routes the risk exists  that supplies can be regularly subjected to 
interception based on assertion of patent infringement in the transit country".  The exact same concern 
had been articulated by the William J. Clinton Foundation, on behalf of  UNITAID, regarding the 
seizure of generic drugs used in AIDS fighting hum anitarian programmes in Africa.  These were the 
most disquieting systemic consequences of the be haviour of the Dutch authorities under the umbrella 
of EC Council Regulation 1383/2003.   
130. Regarding the substantive implications of th e Dutch customs' actions in implementing EC 
Council Regulation 1383, he said that even a merely  perfunctory examination of the WTO disciplines 
led to the conclusion that the Dutch authorities had no right to do what they did.  They should not 
have detained the consignment, obs tructed or delayed its transit, nor prevented its arrival in Brazil 
based on a claim of violation of patent rights.  He said that the medicines seized did not enjoy patent protection either in the country of exportation or in the country of importation.  Whether or not the 
medicines were protected by patent rights in the c ountry of transit was utterly irrelevant as they had 
not been not heading for the Dutch market.   
131. Trade in generic medicines was not only perf ectly legal under international intellectual 
property law, it was also desirable from a developmen t and public health perspective.  The transit of 
generic medicines could not possibly be construed as a violation of patent rights in the country of 
transit.  The TRIPS Agreement did not allow such in terpretation.  Its Article  28 gave a patent owner 
the exclusive rights of "making, using, offering fo r sale, selling or importing" in/to/from the market 
where those rights existed, but the transit of goo ds neither affected, nor diminished any of the 
exclusive rights conferred by a patent.  The Du tch authorities' decision to prevent the losartan 
consignment from reaching Brazil was a clear case of  extraterritorial appli cation of Dutch patent 
rights.  That principle of territoriality was familiar to all Members and was a keystone of the international IP system.   
132. Such excessive and inappropriate interpretation of IP rights, granting extraterritorial effects, 
ran counter to the objectives and purposes of th e TRIPS Agreement and effectively gutted the 
provisions granting TRIPS flexibilities to developing count ries.  Article 7 stated that the "enforcement 
of intellectual property rights" must be done "in a manner conducive to social and economic welfare".  
Article 8 upheld Members' rights to "protect public  health and nutrition".   He said that TRIPS 
flexibilities were so vital that the WTO Ministeria l Conference had decided to strengthen them by 
adopting the Doha Declaration on the TRIPS Agreem ent and Public Health which had also paved the 
way to the Paragraph 6 System, a much needed and long awaited response to the specific situation of 
countries with insufficient or no manufacturi ng capacity in the pharmaceutical sector.   IP/C/M/59 
 Page 25 
 
 
  133. It was obvious that the actions of the Dutch authorities were not in conformity with WTO 
disciplines in general, nor with the flexibilities under the TRIPS Agreement.  These disciplines and 
flexibilities were also under threat  in other international forums , where some developed countries 
were attempting to adopt TRIPS-plus resolu tions.  The SECURE Working Group in the World 
Customs Organization and the IMPACT initiative in the World Health Organization were examples of 
this concerted effort.  If such a ttempts succeeded, the Dutch authorities' actions could then take place 
with the blessing of those organizations.  The lo sartan episode and the other incidents caused great 
concern to developing countries because they essentia lly imperilled the public health dimension of the 
TRIPS Agreement.  
134. Since its first statement at the General Counc il meeting in February 2009, his delegation's 
apprehensions had increased considerably due to the preliminary results of its ongoing inquiries.  It 
would therefore like to seek guidance and clar ifications from the European Communities on the 
following questions:  how could the Dutch authorities ' actions be reconciled with WTO disciplines;  
whether the EC Council Regulation 1383/2003 requir ed or justified such actions by the customs 
authorities of the Communities;  and, above all,  how the Communities would ensure that such actions 
would not reoccur.  
135. The representative of India  requested that the following statement it had made at the General 
Council's meeting of 3 February 2009 be in cluded in the minutes of the present meeting.2 
136. "The representative of India  said this was a very important issue which had deep systemic 
implications for all.  In the past few mont hs, Dutch customs authorities had seized several 
consignments of generic drugs of Indian companies on grounds of alleged IP violations.  Seizure of 
the consignment of losartan potasssium in December 2008 was one such case of what was emerging 
as a clear pattern.  Such instances caused India gr eat concern due to their systemic and far-reaching 
implications.  In addition to going against the spir it of a rule-based trading system and impeding free 
trade, such acts represented a distorted use of th e international IP system and circumscribed TRIPS 
flexibilities.  Repeat of such actions could have an  impact on exporters' choice of transit routes, which 
could affect the economics of trade in pharmaceutic al products, and consequent ly have a deleterious 
effect on access to essential drugs and public he alth budgets of recipient countries.  Losartan 
potassium, used in the treatment of hypertension, was a perfectly IP-legitimate generic drug in both 
India and Brazil, and its trade was also perfectly  legitimate.  The WTO rule-based system provided 
for freedom of transit by the most economical and convenient routes and without unnecessary delays and restrictions.  The act of seizure by the Dutch authorities was therefore a denial of the rule-based 
system Members sought to build and strengthen in the WTO.  The concept of territoriality was a 
keystone in the edifice of the TRIPS Agreement.  There were no indications that the drug consignment in question had been meant for the mark ets of the EC.  Seizure, and initiating procedures 
for destruction of such consignments, violated this  key principle.  Members had always strived for a 
balance between public health concerns and protec tion and enforcement of IPRs.  The Decisions on 
public heath were a valuable part of the WTO acquis a nd needed to be adhered to in letter and spirit.  
It was ironic that while, on one hand, the WTO ha d taken steps to promote access to affordable 
medicines and remove obstacles to proper use of TRIPS flexibilities, on the other hand some Members sought to negate the same by seizing drug consignments in transit.  The importance of 
generic drugs and their essentiality might vary in in verse proportion to the level of development of a 
country.  Therefore, high importance was attached to generic drugs in developing countries, and 
particularly in the LDCs.  Barriers to legitimate trade of generic drugs w ould seriously impair the 
efforts of organizations like Medecins Sans Frontie res, the Clinton Foundation, the Bill and Melinda 
Gates Foundation and many othe r organizations engaged in pr oviding medicines and improving 
public health in the least-developed parts of the world. 
                                                     
 
2 As reflected in paragraphs 75-77 of document WT/GC/M/118 containing the record of the General 
Council's meeting of 3 February 2009. IP/C/M/59 
Page 26  
 
  137. He also wished to draw attention to another trend that was acquiring huge dimensions – the 
effort to implement the protection and enforcement of IPRs in a maximalist manner and thereby upset 
the delicate balance between rights of IPR holde rs and the public policy objectives under the TRIPS 
Agreement.  A coordinated approach was being w itnessed in several interna tional fora, such as the 
WCO, WHO, Universal Postal Union (UPU), etc. to promote the IP maximalist agenda.  India also 
noted with dismay the efforts by some Members to  link safe and efficacious, but low-cost, generics 
with counterfeit medicines, which was essentially an IP R issue.  There was an attempt to enlarge the 
definition of counterfeit beyond its definition in th e TRIPS Agreement, in order to set maximalist 
enforcement norms, and to include TRIPS-plus provisi ons in RTAs.  These were subtle and concerted 
ways of circumscribing the flexibilities of the TRIPS Agreement.  They also ran counter to the spirit 
of the TRIPS Agreement, which w as a minimum standards ag reement.  This was certainly counter to 
the understanding given to developing countries when  the TRIPS Agreement was being negotiated.  
India attached the highest importance to protection and enforcement of IPRs in accordance with the 
TRIPS Agreement.  However, it did not see th e Agreement as divorced from the objectives and 
principles set out in its Articles 7 and 8.  Efforts to enshrine new, maximalist TRIPS-plus provisions 
in other fora would seriously undermine the de licate balance in the TRIPS Agreement and raise 
systemic issues.  Regarding the seizure of various  drug consignments by the Dutch authorities, India 
had raised this issue in the Council with the exp ectation that the EC would urgently review the 
relevant regulations and the acti ons of the national authorities based  on such regulations, and bring 
them in conformity with the letter and spirit of the TRIPS Agreement and the rule-based WTO 
system." 
138. In addition, the representative of India said that his Government had taken up the issue 
bilaterally with the European Communities and the Du tch Government to urgen tly review the relevant 
regulations and the actions of Dutch authorities based on such regulations, and bring them into 
conformity with the letter and spirit of the TRI PS Agreement, the rules-based WTO system and the 
Doha Ministerial Declaration on the TRIPS Agreemen t and Public Health.  Unfortunately, India was 
still awaiting a response.   
139. Continuing, he said that the Dutch customs authorities had "confiscated" the consignments on 
grounds of alleged violations of domestic patents and trademarks.  This was not a case of "temporary 
detention" since some consignments continued to be held over months.  Moreover, procedures for the 
destruction of the consignments were also initiate d.  Four such instances had been reported from the 
Netherlands, in which the consignments had been he aded for Brazil, Peru and Colombia.  While one 
consignment had been returned to the exporter after being held for over a month, the fate of the other 
three was still unclear.  The generic drugs in ques tion were perfectly legitimate in both India and the 
destination countries, and trade in generic drugs was not only legitimate but also desirable from a 
public health perspective.   
140. The action of the Dutch customs authorities to se ize generic drugs, traded  between developing 
countries in full conformity with international di sciplines, ran counter to the spirit of the TRIPS 
Agreement and the resolution 2002/31 of the Commi ssion on Human Rights on the right to enjoy the 
highest standard to physical and mental health.  Measures of this nature had an adverse systemic 
impact on the legitimate trade of generic medicin es, South-South commerce, national public health 
policies and the principle of universal access to medici nes.  The importance of generic drugs to public 
health in developing countries a nd particularly in LDCs was obvious .  Such barriers to legitimate 
trade of generic drugs would also seriously impair th e efforts of civil society organizations engaged in 
providing medicines and improving pub lic health in the least developed parts of the world.  He said 
that the MSF had recently stated that they regularly  transported and temporarily stored medicines in 
Europe, en route  to users in developing countries.  In a letter to the EC Trade Commissioner, the MSF 
had expressed concern over the potential consequences of  the seizure of medicines in transit in the 
European Communities, destined for developing co untries.  The MSF had also asked the European  IP/C/M/59 
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  Communities to clarify its position regarding the implementation of EC Regulation No. 1383/2003 
with regard to pharmaceutical products.   
141. In addition to going against the spirit of the rules-based trading system and impeding free 
trade, such acts represented a distorted use of th e TRIPS Agreement and the international IP system, 
and reduced the flexibilities enshrined in TRIPS.  Article 41.1 of the Agreement provided that 
enforcement procedures "shall be applied in such a manner as to avoid the creation of barriers to 
legitimate trade and to provide for safeguards agains t their abuse" and Article 41.2 provided that the 
procedures should be "fair and equitable".  These we re "General Obligations" that ran through all of 
Part III of the Agreement on the enforcement of IP Rs.  Measures taken by Dutch authorities clearly 
created barriers to the legitimate trade in generic medicines, particularly where there was no risk of 
diversion of the medicines to the internal market.  
142. Members had always strived for a balance betw een public health concerns on the one hand, 
and protection and enforcement of IPRs on the othe r.  The Doha Ministerial Declaration on TRIPS 
and Public Health had recognized "the gravity of the public health problems afflicting many 
developing and least-developed countries" and had stressed "the need for the WTO Agreement on 
Trade-Related Aspects of Intellectual Property Righ ts (TRIPS Agreement) to be part of the wider 
national and international action to address these probl ems".  In paragraph 4 of that Declaration, WTO 
Members had agreed that "the Agreement can and should be interpreted and implemented in a manner 
supportive of WTO Members' right to protect public h ealth and, in particular, to promote access to 
medicines for all".  The European Communities' st ated commitment to the full implementation of the 
Doha Declaration on TRIPS and Public Health a nd the WTO Decision of 30 August 2003 was widely 
known.  The Measures taken by the European Comm unities in this case, therefore, caused serious 
confusion in this regard.  
143. It was ironic that while on the one hand th e WTO had taken steps to promote access to 
affordable medicines and remove obstacles to prope r use of TRIPS flexibilities, some Members on the 
other hand sought to negate the same by seizing drug  consignments in transit and creating barriers to 
legitimate trade.  Among other things, the implem entation of the WTO Decision of 30 August 2003 
regarding the export of pharmaceutical products to  countries with inadequate manufacturing capacity 
(the Paragraph 6 System) would beco me even more problematic if pate nt rights, which were territorial 
by definition, were enforced vis-à-vis goods in transit.   
144. The concept of "territoriality" was a keystone in  the edifice of the TRIPS Agreement.  There 
were no indications that the drug consignment ha d been meant for the ma rkets of the European 
Communities.  Seizure, and initiating procedures for d estruction of such consignments, violated this 
key principle.  The WTO rules-based system provi ded for freedom of transit by the most economical 
and convenient routes and without unnecessary delays and restrictions.  The act of seizure by the 
Dutch authorities was therefore a denial of the rul es-based system that Members sought to create and 
maintain in the WTO.  Repetition of such actions c ould have an impact on exporters' choice of transit 
routes, which in turn could affect the economics of trade of pharmaceutical products and 
consequently, have a deleterious effect on access to  essential drugs and public  health budgets of 
recipient countries.  
145. He wished to draw Members' attention to anot her trend that was acquiring huge dimensions.  
This was the effort to implement the protection a nd enforcement of IPRs in a maximalist manner and 
thereby upset the delicate balance between rights of IPR holders and the public policy objectives 
under the TRIPS Agreement.  A coordinated approach  was being witnessed in several international 
forums like the World Customs Organization, Worl d Health Organization, Universal Postal Union 
and others to promote the IP maximalist agenda.  He said that his delegation had noted with dismay 
efforts by some Members to link safe and effi cacious but low cost generics with counterfeit 
medicines, which was essentially an IPR issue.  Th ere was an attempt to enlarge the definition of IP/C/M/59 
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  counterfeits beyond its definition in the TRIPS Agre ement, to set maximalist enforcement norms, and 
to include TRIPS plus provisions in RTAs.  These we re subtle and concerted ways of circumscribing 
the flexibilities of the TRIPS Agreement which ra n counter to the spirit of TRIPS as a minimum 
standards agreement, and to the understanding given to developing countries when the TRIPS 
Agreement was being negotiated.  
146. He said that India attached the highest importa nce to the protection and enforcement of IPRs 
in accordance with the TRIPS Agreement.  However,  the Agreement could not be viewed in isolation 
from the objectives and principles set out in its Articl es 7 and 8.  Efforts to enshrine new, maximalist 
TRIPS-plus provisions in other forums would serio usly undermine the delicate balance in the TRIPS 
Agreement and raise systemic issues.  
147. The representative of the European Communities
 said that his delegation had been fully 
committed from the outset to facilita ting the access to medicines for countries in need.  There was no 
change in the EC policy in this respect and he failed to understand why so me delegations believed 
there was some sort of "conspiracy" to reduce access of medicines.  As Members knew, the European Union had been one of the main promoters of the Doha Declaration and TRIPS flexibilities.  It had 
implemented the waiver Decision of 30 August 2003 on compulsory licensing into EC legislation 
(Regulation 816/2006) and had ratified the Protoc ol amending the TRIPS Agreement (30 November 
2007).  The European Communities had also adop ted a regulation on tiere d-pricing (Regulation 
953/2003) which encouraged European pharmaceutical  producers to significantly increase supplies of 
medicines at lower prices to countries in need while  keeping higher prices for the same products in 
Europe. 
148. Last but not least,  the European Union had also funded a vast number of projects and 
programs in developing countries ranging from resear ch to production, to procurement and to 
delivery, including quality control.  As examples, he  quoted the EU Africa Clinical Trial Partnership 
with a financing frame of €800 million and the contribution of €672 million since 2002 by the European Union to the Global Fund for AIDS, Tube rculosis and Malaria.  Such contributions, 
however, had to be complemented by other measures as the problem of increased access to medicines 
required a wider package of actions.  For example,  prioritizing national budgetary expenses to public 
health and reducing taxes and tariffs on imports of medicines were other examples of action at 
national level which could contribute to improving access to medicines. 
149. At the same time, his delegation maintained th at it was extremely important to allow customs 
authorities to control goods in transit suspected of infringing intellectual property rights.  This was the 
only way to stop traffic of potentially dangerous pr oducts, such as fake medi cines, even when the 
shipments were destined for any coun try.  In fact, it was likely that th e EU customs actions in the past 
had saved lives in the final destination countries which were often developing countries.  Many 
dangerous goods, such as counterfeit medicines, we re often shipped to de veloping countries via 
European ports and airports. While control by cust oms was sometimes difficult due to the complexity 
of the products, his delegation believed that customs'  role was crucial to prevent the flow of fake 
medicines in transit from reaching the populations in developing countries. 
150. In 2007, out of the 70 or 80 million counterfe it and pirated goods intercepted by the European 
customs, 40% had been intercepted in transit.  Al so, in 2007, EU customs statistics had revealed a 
significant increase of 50% (compared to 2006) in tr ade of fake medicines.  34% of these counterfeit 
medicines had originated in India.   
151. At the end of 2008, EU customs had initia ted a two-month operation called MEDI-FAKE 
targeting illegal medicines entering the EU territory .  During this period, six million items concerned 
medicinal products.  The results of this operation confirmed a significant and worrying level of trade  IP/C/M/59 
 Page 29 
 
 
  in illegal medicines indicating a potentially serious pub lic health and safety issue, which fully justified 
the control of medicines in transit suspected of infringing IP rights. 
152. Regarding the question of compatibility of the EU customs legislation on IPR enforcement 
with the TRIPS Agreement, he said that the regul ation in question (Regulation 1383/2003) aimed to 
protect legitimate trade in goods covered by intellect ual property rights, as well as health, safety and 
consumer expectations.  The legislation was fully in line with the WTO and TRIPS requirements, in 
terms of both scope and coverage of customs intervention.  The TRIPS Agreement specifically set out 
the minimum requirements for customs border measures regarding the importation of goods suspected of infringing certain intellectual property rights.  Its Article 51 and footnote 13 clearly allowed a 
Member to apply border measures to goods under othe r customs situations, including in transit and 
including patents.  To his knowledge, other WTO Members including India applied border measures 
to goods in transit which were suspected of infringing intellectual property rights. 
153. He emphasized that it was not the customs authorities that decided whether goods were 
infringing IP rights.  The procedure was to detain, not seize, goods suspected of infringement and contact the right holder.  It was then up to the right holder to pursue the matter through the court under 
national provisions.  If the right holder decided not  to pursue the case, the goods were released by 
customs as had been the case with the Indian shipment.  If the right holder did bring the case to court, 
it was up to him to prove that the goods were infringi ng IP rights and it was the court that decided on 
the future handling of the goods. 
154. He added that the legality or the alleged lega lity of the goods in the country of origin or 
destination were not a relevant factor as customs o fficers or any other national authority were not in a 
position to verify the legality in any country but their own, and even there they did not do it 
themselves but left it for a court to decide.  If cu stoms authorities were to apply the law of other 
countries, that would amount to extra-territoriality, and not the other way around.   
155. His delegation therefore believed that the pro cedure which had taken place was fully in line 
with the relevant TRIPS provisions, including Article  55, which set out the time-limit of ten working 
days for suspending the release of the goods, with a po ssible extension for another ten working days if 
an analysis needed to be conducted. 
156. With regard to the case of the Indian medicines in  question, he said that the facts had not been 
correctly stated.  This had not been an ex officio  action by the Dutch authorities but a response to a 
request made by a US company which owned patent  rights over the medicines in question in the 
Netherlands.  Secondly, the Dutch customs authoritie s had temporarily detained, not seized, the drugs.  
Lastly, as had been mentioned, a settlement betw een the right holder and the importer had been 
achieved and the goods had been sent back to India.   
157. He added that, from the health perspective, a lthough this was not relevant from the legal point 
of view, there was no risk in this  present case of any shortage of Losartan in the Brazilian market.  
Losartan existed in the Brazilian ma rket in 29 different products, 14 blended and 15 generic versions 
manufactured by 23 different companies.  
158. In the case of an abusive complaint by the right  holder, the right holde r would be liable for 
any damages incurred.  This was an important opti on that the Indian exporter could have used but 
apparently did not choose to do so. 
159. In conclusion, he affirmed the European Union's commitment to a policy of access to 
medicines for countries in need.  At the same time, the rising threat of counterfeit medicines meant 
that customs control, including of goods in transit,  were justified.  His de legation remained open to IP/C/M/59 
Page 30  
 
  discuss bilaterally any concerns that any Member might have with the enforcement of EC Customs 
Regulation. 
160. The representative of Ecuador
 said that the flexibilities provided for in Articles 7 and 8 of the 
TRIPS Agreement were indisputable and had been duly interpreted by decisions emanating from the 
WTO itself. The basic principles of public health sh ould not be undermined or limited in any way.  
Regarding the EC argument that Article 51 of th e Agreement provided legal support for the unlawful 
seizure of goods, he said that this provision refe rred to the importation of counterfeit trademark or 
pirated copyright goods.  In the case at issue ther e had been no importation of goods, only transit, nor 
had there been any counterfeiting or  piracy, concepts which had nothing to do with the alleged rights 
of patent owners.  In addition, these measures were  inconsistent with Artic le 41.1 and 41.2 of the 
Agreement, since their implementation was crea ting unnecessary barriers to legitimate trade, was 
unnecessarily complicated, and entailed unwarranted delays.  
161. This violation of the basic principles of public health in developing countries was another 
illustration of the manoeuvres by various developed countries in the framework of WIPO, the WHO, 
the WCO, UPOV and the WTO, aiming at the mandatory implementation of extraterritoriality in 
intellectual property rights, negatively influencing th e free transit of goods of legitimate origin, and 
thus undermining the proper balance between pu blic health concerns and the protection and 
enforcement of intellectual property rights. 
162. The new Ecuadorian constitution provided that "the application of international trade 
instruments shall not undermine, directly or indirect ly, the right to health, access to medicines, inputs, 
services, or scientific and technological progress".  Therefore, Ecuador would not under any 
circumstances permit or endorse, in this forum or  any other forum, measures or commitments that 
undermined its autonomy in adopting public health  policies and its authority to implement the 
relevant legislation on the basis of the recognized prin ciple of "territoriality".  The type of action in 
question was prejudicial to the process of consu ltation and agreement being conducted in the Doha 
intellectual property negotiations, and forced Ec uador to reflect on its position in that regard. 
163. The representative of Egypt, speaki ng on behalf of the African Group , thanked the 
delegations of Brazil and India for raising this issue and said that the African Group was concerned 
about recent developments relating to IPR enforcem ent that negatively affected public health in 
developing countries.  Such developments had occurred in a manner that distorted the TRIPS 
Agreement, and were symptomatic of a broader pu sh for global enforcement provisions that went 
beyond TRIPS requirements.  The recent incident s affecting legitimate generic medicines trade 
between India and Latin American countries were  part of this development, including at 
intergovernmental organizations such as the Wo rld Customs Organization, the World Health 
Organization, including specifically the issue of the confusion of health concerns with the protection 
of IP rights, as well as the World Intellectual Property Organization.  
164. Such developments also ran counter to the spir it and the letter of the Doha Declaration on the 
TRIPS Agreement and Public Health, and Members'  commitment to ensure that the Agreement and 
IPR protection were part of the solution to the public health problems and priorities of African countries, other countries and affected consumers the world over. 
165. The representative of Nigeria
 requested that the following statement it had made at the 
General Council's meeting of 3 Fe bruary 2009 be included in the minutes of the present meeting.3 
                                                      
3 As reflected in paragraph 84 of document WT/GC/M/118 containing the record of the General 
Council's meeting of 3 February 2009.  IP/C/M/59 
 Page 31 
 
 
  166. "The representative of Nigeria  thanked India and Brazil for their information concerning the 
seizure of the consignments of generic drugs.  As  a developing country that had endeavoured to 
benefit from the dividends of the D oha Declaration on TRIPS and Public  Health, Nigeria believed that 
Members should ensure that they adhered to the lette r and spirit of that Declaration.  The importance 
of generic drugs for countries with no capacity to  manufacture pharmaceutical products could not be 
over-emphasized.  In the same vein, Nigeria urge d Members to avoid taking measures that would 
adversely affect the freedom of transit by the most  convenient and economic routes.  Like Brazil and 
South Africa, Nigeria encouraged the Netherlands and/ or the EC to clarify the circumstances and legal 
bases in the present case.  Nigeri a expected the balance between public health concerns and 
enforcement of IP rights to be respected, and ther efore urged Members to ensure that the enforcement 
of IP rights was not used to impede legitimate trade." 
167. The representative of China  said that generic medicines were not substandard or illegal and 
should not be confused with counterfeit or pirate d medicines.  Trading in generic medicines was 
desirable and legal in the framework of TRIPS.  That was the reason why Members had agreed to the 
Doha Declaration on TRIPS and Pub lic Health and the so-called Paragraph 6 System.  Therefore, the 
decision to include the transit of cargo of generic medicines that had not b een headed for the Dutch 
market set a dangerous precedent.  China was gravely concerned with setting a precedent for 
extraterritorial enforcement of IPRs that could have critical systemic implications regarding the 
principle of territoriality, which was a fundamental  pillar of the international intellectual property 
regime. 
168. In addition, the measures taken by the Dutch au thorities ran against the right of freedom of 
transit provided for by Article V of the GATT Agreemen t.  China also believed that the functioning of 
the effective international IP system would be br eached by upsetting the equilibrium of private and 
public interests.  The protection of intellectual pr operty could not take precedence over the protection 
of more fundamental values such as the right to  protect public health.  The extraterritorial 
enforcement of patent rights could not be reconcile d with Articles 7 and 8 of the Agreement and the 
terms of the Doha Declaration on TRIPS and Public Health.  In this case, the decision taken by the 
Dutch customs authorities in effect repealed the Brazilian patients' access to safe and price-
competitive generic medicines.  China was also c oncerned about the systemic consequences of this 
case for the functioning of the Paragraph 6 System.  He said that his delegation would appreciate it if 
the European Communities could further clarify the ci rcumstances and the legal basis of the decision 
taken by Dutch authorities, and in particular how  the legal basis could be accommodated by the 
TRIPS Agreement and the Doha Declara tion on TRIPS and Public Health.   
169. The representative of Argentina  said that her delegation shared the concerns voiced by India 
and Brazil regarding the Dutch seizure of generic medicines in transit.  Argentina believed that 
authorities taking such decisions had to take in to account the necessity to facilitate access to 
medicines for developing and least-developed countr ies.  The detention of transiting goods in the 
Netherlands was not in line with Article V of GA TT, with the spirit of TRIPS and the flexibilities 
contained therein, nor with the Doha Declarati on on the TRIPS Agreement and Public Health.   
170. The representative of Cuba  said that generic medicines trade was of key importance for 
developing countries and LDCs.  Any decision that posed an obstacle to such trade would have serious repercussions and should be denounced in all possible fo rums.  The need to respect 
intellectual property rights could not be an obstacle to fulfilling the commitments made with respect 
to public health.   
171. The representative of Bolivia
 said that this was a matter of great concern for developing 
countries.  Trade and movement of generic drugs were regulated under th e multilateral agreements 
and should not be dealt with in such a way.  Deve loping countries were generally the ones having to IP/C/M/59 
Page 32  
 
  use such generic medicines and for that reason Bo livia believed that measures should be taken to 
avoid such situations in the future. 
172. The representative of Venezuela
 said that his delegation supported the request put forward by 
India and Brazil.  Generic medicines fell outside th e scope of TRIPS as they were linked to public 
health.  Human life did not have a price tag, and any lif e that was lost had to be considered a failure of 
multilateral trade, and was directly related to human  rights.  Venezuela therefore urged the European 
Communities to reconsider any actions which violat ed TRIPS standards.  The European Communities 
might have contributed to developing countries' programmes, but this was a specific case relating to trade in goods that was linked to public health.  C ontrary to what had been claimed, this was not a 
case of fake medicines.  Rather, this was a matter of trade between Brazil and India alone. 
173. The representative of Tanzania, speaking on behalf of the LDC Group,
 recalled that the LDC 
Group had always maintained high hopes and expecta tions regarding the Doha  Declaration on TRIPS 
and Public Health because of the millions of pe ople perishing in LDCs due to a lack of essential 
drugs.  Tanzania had been very much comforted by  the Paragraph 6 Decision which had promised that 
efforts would be made to address the problems aff ecting the flow of essential drugs to LDCs.  
Therefore, his delegation maintained that anythi ng curtailing or intercepting the flow of essential 
drugs to LDCs should  be avoided.   
174. The representative of Pakistan  said that, while his delegation had little interest in this specific 
case, it had serious concerns regarding two systemic questions that had been mentioned.  Regarding 
the European Communities' explanation that thei r intention was to save and protect lives in the 
destination market against counterfeiting medicin es, he said that generic medicines were not 
counterfeit medicines and saving lives in the destin ation market was not the responsibility of the 
transit country.  As Brazil had pointed out, the tran sit country was just providing for transit and had 
no rights to exercise control or apply its IPRs.   While the consignment in question might be small 
from the quantitative point of view, the issue surround ing it could have serious implications later. 
175. Secondly, it had to be recognized that in de veloping countries patented drugs, especially life 
saving drugs, were so expensive that thousands of people died due to non-affordability of those drugs, 
and in that case using generic drugs was the only option.  While not supporting counterfeit medicines 
under the guise of generic medicines, his delegati on defended the use of generic medicines to the 
maximum extent, especially in the context of public health. 
176. The representative of Switzerland  said that this case should not be portrayed as been either 
black or white.  The EC position to a large extent seemed to be in agreemen t with other delegations' 
views and Members shared the concerns and the main thrust of the measures.  There were two sides to 
this matter:  the legitimate demand for effective border measures to curtail international trade in 
counterfeit and pirated g oods on the one hand, and the access to legitimate generic medicines in 
developing and develope d countries on the other. 
177. While his delegation was aware of the sensitive interests at stake,  he was convinced that these 
interests were not opposed but could be reconcile d.  Effective protection and implementation of 
intellectual property rights were the key to provide a safe environment for consumers, and stable and 
predictable framework conditions conducive to trade and investment.  While enforcement of the law, 
including the enforcement of IPRs, was genera lly accepted as an essential pr econdition for a working 
legal system founded on the rule of law, IPR enforcem ent was also in the interest of consumers.  This 
was particularly true with regard to pharmaceutical s and the interests of patients who needed to be 
able to rely on safe products.  Article 51 of th e TRIPS Agreement provided a minimum standard for 
border measures covering counterfeit trademark and pira ted copyright goods but footnote 13 left it up 
to Members whether to go beyond the minimum requ irements and to extend border measures to goods 
in transit and patent infringements.   IP/C/M/59 
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  178. He said that there were good reasons why a Memb er might opt to include goods in transit, one 
being that Members did not want to become transs hipment centres for counte rfeit and pirated goods.  
More importantly, however, in cases where there w as clear intelligence indicating that goods in transit 
were dangerous counterfeit medicin es putting patients and public health at risk, it was in the interest 
of public health that customs authorities should have the authority to act and intercept such dangerous 
medicines.  Therefore, the challenge faced by Me mbers was to distinguish between illegal, dangerous 
pharmaceuticals and legitimate generic pharmaceu ticals.  One solution that Switzerland had 
implemented in its national law was to require eviden ce of patent protection not only in the country of 
transit but also in the country of destinati on before border measures could be applied.  
179. The exchanges on this particular case had shown that Members in this Council had a keen 
interest in discussing challenges th at arise in the context of enforcing TRIPS provisions and issues 
that had been opted and chosen by Members to go beyond TRIPS, and how these challenges could 
best be addressed in order to find adequate so lutions in a manner that would make TRIPS and 
intellectual property rights protection part of the solution. 
180. The representative of Indonesia  said that his delegation had great concerns regarding the 
systemic implications of the seizure of generic dr ugs by the Dutch customs authorities.  In his view, 
the seizure ran counter to the spirit of the Declar ation on TRIPS and Public Health which had clearly 
stipulated that TRIPS should be interpreted a nd implemented in a manner supportive of Members' 
rights to protect public health and, in partic ular, to promote access to medicine to all. 
181. The representative of the European Communities  said that no-one had contested the legality 
of the EC Regulation in question.  While refere nce had been made to the spirit of the TRIPS 
Agreement, it was clear that its Article 51 only  set a minimum obligation beyond which Members 
were free to go, and this was a route which the European Communities had chosen.  He underlined 
that many of these operations saved lives, including in  developing countries.  Secondly, he said that 
there still remained confusion between the temporar y detention of goods and their seizure, where the 
latter meant that they would ultimately be destroyed.   The goods in question had not been seized, nor 
was this the case with most standard generic products as opposed to subs tandard fake products.  
182.  He emphasized that the European Communiti es did not confuse generic medicines with 
substandard products. However, in the presence of a complaint by a right holder the only way to 
establish whether or not the product was indeed subs tandard was to conduct an analysis.  Customs had 
therefore detained the goods for analysis and had done  so for a period within the relevant deadline.  
The 20 working days had become 36 calendar days because of weekends and the Christmas and New 
Years Eve season, but the period had been properl y calculated.  The Dutch authorities had properly 
applied the EC Regulation which was TRIPS compliant.   
183. The representative of Brazil  said that Brazil strongly contested the legality of the EC 
Regulation.  His delegation agreed that Article  51 and the TRIPS Agreement provided a minimum 
standard, but it was not an unlimited standard.  Ar ticle 51 could not be interpreted as clashing with 
other WTO provisions such as GATT Article V.  Th ere were no exceptions in TRIPS and it was the 
duty of the interpreter to read those two provisions in a consistent manner.  Article 51 did not provide 
a blank cheque for a Member to apply measures th at violated other provisions of the WTO.   
184. Furthermore, his delegation disagreed that it was the duty of the Dutch authorities to save 
lives in Brazil.  That was for the Brazil to decide , which had its own authorities, its own means of 
conducting a laboratory analysis, and its own me ans of assessing whether a particular drug was 
substandard or not.  Brazil ha d not delegated this responsibility to anybody else.   
185. Regarding the detention or seizure of the goods , he said that his delegation did still not have 
enough information as the relevant authorities had not b een very helpful in providing that information.  IP/C/M/59 
Page 34  
 
  Brazil had indications that the Dutch authorities had held back goods in transit ex officio  even in 
situations where the patent holder in the Netherla nds had not requested that.  These goods had not yet 
been released.  Despite the lack of  information, there were clear indications that these detentions did 
not occur along the lines the EC delegation had claime d.  He said that Brazil would pursue this issue 
bilaterally and within different WTO forums.  The aim was to receive assurances that this type of 
action would not reoccur, but he said that at this point his delegation was not any more reassured than 
at the beginning of the meeting. 
186. The representative of India
 said that his delegation supported the responses by Brazil to the 
points made by the European Communities.  The confusion between counterfeit medicines and sub-standard medicines had also been raised in other international forums and it was his delegation's view 
that counterfeiting was an IP issue whereas substandard  medicines were a health issue.  He said that 
he doubted that customs authorities had the capacity to check whether a drug was substandard or not, 
and he believed these things were best left to  drug regulatory authorities of the countries of 
destination. 
187. On the issue of temporary detention and sei zure, the European Communities had mentioned 
that it had lasted for a period of ten working days, or 20 working days at the most.  India was still 
waiting for a response from the European Communities or from the Dutch Government in this regard 
and would be grateful for details  on all consignments seized by Dutch or other customs authorities, 
details about how many days they had been held and what were the decisions taken, and on what 
grounds. 
188. The representative of th e European Communities
 said that, with regard to legality, it was 
difficult to find an interpretation of Article 51 of the TRIPS Agreement that prohibited customs 
measures for goods in transit, including for patent s.  Secondly, while Brazil might be capable to 
conduct its own assessment on the su bstandard character of drugs, there were countries which were 
not as rich as Brazil, or not as efficient as Braz ilian authorities and who would be happy that there 
was a double control already in transit.  Furthermor e, he reconfirmed that the Dutch customs had not 
acted ex officio  and that he had received written confir mation by the company itself that it had 
requested the Dutch authorities' intervention.  
189. With regard to India's request, he confirmed th at his delegation was preparing a reply to the 
long list of questions it had recei ved from India, including on the pe riod of detention.  He had, 
however, already checked that the numbers added perfectly.  Therefore, the Dutch authorities had 
acted in full conformity with the TRIPS Agre ement and properly impl emented the relevant 
provisions.  
190. The representative of Venezuela  said that his delegation was concerned because, contrary to 
the universal principle that everybody was innocen t until proven guilty, the European Communities 
seemed to have decided that everybody was guilty until they proved the opposite, and this affected 
public health issues for developing countries. 
191. The Council took note  of the statements made. 
 (iii) Effective operation of the Paragraph 6 System 
 
192. The Chairman  recalled that the delegation of India had indicated that it wished to raise under 
"Other Business" the issue of effective operation of the Paragraph 6 System. 
193. The representative of India  said that his delegation had always viewed the Doha Declaration 
on the TRIPS Agreement and Public Health as a ma jor landmark in the short history of the WTO 
because it recognized the prime issue of public hea lth needs and highlighted  the sensitivity of the  IP/C/M/59 
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  Organization to problems faced by the poor and th e less developed countries.  Along with other 
Members, his delegation had worked on the Doha Declaration in 2001, an d on the Decision of 
30 August 2003 on the Implementation of Paragraph 6 of the Declara tion.  The Paragraph 6 System 
established under the Decision was expected to address problems faced by WTO Members with 
insufficient or no manufacturing capacities in the pha rmaceutical sector.  However, already at the 
General Council meeting in August 2003, his delegation had expressed concerns that "the results 
accruing from this mechanism would be negated by the creation of cumbersome systems that would lead to huge delays in getting medicines across a reasonable cost to those that need them or discourage Members from using the system for the benef it of the people.  In order to make this system 
successful a sincere collective effort was require d on the part of all Members and the entire 
pharmaceutical industry".  He regretted that his de legation had been proven right.  Since 2003, the 
export of the HIV/AIDS medicine TriAvir by the Canadian Pharmaceutical Company Apotex in September 2008 was the first and only use of the system.  Given that it was supposed to be an expeditious solution to the crises in access to medicines by countries with insufficient or no 
manufacturing capacities, time had come to reflect on the obstacles to its use.   
194. Paragraph 8 of the Decision requested the Counc il to review annually the functioning of the 
system with a view to ensuring its effective opera tion and to annually report on its operation to the 
General Council.  During the fifth annual review at the Council's meeting on 28 October 2008, factual 
information regarding the implementation and use of  the system and the acceptances of the Protocol 
Amending the TRIPS Agreement had been circulated.  Discussion of the reasons for the use of the 
system in only one case so far had been limited.  He therefore proposed that a wider discussion on the 
legal, procedural, commercial or other obstacles to th e effective operation of the system be held.  He 
asked the Chair to consult with concerned delega tions in order to ascertain the obstacles and to 
prepare recommendations for the effective implementa tion of the system for consideration as part of 
the annual review at the Council's meeting in October. 
195. The representative of Pakistan
 noted that the Doha Declaration on the TRIPS Agreement and 
Public Health and the 30 August 2003 Decision were hallmarks in the history of the TRIPS 
Agreement.  With a view to keeping the Paragraph 6 System operational and adjusting it, if necessary, 
a regular review and needs assessment were requi red.  He supported the proposal made by the 
delegation of India to engage in a wider discussion on the effective implementation of the system.   
196. The representative of Ecuador  recalled his delegation's statement at the Council's meeting on 
28 October 2008 when it had welcomed the first and so  far only use of the Paragraph 6 System.  The 
system aimed at making Articles 7 and 8 of the TR IPS Agreement operational, by providing a prompt 
solution to WTO Members with insufficient manufact uring capacities in the pharmaceutical sector to 
address public health problems.  Experience in the c ase of the use of the system by Rwanda showed, 
however, that it was subject to complicated pro cedures and bureaucratic obstacles to the export of 
medicines.  He noted that only 21 of the 153 WT O Members had notified their acceptance of the 
Protocol Amending the TRIPS Agreement which rai sed questions regarding the effectiveness of the 
system and justified a thorough review as proposed by the delegation of India.  The review had to go 
beyond providing mere facts regarding the implementation and use of the system, as well as the status 
of acceptances of the Protocol.  He proposed that the Chair initiate an assessme nt of the effectiveness 
of the implementation and use of the system, based  on the mandate agreed upon by the Council at the 
time and with the support of the Secretariat and other intergovernmental organizations, such as 
UNCTAD, as well as non-governmental organizations , including Doctors without Borders.  Legal 
procedures and commercial aspects that were affecting the prompt and effective use of the system needed to be analyzed.  The Chair's work would have to take into account the principles of effectiveness and flexibility which were key to achieving the system's objectives.  A report should 
identify the obstacles and present recommendations for consideration by the Council at its last 
meeting in 2009. IP/C/M/59 
Page 36  
 
  197. The representative of Egypt
 noted that the Doha Declaration on the TRIPS Agreement and 
Public Health, the 30 August 2003 Decision a nd the Protocol Amending the TRIPS Agreement 
reflected the Council's successful consideration of this matter.  His delegation had notified its 
acceptance of the Protocol.  To ensure the effectiv e operation of the system, he supported a discussion 
on its functioning and requested that  his delegation be associated with  any consultations held by the 
Chair. 
198. In agreement with the delegation of India, the representative of Brazil  said that there was a 
pressing need to make the Paragraph 6 System more  effective and operational.  The system was a 
milestone in the history of the TRIPS Agreement.   It provided a much needed and long awaited 
response to the difficulties of countries with in sufficient or no manufacturing capacities in the 
pharmaceutical sector.  His delegation had played an ac tive role in the negotiations that had led to the 
adoption of the Doha Declaration on the TRIPS Ag reement and Public Health.  On 13 November 
2008, it had notified its acceptance of the Protocol Amending the TRIPS Agreement.  His delegation 
fully supported the Doha Declaration according to  which intellectual property protection could not 
and should not supersede more fundamental values such as the protection of life and the access of the 
developing world to life-saving drugs.  Three years ha d been necessary for the first and so far only use 
of the system which was an unreasonable delay to deal with public health emergencies.  This 
demonstrated that there was room for improvement.  He therefore supported the proposal made by the 
delegation of India that the TRIPS Council examin e the system to identif y obstacles that were 
preventing developing countries from making full use of it. 
199. The representative of South Africa  referred to the close involvement of his delegation in the 
negotiations leading to the Doha Declaration on th e TRIPS Agreement and Public Health, as well as 
on the 30 August 2003 Decision.  Those instrument s were critical to the interests of developing 
countries, in particular the poor and most vulnerable ones.  He shared the concerns of other delegations about the limited use of  the Paragraph 6 System over the past five years.  His delegation 
supported the proposal that the system be review ed in order to identify, as well as address any 
obstacles impeding the achievement of the objectives for which it was designed. 
200. The representative of Canada
 reiterated his delegation's strong support for the Doha 
Declaration on the TRIPS Agreement and Public H ealth and recalled that specific action had been 
taken to implement it.  A Canadian company had ma de the first shipment under the system.  The fact 
that it had taken three years for this shipment to reach Rwanda was not due to the structure of the 
domestic process nor was it to be attributed to the Paragraph 6 System.  It could be explained by a 
number of issues, including the fact that the medicine was new and required approval, as well as that 
Rwanda had undertaken a public procurement process in  order to get the best price for the medicine.  
Concerns expressed by a number of delegations a bout the lengthy process should take into account 
that only two months had passed between Rwanda's notification of its intent to import drugs under 
Canada's Access to Medicines Regime (CAMR), as required by WTO rules, and the grant of a 
compulsory licence by the Commissioner for Patent s authorizing Apotex to export the medicine 
needed to Rwanda.  His delegation could go along with  a review of the system and was also prepared 
to provide information to interested countries about the review which the CAMR had undergone. 
201. His delegation recognized the devastating imp act of HIV/AIDS and was engaged in a long 
term comprehensive approach to fight the di sease.  The CAMR was only one part of the 
Government's broader response to improving access to medicines in the developing world.  A number 
of other initiatives aimed at providing medicines and vaccines to countries in need.  The Doha 
Declaration was not the sole solution to the serious  public health problems affecting a large number of 
countries.  
202. The representative of the Philippines  referred to the strong interest which his delegation 
attached to issues relating to the TRIPS Agreement and public health.  The spirit and the fundamental  IP/C/M/59 
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  aspirations of WTO Members had been confirmed by the Doha Declaration on the TRIPS Agreement 
and Public Health, as well as the 30 August 2003 Decision and the Protocol Amending the TRIPS 
Agreement.  He supported the proposal made by the delegation of India to review the effectiveness of 
the system and expressed his delegation's interest in  participating in any consultations held by the 
Chair.  
203. The representative of China  noted that his delegation had ra tified the Protocol Amending the 
TRIPS Agreement in 2007.  Given that the Paragra ph 6 System had been only used once so far, he 
welcomed the proposal made by the delegation of In dia to examine the legal, procedural, commercial 
and other obstacles to the effective operation of th e system.  His delegation supported any discussion, 
consultation or case study on the use of the system by Rwanda. 
204. The representative of Chinese Taipei  said that his delegation atta ched particular importance to 
the issue.  He considered that a more fruitful discussion could be held if instructions from capitals 
could be sought prior to the meeting.  He therefor e suggested that the delegation of India and possibly 
other interested delegations be invited to submit a written communication.  Based on this, a temporary 
item could be inserted on the agenda  of the Council's next meeting. 
205. The Chairman  asked whether there were any objecti ons to the proposal submitted by the 
delegation of Chinese Taipei. 
206. The representative of India  said that his delegation had no intention to submit a proposal in 
writing, but was interested in having a wider disc ussion on legal, procedural, commercial or other 
obstacles, if any, to the use of the system.  The id ea was for the Chair to organize consultations with 
concerned Members to share experiences and ideas.   For instance, input from the delegation of 
Canada into this process on its experience in im plementing the system would be very valuable. 
207. The representative of Chile  supported the proposal made by the delegation of India and 
suggested that any consultations be open to a ll WTO Members and that the item be kept on the 
Council's agenda.  The experience gained from the u se of the system by Rwanda raised some key 
questions, such as whether the system was working effectively or whether WTO Members were doing 
things properly.  The situation in countries n eeding the system merited a careful examination. 
208. The representative of the United States  said that the delegation of India was asking the Chair 
to become active before Members had had an opportunity for a substantive discussion on this proposal.  For procedural reasons, this was not ac ceptable under the agenda item "Other Business".  
The provision on prior notice was intended to give Members an opportunity to consider a proposal and be prepared for a discussion.  Seeking i mmediate action under "Other Business" deprived 
Members of this opportunity, which was essential for informed decision-making.  She therefore 
suggested that the Council limit itself to taking note of the proposal made by the delegation of India 
and the interventions by other delegations.  
209. The Chairman
 proposed that the Council take note of the statements made. 
210. The Council so agreed . IP/C/M/59 
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  N. E
LECTION OF THE CHAIRPERSON  
211. The Chairman  recalled that, at its meeting of 6 Febr uary 2008, the General Council had taken 
note of the consensus on a slate of names of chai rpersons for WTO bodies.  On the basis of the 
understanding reached, he proposed that the Counc il for TRIPS elect H.E. Ambassador Karen Tan 
from Singapore as its Chairperson for the coming year by acclamation. 
212. The Council so agreed .  
__________