RESTRICTED  WORLD TRADE  
ORGANIZATION  IP/C/M/58 
6 February 2009 
 
 (09-0566) 
Council for Trade-Related Aspects 
of Intellectual Property Rights  
 
 
 
MINUTES OF MEETING 
 
Held in the Centre William Rappard on 28 October 2008  
 
Chairman:  Ambassador Dennis Francis (Trinidad & Tobago) 
 
  The present document contains the record of the discussion which took place during the 
TRIPS Council meeting on 28 October 2008. 
 
Subjects discussed
 Page nos.  
 
A. ELECTION OF CHAIRPERSON .......................................................................................................2  
B. NOTIFICATIONS UNDER PROVISIONS OF THE AGREEMENT .........................................................2  
C. REVIEWS OF NATIONAL IMPLEMENTING LEGISLATION ..............................................................2  
D. TRANSITIONAL REVIEW UNDER SECTION 18 OF THE PROTOCOL ON THE ACCESSION 
OF THE PEOPLE 'S REPUBLIC OF CHINA ........................................................................................4  
E. REVIEW OF THE PROVISIONS OF ARTICLE 27.3( B)....................................................................15  
F. RELATIONSHIP BETWEEN THE TRIPS  AGREEMENT AND THE CONVENTION ON 
BIOLOGICAL DIVERSITY ...........................................................................................................15  
G. PROTECTION OF TRADITIONAL KNOWLEDGE AND FOLKLORE .................................................15  
H. REVIEW UNDER PARAGRAPH 8 OF THE DECISION ON THE IMPLEMENTATION OF 
PARAGRAPH 6 OF THE DOHA DECLARATION ON THE TRIPS  AGREEMENT AND PUBLIC 
HEALTH ............................................................................................................................... ......26  
I. NON-VIOLATION AND SITUATION COMPLAINTS .......................................................................28  
J. REVIEW OF IMPLEMENTATION OF THE TRIPS  AGREEMENT UNDER ARTICLE 71.1..................28  
K. REVIEW OF THE APPLICATION OF THE PROVISIONS OF THE SECTION ON 
GEOGRAPHICAL INDICATIONS UNDER ARTICLE 24.2. ..............................................................29  
L. SIXTH ANNUAL REVIEW UNDER PARAGRAPH 2 OF THE DECISION ON THE 
IMPLEMENTATION OF ARTICLE 66.2  OF THE TRIPS  AGREEMENT ............................................29  
M. TECHNICAL COOPERATION AND CAPACITY -BUILDING ............................................................34  
N. INFORMATION ON RELEVANT DEVELOPMENTS ELSEWHERE IN THE WTO ..............................38  
O. OBSERVER STATUS FOR INTERNATIONAL INTERGOVERNMENTAL ORGANIZATIONS ...............38  
P. ANNUAL REPORT TO THE GENERAL COUNCIL ..........................................................................39  
Q. OTHER BUSINESS . .....................................................................................................................40  
 IP/C/M/58 
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  A. E
LECTION OF CHAIRPERSON  
1. The representative of the Secretariat  recalled that, as the Council had been informed at its 
meeting in June, the former Chair of the Council ha d relinquished her post because of her return to her 
capital to take up new responsibilities.  At its mee ting of 31 July, the General Council had taken note 
of the consensus on the appointment of Ambassad or Dennis Francis from Trinidad and Tobago as 
Chairman of the TRIPS Council.  On the basis of the understanding reached, he proposed that the 
Council for TRIPS elect Ambassador Dennis Francis as its Chairman for the remainder of the current 
term by acclamation. 
2. The Council so agreed . 
B. NOTIFICATIONS UNDER PROVISIONS OF THE AGREEMENT  
3. The Chairman  said that, since the Council's meeting in June, Ukraine had made its initial 
notification of its laws and regulations, circulated  in document IP/N/1/UKR/1 and related law series 
documents.  Its responses to the Checklist of Issues on Enforcement had been circulated in document 
IP/N/6/UKR/1.  It had also made a number of notif ications relating to Article s 1.3 and 3.1 and certain 
other provisions, which were being circulated in  documents IP/N/2/UKR/1 and IP/N/5/UKR/1.  In 
addition, the Council had received a number of supplements and updat es to earlier notifications of 
laws and regulations notified unde r Article 63.2 of the Agreement.  Hong Kong, China had notified 
two notices announcing the commencement of some of the remaining provisions of the Copyright 
(Amendment) Ordinances 2007;  Switzerland had no tified a consolidated version of its amended 
patent law;  Japan had notified a consolidated version of its amended Unfair Competition Act;  Viet 
Nam had notified amendments to an Ordinance on Ha ndling of Administrative Violations and a Joint 
Circular Guiding the Application of a Number of Legal Provision to the Settlement of Disputes over 
Intellectual Property Rights at People's Courts;  and Canada had notified an amendment to the 
Patented Medicines (Notice of Compliance) Regulati ons.  These notifications were being circulated in 
the IP/N/1/- series of documents. 
4. 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. 
5. As regards notifications of contact points under Article 69, since the Council's meeting in 
June, Myanmar had notified its contact point.  In ad dition, updates to contact points notified earlier 
had been received from the Czech Republic, Colo mbia, El Salvador and Guatemala.  These 
notifications were being circulated in  addenda to document IP/N/3/Rev.10. 
6. The Council took note  of the information provided.  
C. REVIEWS OF NATIONAL IMPLEMENTING LEGISLATION  
(i) Follow-up to the review of legislation of Viet Nam 
 
7. The Chairman  recalled that, at its meeting in March,  the Council had initiated the review of 
the TRIPS implementing legislation of Viet Nam.  This review had been continued at the Council's 
meeting in June.  Since then, Viet Nam's res ponses to the questions posed by the European 
Communities, Japan, Switzerland, Chinese Taipei a nd the United States had been circulated in  IP/C/M/58 
 Page 3 
 
 
  document IP/C/W/514.  Its responses to the questi ons from Canada and to the follow-up questions 
from the United States had been circulat ed in Addendum 1 to that document. 
8. The representative of Viet Nam  recalled that, at the Council's meeting in June, his delegation 
had presented a summary of changes to Viet Nam' s IP legislation and summarized its responses to 
questions from the United States, the European Co mmunities, Chinese Taipei, Japan and Switzerland.  
In preparation for the present meeting, Viet Na m had submitted its responses to the questions from 
Canada and the follow-up questions from the Un ited States.  Summarizing these responses, he said 
that, with regard to copyright and related rights,  Viet Nam considered that moral rights should be 
protected under IP law and have perpetual term of protection.  Regarding industrial property rights, a 
utility solution patent was similar to a petty patent  or utility model patent under the laws of some 
other countries.  In terms of the protected object, the provisions on the utility solution patent system 
satisfied the requirements for protection of utility model under the Paris Convention as referred to by 
Article 2 of the TRIPS Agreement.  In its res ponses to the questions from Canada, Viet Nam had 
explained several provisions of its IP law and releva nt documents guiding its implementation, such as 
the conditions for applying the right to self-protecti on, the conditions for using folklore and folk art 
works, the limited exceptions to the exclusive right s of patent owners, the requirements of national 
defence, security and other urgent social needs, th e criteria for protection of business secrets, relevant 
remedies for sanctioning violation of intellectual property rights, the role of enterprises in handling of IPR infringing acts, and the application of administ rative and criminal remedies.  Responding to the 
questions from the United States, he said that Vi et Nam had provided relevant information on the 
process of amending certain provisions of the crim inal code on IP in order to codify existing 
provisions, thus complying with the requiremen ts under Article 61 of the TRIPS Agreement. 
9. The representative of the United States
 said that he was following with great interest Viet 
Nam's work on amending its criminal code to in clude remedies for wilful trademark counterfeiting 
and copyright piracy on a commercial scale.  If this amendment were to meet the requirements set out in Article 61, Viet Nam would have completed its TRIPS obligations in this respect, currently being 
fulfilled by the criminal circular as a temporary me asure.  On the issue of protection of undisclosed 
information, the United States continued to have cer tain questions regarding Viet Nam's regime as 
provided for in its regulations.  He understood that  Viet Nam was exploring a possible amendment of 
these regulations and he looked forward to having th e opportunity to review those revisions at such 
time as they were produced. 
10. The representative of Canada
 said that his delegation would review carefully Viet Nam's 
responses received these past months and would a dvise Viet Nam if it had any follow-up to the 
responses provided. 
11. The representative of the European Communities  said that he appreciated the great efforts 
made by Viet Nam in bringing its legislation into  compliance with the TRIPS Agreement and that a 
proper intellectual property system was instrument al in attracting foreign investment and for 
economic development.  The European Communities and Viet Nam had developed a solid 
cooperation on IPRs over the last years and his de legation would continue to provide technical 
assistance in order to help Viet Nam to ensure eff ective protection and enforcement of property rights. 
12. The representatives of Chinese Taipei  and Switzerland  thanked the delegation of Viet Nam 
and said that they had no further questions. 
13. The Chairman  said that Viet Nam's responses to all of the questions posed to it had been 
circulated prior to the meeting.  He suggested that the regular review of the le gislation of Viet Nam be 
deleted from the agenda, it being understood that an y delegation should feel free to revert to any 
matter stemming from this review at any time. IP/C/M/58 
Page 4  
 
  14. The Council took note
 of the statements made and so agreed . 
(ii) Follow-up to reviews already undertaken 
 
15. 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. 
16. 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. 
17. He urged the delegations con cerned to provide the outstanding material as soon as possible, 
so as to allow the Council to complete these reviews. 
18. The Council took note  of the information provided and agreed  to revert to the matter at its 
next meeting. 
(iii) Arrangements for the reviews of national im plementing legislation of Tonga and Ukraine 
 
19. The Chairman  recalled that, at its meeting in June, the Council had agreed that it would take 
up the review of the TRIPS implementing legislation of Tonga and Ukraine, two newly acceded Members, at its first meeting in 2009.  The C ouncil had set the following target dates for the 
submission of questions and answers for this review:  ques tions were to have b een submitted to Tonga 
and Ukraine, with a copy to the Secretariat, by 1 December;  and responses to questions posed within 
that deadline were to be submitted by 12 January 2009.  Ukraine had alrea dy notified its laws and 
regulations, and provided its responses to the Checklis t of Issues on Enforcement.  This material was 
intended to serve as the basis for the upcoming review.  He said that it would be appreciated if any questions to Ukraine could be submitted within the target dates the Council agreed at its meeting in 
June.  As regards Tonga, the Council had not ye t received Tonga's notification of its TRIPS 
implementing laws and regulations. 
20. The representative of Tonga
 said that his delegation would attempt to provide its notification 
by the end of November and requested that th e review of its TRIPS implementing laws and 
regulations be postponed until the Council's second meeting in 2009. 
21. In the light of the request by the delegation of Tonga, the Chairman  proposed that the Council 
postpone the review of Tonga until its second meeti ng in 2009 and set the target dates for the 
submission of questions and responses for that  review at its first meeting in 2009. 
22. The Council so agreed . 
D. TRANSITIONAL REVIEW UNDER SECTION 18 OF THE PROTOCOL ON THE ACCESSION OF THE 
PEOPLE 'S REPUBLIC OF CHINA  
23. The Chairman  recalled that section 18 of China's Protocol on Accession required the TRIPS 
Council to review the implementation by China of  the TRIPS Agreement each year for eight years 
and report the results of such review promptly to  the General Council.  He further recalled that 
section 18 required China to provide relevant info rmation, including information specified in 
Annex 1A, to the TRIPS Council in advance of th e review.  He informed the Council that the 
information submitted by China pursuant to the requirement, dated 21 October 2008, had been  IP/C/M/58 
 Page 5 
 
 
  circulated as document IP/C/W/525.  Questions a nd comments in connection with the transitional 
review had been submitted by Japan, the Unite d States, the European Communities and Canada 
(documents IP/C/W/518, 520, 521 and 524, respectively).  
24. The representative of the United States  said that his delegation believed that the transitional 
review mechanism continued to be a useful mech anism that helped to pr ovide needed additional 
transparency for China's trade regime and allo wed Members to better understand and assess China's 
progress in implementing and complying with its WTO obligations.  Turning to his delegation's 
submission before the Council, he noted that th e United States appreciated the importance China 
attached to the protection of intellectual property rights and the active steps that it had taken to 
improve IPR enforcement and protection.  It w as his understanding that China had developed and 
released a detailed national IPR strategy reflecting a commitment to address IPR-related issues at the 
highest levels of China's Government. 
25. At the same time, the United States remained concerned about several aspects of China's 
regime for the protection and enforcement of intelle ctual property rights.  It was critically important 
that China and other WTO Members maintained regi mes that respected all intellectual property rights 
regardless of national origin.  While he underst ood the importance that China placed on promoting its 
domestic industries through indigen ous innovation polices, his delegation encouraged China to ensure 
that these polices did not undermine the rights of no n-Chinese owners of intelle ctual property rights or 
otherwise ran afoul of WTO rules.  The United St ates also continued to see evidence of unacceptable 
levels of IPR infringement, particularly in the num bers of Chinese goods seized at US borders.  Mid-
year statistics for 2008 showed that China remained  the source of the vast majority of infringing 
goods seized at US borders, accounting for 85 per cent of seizures by value, and it was troubling that 
the seizure of Chinese goods had been increasing, not  decreasing, each year since China had joined 
the WTO in 2001. 
26. Exports of counterfeit and pira ted goods, however, were only part of the problem.  United 
States industries continued to report high rates of in fringement within China.  More work was needed 
to address growing challenges involving internet co unterfeiting and piracy in China, such as offering 
infringing products for sale to businesses and consumer s or deep linking to infringing files.  At the 
same time, the problem of physical counterfeiting an d piracy in China continued and was widespread 
as illustrated by the continuing operation of larg e wholesale and retail markets for counterfeit and 
pirated goods in a number of jurisdictions in Chin a.  The range of industry sectors affected by 
infringement within China was quite broad, in cluding, among many others, pharmaceuticals, 
electronics, batteries, auto parts, industrial e quipment and toys.  The United States was further 
concerned because many of the counterfeit products made  in China continued to pose a direct threat to 
the health and safety of consumers not only in China, but in the United States and elsewhere around the world.  For reasons similar to those indicated  in its questions, the United States also remained 
concerned by Chinese rules that appeared to exem pt so-called Chinese famous brand products from 
quality inspection.  His delegation wished to learn more about the scope of this exemption and about 
the trademark-based criteria that made products eligible for this exemption. 
27. In conclusion, his delegation looked forward to  receiving China's responses to its questions, 
and to continuing to engage bilaterally with China on a wide range of IPR issues.  The United States 
appreciated the cooperative spirit in which the tw o countries had intensified IPR discussions under the 
Joint Commission on Commerce and Trade and other b ilateral mechanisms, and continued to believe 
that deeper multilateral and bilateral dialogue and cooperation would provide an important path to 
progress. 
28. The representative of the European Communities
 said that his delegation took note with 
satisfaction of the progress that had been made  so far in China on IPRs and of positive ongoing 
initiatives such as the action plan for IPR protec tion for 2008, the National Intellectual Property IP/C/M/58 
Page 6  
 
  Strategy, the ongoing revision of patent law, the ongoing revision of trademark law and the 
announced revision of copyright law.  However, de spite these developments and China's efforts to 
address problems in its IP system, his delegation remained concerned at the high level of counterfeiting and piracy in China.  Although the customs seizures of counterfeit products coming 
from China at the EU border had decreased in 2007, China remained the main  source of infringing 
goods with over 60 per cent of all articles seized at the border coming from there. 
29. European companies continued to face serious IP R problems in China, in particular, the lack 
of proper access to the legal system and of effectiv e IPR enforcement.  Criminal prosecution remained 
ineffective, sanctions against IPR infringement we re insufficient to deter infringers, administrative 
enforcement procedures were still subject to discre tion in many areas, and administrative infringing 
activities remained difficult to obtain, expensive and in comparison to domestic cases, more time 
consuming. 
30. His delegation encouraged China to actively pursue its efforts towards an effective IPR 
enforcement system and was committed to continue  working bilaterally with Chinese authorities to 
improve the situation, in particular through the joint technical cooperation programme IPR 2.  The 
European Communities had also established a structured dialogue on intellectual property and had set 
up a joint EC/China IP Working Group in the frame work of this dialogue, in order to exchange 
information and address IPR issues.  The fifth sessi on of this IP Working Group had taken place in 
Beijing on 23 September 2008.  He expressed his hope  that this cooperative approach with China on 
IPR issues would be instrumental in improving the IP R situation in this country and lead to concrete 
and tangible results. 
31. He said that his delegation had submitted 43 questions coveri ng a wide range of issues 
including patents, technology transfer, protection of confidential data, trademarks, copyright, and 
plant variety protection.  With regard to enforcem ent, the questions included issues such as customs 
measures, civil enforcement, criminal prosecution and on-line piracy, and his delegation was looking 
forward to receiving responses from China. 
32. The representative of Canada
 said that his delegation was appreciative of China's continued 
engagement in a dialogue on IP issues at the WTO and in other international fora such as the 
Heiligendamm Process.  Canada also appreciated th e opportunities to share best practices and other 
experiences through the two countries' respective inte llectual property agencies and IP experts.  For 
example, the Commissioner of the Canadian Intell ectual Property Office would travel to China next 
month for an annual meeting with her counterpart and to speak at the 6th Shanghai International 
Intellectual Property Forum. 
33. Canada had recently submitted document IP/C /W/524 in relation to the China TRM, 
containing questions related to Ch ina's action plan on IPR protecti on and recent revisions to China's 
Patent Law.  His delegation would understand if Ch ina required additional time to study the questions 
before providing responses, and would therefore be  happy to accept China's written responses in due 
course. 
34. Canada had also included a few specific inquiri es, including one question relating to China's 
Olympic experience.  Specifically, in view of the fact  that the 2010 Winter Olympics would be held in 
the Canadian province of British Columbia, Canada  would be grateful to learn about China's 
experiences with respect to the registration and use of the Beijing Olympic trademarks. 
35. The representative of Japan  said that his delegation appreciated the recent Chinese efforts to 
strengthen the protection of intellectual property ri ghts.  It was his understanding that the Chinese 
Government had enhanced the civil as well as the criminal measures to protect intellectual property 
rights and Japan welcomed this improvement of IPR legislation in China.  IP/C/M/58 
 Page 7 
 
 
  36. Having said that, his delegation wished to point out three issues:  first, Japan still had serious 
concerns about infringement in China.  The ty pes of infringement were getting more and more 
complicated, the number of infringements using th e Internet was increasing and serious problems 
remained with regard to enforcement of IPR i ssues in local Chinese government.  His delegation 
expected that the Chinese Government would take appr opriate measures with regard to these issues in 
due course. 
37. Second, his delegation wished to raise a new issue regarding compulsory certification in 
China, which was also mentioned in paragraph 10 of the EC document.  Private enterprises were 
requested to provide highly confidential informat ion to get technical regulatory approval in the 
Chinese territory.  It was his understanding that from May 2009, 13 types of information security 
products would be required to pass a certification.  His delegation had serious concerns on this matter 
from the point of view of IT protection.  His delegation expected the Chinese Government to review these measures which were exceptional in the international community. 
38. Third, his delegation welcomed the Chin ese action plan on IPR 2008, which had been 
announced in June 2008.  In this action plan, the Chinese Government had committed to protect IPRs 
at a higher standard by 2020, reducing IPR infringeme nt.  His delegation expected further efforts by 
the Chinese Government based on such action plans. 
39. Lastly, his delegation was looking forward to China's responses and hoped for further 
dialogue and cooperation with the Chinese Governme nt in the TRIPS Council, as well as in bilateral 
cooperation. 
40. The representative of China
 said that his delegation wished to pursue a dialogue in a 
constructive and transparent way with all Memb ers.  China had received over 80 questions from 
several Members and, while he did not agree with  all of these questions, his delegation appreciated 
the continued interest in the Chinese IPR mechanis ms and listened very carefully to the comments 
made by these Members. 
41. With regard to the questions received he sai d that his delegation had had enough time to 
prepare responses to the questions from the Eu ropean Communities and Japan as they had been 
received by e-mail at the same time that they had been transmitted to the WTO Secretariat.  The 
questions from the United States, however, had only been received by China one week before the 
meeting.  Although, after reporting back, this had left his delegation only three days to prepare 
responses, it had done its best to respond to as ma ny of these questions as possible.  Nevertheless, 
there was one question that could not be answered at  this stage and his delegation remained available 
to follow up with the United States through bilatera l channels.  With respect to the questions from 
Canada, he regretted that his de legation had only been informed about them at the present meeting. 
For future transitional reviews, he encouraged Me mbers to follow past practice and transmit their 
questions or communications to China at the same time that they sent them to the Secretariat. 
42. Briefing the Council on China's implementati on of the TRIPS Agreement and relevant 
commitments since the last review, another repr esentative of China said that China had always 
attached great importance to the protection of intell ectual property rights, and fulfilled its international 
commitments in a serious and positive manner.  In  recent years, China had further intensified the 
protection of IPRs.  Since 2004, a nationwide camp aign for IPR protection had been carried out each 
year to end trademark, patent and copyright in fringements, particularly in imports and exports, 
wholesale markets, trade fairs, original-equipmen t manufacturers, printing and reproduction.  Very 
recently, China had unveiled the Outline of National Intellectual Property Rights, a new strategy to 
tackle the many issues surrounding IPRs in a broade r, deeper and more forceful manner which would 
further improve IPR protection in China. IP/C/M/58 
Page 8  
 
  43. Turning to questions from Members, she sai d that, including the Canadian submission 
received on that day, China had received over 90 questions.  Her delegation thanked Members for 
their appreciation of China's achievements in IPR protection, such as Japan's comment in its 
communication that the implementation of China's IP commitments had evolved to a cruising phase. 
This was quite objective.  However, other Member s' communications contained comments that were 
not based on facts and statistics that were not credible.  She hoped Members would adopt a more 
serious, practical and realistic attitude towards the TRM. 
44. With respect to the questions from Canada, she said that most of the information regarding 
China's action plans regarding IPR protection could be found online on the State Intellectual Property 
Office’s (SIPO) website (www.sipo.gov.cn) and on the we bsite of the central government.  The rest of 
the Canadian questions were very similar to ques tions raised by the United States, the European 
Communities and Japan. 
45. She said that some of the questions, including those on internet piracy (EC questions 40-43, 
US questions 21-23), on  customs enforcement in relation to the outbound flow of goods (EC 
question 31, US question 19) and some other questio ns, including those from Japan regarding general 
government policies and research, went beyond the scope of the TRM.  As this was not the 
appropriate forum for these ques tions, her delegation suggested th at they be discussed on other 
appropriate occasions such as in World Intell ectual Property Organization (WIPO), the World 
Customs Organization (WCO) or through bilateral ch annels.  She said that some questions were 
closely related to the ongoing US-China WTO dispute (DS362) in which the United States was the complainant, and the European Communities and Jap an had both joined as third parties.  Such 
questions included Japan's questions 12 and 19(d) , EC questions 18, 20, 23-25, 36 and 37, and US 
questions 13-18, 20, and 24-26.  The parties involve d could discuss the relevant issues in the context 
of this case.  Furthermore, regarding the laws a nd revisions mentioned in Japan's questions 1, 2 and 
18(a), EC questions 5-9 and 17, and US questi on 27, she said that the laws including the Trademark 
Law, the Copyright Law, the Law Against Unfair Competition, the Rules for Implementation of Patent 
Law and the Rules for Implementation of the Re gulations on Customs IPR Protection , were currently 
under revision or review, and no specific schedules were  available at this time.  Members should refer 
to Annex 1A for progress. 
46. For convenience, her delegation had grouped th e responses to questions from Members into 
five major subjects.  The first subject related to copyright, and specifically the royalty distribution 
issue which included responses to Japan's question 3, and EC question 26.  In this regard, the 
Regulation on Royalty Distribution fo r Broadcasting and Television Organizations  was one of the key 
legislative programmes of the State Council this y ear.  The Legislative Affairs Office had submitted a 
draft to the State Council for review.  According to Article 43 of the Copyright Law , the Regulation 
(Draft) provided on radio and TV stations' royalt y distribution for right holders for broadcasting 
published audio recordings without the latter's consent. 
47. The second subject related to trademarks and geographical indications issues, including 
responses to Japan's questions 4-5, and EC questions  21-22.  The current duration of the examination 
period for trademarks was about 28 months.  In r ecent years, China had witnessed an annual increase 
in trademark registration applicati ons and had ranked first in the world for six years until this year in 
terms of application volume.  In 2007, the figur e had risen to 708,000, which constituted a big 
challenge for China.  The competent authorities worked hard and attached great importance to 
achieving an expedited examinati on of trademarks.  A series of measures had been implemented, 
including setting up additional divisions, increasing staff, strengthening operation security for the automatic system, stepping up manage ment and enhancing efficiency at every stage of the trademark 
registration process.  These measures had yielded in itial results.  In 2007, 40 5,000 applications had 
been examined, which constituted a year-on-year in crease of 29.3 per cent.  An examiner's average 
workload per year was much more than in other countries.  The Trademark Review and Adjudication  IP/C/M/58 
 Page 9 
 
 
  Board had ruled on 12,799 cases, a year-on-year in crease of 200 per cent.  In 2008, the Chinese 
Trademark Office (CTMO) had recruited 300 tr ademark examination auxiliary staff and 100 
trademark adjudication auxiliary staff who had begun work on 1 September.  With the joint forces of 
new staff and the comprehensive implementation of the above measures, the registration duration was 
expected to be further shortened in the coming years. 
48. With regard to the examination guidelines of tr ademarks mentioned in Japan's questions 6 and 
7, according to Article 10(2) of the Trademark Law , if a trademark consisted of or contained foreign 
geographical names known to the public, it would be  regarded as identical to foreign geographical 
names and the CTMO would reject the application.   However, this did not apply to trademarks 
composed of foreign geographical names and other words, if the combination acquired a new meaning 
and did not lead to confusion of the public wh en applied to designate d commodities.  "LONDON 
FOG" (for briefcases) was one example in this regard. 
49. According to Article 9 of the Trademark Law , a trademark should have distinctive 
characteristics easy to identify, and may not conflict with legal rights acquired by others in priority. 
The prior rights included the names designa ted to new varieties of plants by the Regulations on the 
Protection of New Varieties of Plants .  Accordingly, trademark applications using the names of plants 
should be rejected.  The parties involved could also assert their legitimate rights and interests through trademark oppositions and dispute procedures.  Regard ing Japan's question 8, if the trademark's word 
formation was different from a foreign geographi cal name known by the public but its look and 
pronunciation were nevertheless likely to cause confus ion with regard to that geographical name and 
the origin of the product, that trademark would be rejected according to Article 10(1) of the 
Trademark Law .  If such a trademark was registered, an application for cancellation could be filed to 
the CTMO. 
50. Japan's question 9 related to a complicated t echnical issue.  For detailed information, 
Members should refer to the Trademark Examination and Adjudication Standard  (2005) and the 
Regulations on the Protection of New Varieties of Plants.  According to Article 11(2) of the 
Trademark Law , the following aspects should be consider ed with regard to marks obtaining 
distinctive characteristics through usage:  first,  public recognition of the mark;  and second, the 
application of the mark to designated commodities and services in terms of duration, the method and 
the industry.  With regard to the Guidelines for the Fair Use Thereof by Another Person raised in 
Japan's question 10, references could be found in Article 26 and Article 27 of the Answers of the High 
People's Court of Beijing on Some Issues Concern ing the Handling of Trademark Dispute Cases  
issued by the High People's Courts of Beijing in March 2006. 
51. With regard to EC question 19, she said that  Chinese authorities had always been working 
hard to protect the exclusive right to use regist ered trademarks and had cracked down on fake goods, 
both during the Olympic Games and on average working days.  At the same time, it should also be recognized that strengthening the protection of exclusive trademark rights and clamping down on 
trademark right violations was a difficult long-te rm task that could not be achieved overnight. 
52. With regard to GIs, she said  that the Chinese Government a ttached great importance to GI 
protection and firmly believed that  GI protection would effectivel y promote economic development, 
especially the development of agriculture and th e rural areas.  The TRIPS Agreement established 
specific rules in this area and Members had set up their respective GI protection regimes under this framework.  China had also established its own GI protection system based on its national conditions 
and was constantly improving its effectiveness.  Competent authorities were actively advancing the 
work in this area within thei r respective competencies.  Her delegation was willing to share 
experiences and actively cooperate with Members in this regard. IP/C/M/58 
Page 10  
 
  53. With regard to the trademark-related issues ra ised in US questions 1-4, she said that the  
2005-2006 List of Leading Export Brands Nurtured  and Developed by the Ministry of Commerce had 
expired and such a list no longer existed.  Also, th e General Administration of Quality Supervision, 
Inspection and Quarantine (AQSIQ) had abolished the Measures for Administration of Exempting 
Products from Quality Su pervision and Examination on 18 September 2008.  Therefore, famous brand 
products were no longer exempted.  With regard  to well-known trademarks, the CTMO and the 
Trademark Review and Adjudication Board identif ied and protected well-known trademarks in the 
procedures of trademark oppositions, administ ration and disputes according to the Trademark Law , 
the Rules for the Implementa tion of Trademark Law , the Provisions for Identification and Protection 
of Well-Known Trademarks .  In the identification procedure of  well-known tradem arks, domestic and 
overseas trademark holders were treated  equally without discrimination. 
54. With regard to well-known trademarks at sub- national levels, provisions  should be developed 
by provincial government according to local conditions.  Provincial industry and commerce authorities were responsible for identifying well-kn own trademarks according to local regulations, 
rules and normative documents.  Provincial local regulations, rules and normative documents should 
be referred to when deciding whether "foreign" trad emarks of foreign companies or users could be 
identified as "well-known trademarks".  Regarding US  question 5, China's Table of Classification of 
Similar Commodities and Services had been formul ated on the basis of WIPO's International 
Classification of Goods and Services for the Purposes of the Registration of Marks and according to 
China's practical experience over the years in classi fying similar commodities and services.  It was 
referred to by the CTMO and the Trademark Review  and Adjudication Board in their reviews and 
examination of trademarks.  However, due to c onstant upgrading and developing of commodities and 
services and fluctuation in market trading, the assessment of similar commodities and services could 
change in certain cases, and it was therefore still necessary to make judgments in terms of similar 
commodities and services when examining such cases. 
55. The third subject related to patents, technology transfer and confidential information 
protection and responded to EC questions 10-11 and 12-14,  and US question 12.  In this regard, 
Chinese laws strictly prohibited the infringement of trade secrets and the information required for that 
purpose in the applications was necessary and within the scope of reasonable disclosure.  With regard 
to the trial data protection, the Drug Registration Regulation  provided for this issue, including 
provisions that literary and data shall not be used  without the owner's cons ent and that on-the-spot 
verification must be carried out for the authentic ity of each document.  These measures ensured that 
all the application documents were authentic, relia ble and had been independently acquired by the 
applicant himself/herself, so that applications c ould not be based on information submitted in earlier 
applications.  She said that data used without th e owner's consent were c onsidered invalid and the 
corresponding application would be rejected. 
56. The State Food and Drug Administration, when deciding whether to give marketing approval 
or not, could only rely on clinical trial data indepe ndently acquired by the applicant.  Published data 
could only serve as a reference.  According to Article 35 of the Implementing Regulation for the Drug 
Administration Law
, the Drug Registration Regulation provided that, within six years from the date a 
drug manufacturer or seller had obtained approval to produce or market a drug containing new 
chemical entities, if any other applicant used the aforementioned data to apply for approval for 
production or marketing of the drug in question with out permission by the original applicant who had 
obtained the approval, no approva l may be given to any other applicant by the drug regulatory 
department.  In this regard, domestic and overseas companies were given equal treatment. 
57. The fourth subject related to IPR enforcement.   By virtue of his exclusive right to use a 
trademark, the right holder could demand a hear ing in trademark administrative enforcement 
procedures according to the Administrative Punishment Law .  With regard to rulings on trademark 
violations, the relevant right holde r could inquire with industry an d commerce administrative agencies  IP/C/M/58 
 Page 11 
 
 
  at all levels and follow the development and result of  the case.  China was s till studying how the right 
holder could take part in the trademark administ rative enforcement procedure and what rights he 
should enjoy in the process. 
58. Under the Copyright Law, copyright infringeme nt was divided into two categories.  One 
category included 11 torts described in Article 46 of the Copyright Law, which could only be resolved 
by civil litigation procedures.  With regard to these to rts the victim could file civil lawsuits directly 
with the People's Courts after collecting relevant ev idence.  The other category consisted of eight torts 
described in Article 47 of the Copyright Law, which could be addressed through civil litigation, administrative punishment and criminal litigation accord ing to different degrees of injury.  In other 
words, the victim could file lawsuits directly with the People's Courts after collecting relevant 
evidence, apply for administrative protection from copy right authorities or trigger criminal procedures 
in case of a crime.  In brief, with regard to any to rt, the copyright holder could take part in launching 
civil, administrative or criminal procedures and attain sufficient information in the proceedings. 
59. In case of violations of copyright and exclus ive trademark rights, be it infringement via 
Internet or traditional means, the Copyright Law and the Trademark Law applied .  Apart from active 
investigations conducted by competent authorities acco rding to their duties, the right holder could also 
complain to local competent authorities or file laws uits with local courts.  China had cracked down on 
IPR violations, and relevant indivi duals and units were held crimina lly responsible according to law. 
Regarding detailed information on enforcement at di fferent levels requested by Japan and others she 
referred Members to Annex 1A s ubmitted prior to the meeting. 
60. The fifth subject related to Other Issues  that had been raised in Japan's questions 13 and 14 
and EC question 29.  In this regard, there were currently no criteria for intellectual property rights 
abuse under the framework of the Antimonopoly Law  and formulation of guidelines for that law was 
still under way.  With regard to the conflict between  trade names and trademarks raised in Japan's 
question 15, the Supreme People's Court had issued  a judicial interpretation in February 2008 
regarding the Regulations on the Trial of the conflict s between Registered Trademark Enterprise 
Name and the Prior Right , which provided fully for that issue. 
61. With regard to licensing regulations raised in Japan's questions 16 and 17, she said that the 
provision in Article 25 that "the licensor must ensure  that the technology provided is complete, correct 
and effective and may fulfil the agreed tec hnological goal" only referred to the technology per se .  In 
other words, under agreed implementation conditions , the technology provided by the licensor should 
meet the agreed technological objective.  However,  if the agreed technological objective was not 
achieved due to reasons on the licensee's part, su ch as substandard enviro nmental and technical 
conditions, improper operation,  etc., the licensor should not be held responsible. 
62. Regarding EC questions 27-28, since China's accession to the 1978 International Union for 
Protection of Varieties (UPOV) in 1999, a legal syst em for protecting new varieties of plants had been 
established.  It had played an active role in prot ecting the legitimate rights and interests of breeders, 
encouraging innovation in breeding technology, promoting reasonable allocation of breeding 
resources and establishing a fair competition order in the seed market that was in line with China's 
national conditions.  The Chinese Government ha d issued and implemented seven batches of 
catalogues for the protection of new plant varieties in agriculture and four batches of catalogues for 
the protection of new plant varieti es in forestry including 152 species and genera of plants, which far 
exceeded the minimum requirements of UPOV 1978.  At present, the Chinese Government was still 
actively expanding the catalogues to protect as many plants as possible.  Since 2004, China had been 
ranking fourth among UPOV Members.  By 30 September 2008, the Ministry of Agriculture had accepted 5,192 applications for plant variety rights.  After examination and tes ting, 1,844 applications 
had been approved. IP/C/M/58 
Page 12  
 
  63. In conclusion, the representative reaffirmed that China continued to attach great importance to 
IPR protection which had already been elevated to a national strategy of China.  She also pointed out 
that IPR protection was not merely a means to fulfil China's accession commitments or to attract 
foreign investment and technology, but also res ponded to China's own intrinsic need to promote 
scientific and technical innovation, and to speed up its economic development.  China spared no effort 
to  establish a strong and effective IPR protection sy stem which was in the interest of both China and 
other Members.  However, as a developing Member, China had only started building its IPR protection system less than 30 years ago and would need continued efforts before its IPR protection 
system could be as sophisticated and mature as th at of some developed country Members which had 
been developed for over 100 years.  In order to  catch up, China needed time, understanding and 
support.  She hoped that Members, especially develo ped country Members, would be able to view the 
IPR situation of China from a historical and deve lopmental perspective, recognize the efforts China 
had made, and continue the suppor t and cooperation in this area. 
64. The representative of the United States
 said that, with regard to China's comment about their 
late receipt of the US submission, his delegati on had submitted the document to the Secretariat on 
9 October and had transmitted it to the Chinese Mission via e-mail on the same day.  The Secretariat 
had then circulated the submission on 14 October which was still two weeks ahead of the meeting. 
65. He thanked the Chinese delegation for its res ponses and said that his delegation had a few 
follow-up questions and comments.  With regard to US question 3, China had indicated that the 2005/2006 list of leading export brands nurtured an d developed by the Ministry of Commerce had 
expired.  His follow-up question, which was also c ontained in the US submission, was whether there 
had been any updates or subsequent lists issued for 2006/2007 and 2007/2008. 
66. With regard to US question 4 on more inform ation about sub-national measures relating to 
famous trademarks, China had simply indicated that sub-national measures were handled by sub-
national governments, but it had not provided any responses to the question.  Among other things, the 
United States was looking for a list of those sub-nati onal measures.  He noted that, as had been seen in 
the area of subsidies where sub-national government s were very active, measures issued by sub-
national governments were particularly important  under China's system and he expressed his hope 
that China would respond to that question. 
67. Turning to US questions 6-11 on geographical i ndications, China's response had simply been 
that China had established a geographical indications  system within its government.  This had been 
known to the United States and had been the premis e of the several detailed questions it had posed 
about various aspects of China's regime.  None of these questions had been answered and his 
delegation requested China to respond to those questions. 
68. With regard to several questions that had b een posed about enforcement, China had referred 
to the ongoing WTO case, and concluded that it w ould not be appropriate to answer any of these 
questions.  He said that these questions dealt with th e role of private investigators in China, with 
legislative proposals that might enhance the power of Chinese judges to enforce judicial orders and 
with specific enforcement initiatives relating to health  and safety threats and other matters.  None of 
these issues was part of the WTO case and his de legation therefore requested China to respond to 
those questions. 
69. Finally, in response to the comment that Chin a was a developing country Member and needed 
more time to implement and adhere to its TRIPS ob ligations, he said that China, in its Protocol of 
Accession, had committed to adhere to the TRIPS Agreement immediately upon accession.  There 
were no transition periods for adherence to those disciplines.  IP/C/M/58 
 Page 13 
 
 
  70. The representative of the European Communities  thanked China for its comprehensive 
statement on its efforts to improve the protection and enforcement of intellectual property rights and 
for its detailed answers to questions. 
71. While trying to follow the answers given by China, it was his impression that some of his 
delegation’s questions had not been answered.  For example, EC questions 32, 33 and 34 on the 
legalization and notarization requirements for power of attorney and evidence from abroad covered a 
very important issue for his delegation, and he would be grateful if China could answer those 
questions.  He encouraged China to intensify its  efforts to combat counterfeiting and piracy and 
improve the enforcement system in China, whic h was a priority for the European Communities. 
72. The representative of Japan  thanked the Chinese delegation for its very informative 
explanation covering all 80 questi ons, considering that it was certainly difficult to give out good 
signals while cruising on the sea.  His delegation want ed to raise two points regarding its questions.  
First, regarding geographical names used as tradem arks mentioned in Japan's question 5, China's 
delegation had indicated that Chinese trademark law prohibited the use of well-known geographical 
names from foreign countries, such as Tokyo a nd Osaka.  However, it was his delegation's 
understanding that there were certain cases in which Chinese private en terprises used Japanese 
geographical names.  This was a question related to the enforcement of Chinese national law and his 
delegation would expect the Chinese Government  to make further efforts to strengthen the 
enforcement of their proper Chin ese trademark law in this regard. 
73. Second, in its explanation concerning the issue of protection of confidential information, the 
Chinese delegation had mentioned a medical law and ot her related laws.  Japan's specific concern was 
whether China was going to extend these compulsory  measures to oblige private companies to 
disclose or provide highly confidential information, as a lot of information security products would be 
included in such an extension.  His delegation re iterated its expectation that the Chinese Government 
would review this exceptional system in due course. 
74. The representative of China  said that, with regard to the US comments, her delegation had 
explained that the 2005/2006 list by the Ministry of Commerce had expired and there was no longer 
such a list.  This meant that there was no such lis t for 2007/2008 or 2008/2009 and that this was the 
end of such a list. 
75. With regard to famous trademar ks at sub-national level, she i nvited the United States to check 
the website of each province as China had very tr ansparent websites in this respect, which would 
answer some of its concerns and questions.  While  she was not in a position to provide a full list of 
these measures at this point, she said that the meas ures at the sub-national level should comply with 
the basic principles at the national level. 
76. Regarding EC questions 32-34, these were questions already received last year which implied  
a certain presumption by the European Communitie s.  While welcoming the suggestions, China did 
not agree with the presumptions raised by the Eu ropean Communities but was prepared to discuss any 
specific cases through other channels. 
77. As regards the comments from Japan, her delega tion would report these back to its capital if 
Japan could provide more detailed information. 
78. Another representative of China said that regard ing the US comment on the receipt of their 
submission, e-mails concerning this issue should be  addressed to the desk officer responsible for 
TRIPS issues.  This would give the delega tion more time to respond to such queries. IP/C/M/58 
Page 14  
 
  79. Furthermore, in its intervention, the United States had misquoted the statement made by 
China by saying that "China need s more time to implement the TRIPS Agreement".  In fact, his 
delegation had said that "we need to catch up yet we need time, understanding and support".  With 
regard to the implementation of the TRIPS Agr eement, China had honoured its commitments from 
day one of its accession to the WTO.  China had re vised thousands of laws and regulations.  It had 
intensified its efforts to protect intellectual propert y rights.  The comment regarding the need for more 
time related to the fact that China needed more ti me to correct the imperfection of the enforcement 
measures.  It needed more time because China was a developing c ountry and because, as China had 
always believed, IP protection was an i ssue very much related to development. 
80. Before explaining why IP protection was developm ent-related, he wanted to share with the 
Council one story.  In recent days, a famous Chines e film star named LU Yi, which is pronounced like 
"Louis", had had a daughter and his fans had begu n to discuss how to name this pretty girl on a 
website.  Some suggested LU Tiantian or other pret ty Chinese names for girls.  One suggestion which 
attracted his attention was pronounced very much lik e the Chinese translation of "Louis Vuitton".  He 
said that he had immediately written on the website :  "Mr. LU, please refrain from considering this 
suggestion to name your girl 'Louis Vuitton' b ecause it could entail a misunderstanding by EU 
officials and cause potential trouble for you in Europe.  If you travel next time to Paris airport of Charles de Gaulle, you might face two options:  either to change the name of your girl immediately or 
to have her confiscated by French Customs." 
81. The purpose of sharing the above story was to  tell Members how sensitive personnel like him, 
dealing with IP-related affairs in China, were to any issue that could give rise to potential problems. 
However, he would be ready to admit that, although a lot had been done on education, some people in 
China, like some living in the countryside, might not be aware of such problems.  The reason was 
simple:  IP was not a concept in a vacuum.  It was a concept related to development.  It was a concept related to particular development stages.  It was a concept related to per capita GDP. 
82. Just on the previous day, the Chinese National Bu reau of Statistics had proudly declared that 
China's per capita GDP had now reached US$2,360.  That was a great achievement and he felt very 
much encouraged.  However, US$2,360 was less th an 6 per cent of the per capita GDP of the United 
States, less than 7 per cent of Japan, less than 3 per cent of Luxembourg, which enjoyed the highest 
level of per capita GDP among the EC Members, and less than 70 per cent of Bulgaria, which had the 
lowest per capita GDP in the Eu ropean Communities.  He therefor e urged the delegations who had 
taken the floor to compare the situation of IP pr otection in their countries when their per capita GDP 
had been US$2,360, with that in China now.  He ur ged them to compare what they had been doing at 
that time on IP protection with what China w as doing now, and more importantly, what China had 
done.  Then, he said, they would have a better unders tanding of the situation China faced with regard 
to IP protection. 
83. Having said that IP protection was development-re lated, he pointed out that piracy was not a 
problem existing only in developing countries including China.  Piracy was a sin in human nature and 
common to all countries, both developed and developi ng.  He referred Members to the International 
Herald Tribune report of 3 June 2008, in which Sir Hugh Laddie, a leading lawyer and former High 
Court judge of the United Kingdom, had said that Chin a had become a "scapegoat" for the intellectual 
property problems in western countries.  What he had meant by using the word "scapegoat" was that 
China was not "the largest source of pirated goods",  as declared by some Members, but some other 
countries were, including some Members who had just  made their comments.  This involved some 
industries just mentioned by those Members, like co mputer software and films.  For that, he would 
also refer Members to the survey by the Motion Pi cture Association of America (MPAA) just a few 
years ago, which demonstrated that their films were  most seriously pirated not in countries of Asia, 
but in another country.  IP/C/M/58 
 Page 15 
 
 
  84. He said that he did not like the word "scape goat" because his delegation knew better than 
anyone that China did have certain problems.  He knew that China needed to do more to improve the 
situation, although it had already done a lot.  So if Members asked whether China admitted that there 
were problems, yes it did.  If Members asked wh ether China had done something to resolve those 
problems, yes it had.  If Members asked whether Chin a needed to do more to improve the situation, 
yes it did.  However, if Members asked whether Ch ina could build Rome in one day, he would have 
to say "sorry we can't". 
85. The Chairman  thanked China for all the information it had provided, as well as other 
Members for their contributions.  Turning to the Council's reporting obligation to the 
General Council, he suggested that the Council follow the same procedure as in the past years, namely 
that the Chairman, acting on his own responsibility, would again prepare a factual report.  The content 
of the cover page to the report would be similar to that of the report submitted by the Council in 2007 
and the part of the minutes reflecting the discussions  held under this agenda item would be attached. 
86. The Council took note  of the statements made and agreed  to proceed as suggested by the 
Chair. 
E. REVIEW OF THE PROVISIONS OF ARTICLE 27.3( B) 
F. RELATIONSHIP BETWEEN THE TRIPS  AGREEMENT AND THE CONVENTION ON BIOLOGICAL 
DIVERSITY  
G. PROTECTION OF TRADITIONAL KNOWLEDGE AND FOLKLORE  
87. 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.  He informed the Counc il that, since its meeting in June 2008, Sri Lanka 
had been added to the list of co-sponsors of the disclosure proposal circulated as document 
IP/C/W/474 (issued with the joint symbols WT/GC/W/564/Rev.2 and TN/C/W/41/Rev.2).  
Addendum 9 to that document had been issued to this effect. 
88. The representative of Côte d'Ivoire, spea king on behalf of the "Disclosure Group"1, expressed 
his disappointment at the lack of progress in the negotiations on the issue of the relationship between the TRIPS Agreement and the CBD, even though it continued to rank high among the implementation-related issues and concerns identifie d and set out in the Doha Development Agenda.  
The Disclosure Group was also disappointed at the lack of commitment and the rigid positions that 
certain WTO Members continued to maintain, insi sting that there was not enough discussion on the 
issue to draft a text that could serve as a basis for negotiations.  He said that, over these past nine 
years, Members had had technical discussions on this subject in a spirit of constructive commitment both in the TRIPS Council, in meetings organized by the Director-General, and in bilateral meetings.  
During that period, Members had come up with seve ral submissions, all of which aimed to clarify 
these issues in order to help establish an effec tive and suitable framework in which WTO Members 
could meet their obligations under both the TRIPS Ag reement and the CBD.  The key proposal was to 
amend the TRIPS Agreement so that Members would require patent applicants to disclose the source 
and country of origin of biological resources a nd associated traditional knowledge used in the 
inventions in question.  The applicant would also ha ve to provide proof of prior consent and of fair 
and equitable benefit sharing unde r relevant national regimes.  He said that the members of the 
Disclosure Group tended to fall victim to freque nt biopiracy, involving the misappropriation of 
                                                     
 
1 Co-sponsors of document IP/C/W/474. IP/C/M/58 
Page 16  
 
  traditional knowledge and ge netic material in their countries through the patent system, and that it was 
difficult and extremely costly for the poor populat ions in these countries to defend and protect their 
rights.  He said that the results of the Doha Development Round must guarantee these objectives if the 
development dimension was to be truly reflected .  He reiterated that arguments for text-based 
negotiations, as pointed out in document IP/C/W/ 474, which had the support of more than 80 WTO 
Members, had been sufficiently substantiated.  Finally, he said that the Disclosure Group remained 
committed to pursuing the negotiations on the TRIPS Agreement and related issues in a constructive 
manner. 
89. The representative of Mauritius, sp eaking on behalf of the ACP Group
, subscribed to the 
statement made by Côte d'Ivoire on behalf of th e Disclosure Group.  She said that, in the General 
Council, the ACP Group had called for the speedy ad vancement of the TRIPS/CBD issue, building on 
the momentum of July.  In parallel with modalities on other negotiating areas, in particular agriculture 
and NAMA, the modalities on the TRIPS/CBD issue s hould form part of the overall package of the 
Round within the Single Undertaking.  She indicated that the stalemate at th e recent session of the 
WIPO Intergovernmental Committee on Intellectua l Property and Genetic Resources, Traditional 
Knowledge and Folklore (IGC) ha d added urgency to the TRIPS Council's work in this area. 
90. The representative of India  associated his delegation with the statement made by Côte d'Ivoire 
and fully shared the sense of disappointment at the lack of progress on this issue despite overwhelming support and technical work of the past nine years.  He said that the inadequacy in the 
TRIPS Agreement to combat biopiracy and misa ppropriation of genetic resources and traditional 
knowledge was one of the factors leading to an imba lance in the TRIPS Agreement.  Referring to its 
Article 16.5, he said that the CBD, which pred ated the TRIPS Agreement, contained several 
intellectual property rights-related provisions and oblig ed countries to cooperate to ensure that patents 
and other intellectual property rights did not r un counter to the objectives of the CBD.  This 
contradiction, which obstructed the proper implem entation of the CBD, needed to be addressed with 
priority and urgency.  He said that, after a great deal of technical work, the disclosure proposal had 
been submitted in document IP/C/W/474 in 2006.  The objectives of the proposal were shared by all 
Members and support for the proposal had been increasing. 
91. He said that recent months had witnessed a signi ficant change in dynamics as reflected in the 
Director-General's report (document WT/GC/W/ 591 and TN/C/W/50).  Subsequently, document 
TN/C/W/52 had been submitted on 19 July 2008, which contained key parameters the proponents 
would like to see reflected in a Ministerial decision on the three TRIPS issues, that is TRIPS/CBD, GI 
register and GI extension.  The document was a dis tillate of constructive engagement, flexibilities and 
accommodation of interests of about 110 Member s which included devel oped and developing 
countries, and several LDCs and represented close to three fourths of the WTO membership.  The 
submission, that said that the three TRIPS issues must be dealt with in tandem based on the key 
parameters mentioned therein, provided for a s ound basis for the way ahead on these issues.  His 
delegation strongly supported such an approach on  procedure and also supported the substantive 
elements of the issues of GI extension and GI re gister as mentioned in document TN/C/W/52.  He 
said that although numerical support could not be the sole determinant in a consensus-driven 
organization like the WTO, the geographical spread and the socio-economic profile of the co-sponsors 
were a barometer of the importance and urgency atta ched to the issues.  The consultative process on 
the issues of the TRIPS/CBD and GI extension must be intensified as decided by Ministers in Hong 
Kong in December 2005.  He recalled that paragra ph 39 of the Hong Kong Ministerial Declaration 
had called for intensification of c onsultations by the Director-General  "by appointing Chairpersons of 
concerned WTO bodies as his Friends and/or by hold ing dedicated consultations".   He said that 
Members' experience in July with the Director-Gener al and with Minister Støre had been instructive 
that a common Chair for the three TRIPS issues would be useful.  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 issue of  TRIPS/CBD was a critical implementation issue for  IP/C/M/58 
 Page 17 
 
 
  developing countries.  For his delegation, an outc ome on this issue was an essential element of any 
development package that would emerge from the Round. 
92. The representative of Brazil  said that his delegation's positi on on the three agenda items was 
well-known.  It believed that the best way to ach ieve the objective of mutual supportiveness between 
the TRIPS Agreement and the CBD was to introdu ce a disclosure requirement into the TRIPS 
Agreement.  A multilateral, mandatory disclosure re quirement would be the most efficient way to 
address the international problem of misappropriatio n of genetic resources a nd traditional knowledge 
as it would allow mega-biodiverse developing countries to track down the supplying country by requiring patent applicants to disclose the supplyi ng country as well as evidence of compliance with 
prior informed consent and benefit sharing.  He  said that over 80 WTO Members were in favour of 
the amendment to the TRIPS Agreement to in troduce a mandatory disclosure requirement, as 
proposed in document IP/C/W/474.  Norway had put forward a positive and constructive contribution 
to the debate in the Council contained in documen t IP/C/W/473.  In the context of the Doha Round, 
the disclosure proposal was gaining momentum.  On e hundred and ten Members, over two thirds of 
the WTO membership, had defended a parallel, simu ltaneous and joint treatment of the three TRIPS 
issues in the horizontal modalities process as i ndicated in the joint submission (document 
TN/C/W/52).  He said that it  reflected a firm willingness of these Members to move towards negotiations on these three issues as part of the Singl e Undertaking of the Doha Round.  He said that 
the TRIPS/CBD issue was a development-related issue and that an amendment to the TRIPS 
Agreement to introduce the disclosure requirement  would be a major development outcome of the 
Doha Round and of great significance for developing countries. 
93. The representative of Ecuador
 supported the statement made by Côte d'Ivoire on behalf of the 
Disclosure Group.  He said that, as a mega-diverse and multicultural country with a high concentration of biological resources and indigeno us peoples as well as Afro-Ecuadorian and local 
communities that had developed and continued to use these resources and associated traditional 
knowledge, Ecuador had an interest in establishing ad equate, expeditious and effective protection for 
biodiversity and traditional knowledge.  He info rmed the Council that, on 28 September 2008, 
Ecuador had made a significant step forward in  approving a new Constitution which used the 
elements of the various relevant  international agreements as a basis.  The Constitution reflected 
important achievements in the field of the protec tion of traditional knowledge and biodiversity.  The 
Constitution established and guaranteed the State r ecognition of the collective right of indigenous 
peoples and local communities to maintain, protect and develop collective knowledge, their ancestral 
sciences, technology and knowledge;  the genetic resources of biological diversity and agro-diversity;  
and their medicines and traditional medicinal practices;   and to recover, promote and protect rituals 
and sacred sites as well as the plants, animals, minerals  and ecosystems within their territories.  It also 
established and guaranteed the recognition of fauna and flora resources and properties. 
94. He expressed his concern over the lack of  positive signs regarding the initiation of 
negotiations to establish clear and specific negotiating modalities for the amendment of the 
TRIPS Agreement according to the principles set forth in document IP/C/W/474, which had been 
supported by a critical mass of around 80 WTO Member s.  Such an amendment should incorporate, in 
a stand-alone provision, the principles already recogn ized in Article 8(j) of the CBD, namely prior 
informed consent, equitable benefit sharing, and th e disclosure of origin of biological resources and 
associated traditional knowledge used in an invention.   He said that negotiations to amend the TRIPS 
Agreement along the above lines were an integral part of the Doha Round' s development dimension 
and of the Single Undertaking, and that a parallel approach should guide these negotiations. 
95. The representative of Sri Lanka
 said that his delegation co-s ponsored the Disclosure Group's 
proposal in view of the critical importance of protection of genetic resources and traditional knowledge, and of preventing misappropriation.  He  said that a major deficiency in the TRIPS 
Agreement was that it did not contain provisions to safeguard the genetic resources and traditional IP/C/M/58 
Page 18  
 
  knowledge accumulated and fostered by traditiona l societies and handed down from generation to 
generation over thousands of years.  As a devel oping country, Sri Lanka considered that this 
deficiency had created a huge imbalance, whic h tended to undermine progress towards sustainable 
development.  In contrast to the market-oriente d ownership of patent rights, traditional knowledge 
remained largely sacred community wisdom.  Ther efore it was the common responsibility of the 
international community to recognize the existence of  such knowledge and natura l wealth and to take 
appropriate measures to protect them.  He said that  the Doha mandate had calle d for concrete action to 
review the implementation of th e TRIPS Agreement and to examin e the relationship between the 
TRIPS Agreement and the CBD and ot her relevant new development issu es raised by Members.  He 
said that it was essential for Members to recognize the value of traditional knowledge and its 
inextricable link to genetic resources and to incorp orate that into a legal text so that the TRIPS 
Agreement would become a complete and sound in strument to ensure intergenerational and 
interterritorial equity and with this the Doha R ound would be a real development round.  He further 
said that his delegation supported the proposal c ontained in document TN/C/W/52 that the three 
TRIPS-related issues be taken together as part of the horizontal process to finalize modalities. 
96. The representative of Indonesia
 said that his delegation attached great importance to the 
TRIPS/CBD issue, and believed that mutual supportiveness between the two agreements was 
necessary.  He shared the disappointment expressed  by Côte d'Ivoire on behalf of the Disclosure 
Group.  He said that the problem of misappropr iation and biopiracy facing developing countries 
hindered their quest to fully reap the benefits of  their own genetic resources and traditional knowledge 
in order to foster development.  Therefore, the longer the TRIPS/CBD issue was unresolved, the 
greater their losses would be in terms of resources  and development.  He reiterated that a swift 
response to the TRIPS/CBD issue was needed, and that an amendment to the TRIPS Agreement to 
include the disclosure requirement could be one important step to address the issue of 
misappropriation and biopiracy.  He said that a fa ir and balanced solution to the TRIPS/CBD issue 
should be one of the benchmarks to decide whet her the development dimension of the Doha Round 
has been fulfilled. 
97. The representative of Lesotho, sp eaking on behalf of the LDC Group , said that the mandatory 
disclosure of source and origin of biological res ources and proof of prior informed consent, which 
would address the problems of misappropriation and e rroneously granted patents, was achievable, and 
therefore should be vigorously pursued.  The LDC Group welcomed the consultations that had been 
conducted in this area and remained ready to engage constructively w ith all other Members to achieve 
success.  He also supported the st atements made by Côte d'Ivoire  and Mauritius on behalf of the 
Disclosure Group and the ACP Group, respectively. 
98. The representative of Jamaica  added his support to the statements made by the ACP Group, 
the African Group and other delegations.  He e xpressed his delegation's firm commitment to the 
successful completion of the Doha Round, whic h should include an acceptable and negotiated 
resolution of the TRIPS issues as a key pillar of th e Single Undertaking.  He urged the Council and 
the WTO Secretariat to work towards maintaini ng the momentum, which had been forged around the 
three TRIPS issues in July, for the commencemen t of text-based negotiations based on document 
TN/C/W/52. 
99. The representative of Bolivia  informed the Council that, on 21 October 2008, the Bolivian 
Parliament had approved a draft of the new constitution, which would be  ratified at the beginning of 
2009.  She said that, according to Article 255 II/ 7 of the draft constitution, "negotiations, 
subscriptions and ratifications of international treaties should be governed by the principles of 
harmony with nature, defence of biodiversity and the banning of private appropriation of plants, 
animals, micro-organisms and any living matter for exclusive use and exploitation".  She said that 
Article 27.3(b) of the TRIPS Agre ement should be revised according to paragraphs 19 and 12 of the 
Doha Ministerial Declaration, the objectives and pr inciples set out in Articles 7 and 8 of the TRIPS  IP/C/M/58 
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  Agreement, as well as several proposals in which th e regional groups and Bolivia had requested that 
Article 27.3(b) be amended or clarified to prohib it the patentability of all living forms, including 
patents on plants, animals, micro-or ganisms and all other liv ing organisms and their parts, as well as 
to prohibit patenting of all natural processes, including essentially  biological and microbiological 
processes for the production of plants, animals and other living organisms. 
100. She said that firstly, the patenting of living form s was contrary to a large number of countries' 
morality and culture, and it was absolutely unaccept able for these countries to grant private rights 
over basic elements of life itself, such as genetic re sources, plants, etc.  The patenting of life forms 
signified the privatization of life and associated traditional knowledge, while life was considered as 
collective by the large majority of cultures in the world.  Secondly, current international regimes, 
including the TRIPS Agreement, granted monopoly rights to private parties, but did not recognize the 
collective rights of indigenous peoples to their trad itional knowledge and gene tic resources.  Thirdly, 
the TRIPS Agreement did not protect genetic r esources and traditional kn owledge of indigenous 
peoples, and did not recognize or protect their contribution in the upstream part of the innovation value chain.  Fourthly, the TR IPS Agreement was inconsistent with the latest international 
developments in FAO, CBD and UNESCO, and in pa rticular with the Declaration on the Rights of 
Indigenous Peoples adopted by the UN Gene ral Assembly through resolution 61/295 of 
September 2007.  Fifthly, life forms and processes that  existed in nature could not be subject to 
patents because they were not inventions, and there was no scientific or technical rationale for the distinction made under Article 27.3(b) between lif e forms and processes that were patentable and 
those that were not.  Sixthly, the patentability of  plants allowed by Article 27.3(b) had rendered 
possible misappropriation and concentration of gene tic resources belonging to developing countries in 
the hands of transnational companies of developed countries.  In conclusion, she urged the Council to 
amend Article 27.3(b) so as to prohibit the pa tentability of life forms and associated knowledge. 
101. The representative of Peru
 said that, since 2003, his delegation had submitted 11 working 
papers jointly with other delegati ons and four papers by itself, in cluding a concrete case study of 
biopiracy and legal and practical arguments on the n eed to include the disclosure requirements in the 
patent system.  Although Members had not achieve d any concrete outcome on this utmost important 
issue, his delegation had obtained the support of the majority of the membership.  He said that only 
when Members, local communities and indigenous  peoples' rights over their genetic resources and 
knowledge were recognized, would they have more  opportunities to develop and transform potential 
wealth into real wealth.  He reiterated that this  issue was important and that a proper legal solution 
was needed.  Only by taking action against biopiracy, would Members establish a balanced patent 
system and intellectual property systems in general.   He said that intellectual property systems were 
based on the promotion of innovation, and Members should resolve to improve the systems.  In 
addition, as this was his last TRIPS Council me eting as a Peruvian delegate, he expressed his 
appreciation to both the Secretariat and other TRIPS delegates for the excellent relations over the past 
five years. 
102. The representative of Colombia  said that his delegation shared the disappointment expressed 
by the Disclosure Group.  He said that the rela tionship between the TRIPS Agreement and the CBD 
was not a new issue in the WTO, and discussions on this  subject dated back to 1997.  He recalled that, 
during the preparations for the Seattle Ministeria l Conference in 1999, there had been proposals to 
incorporate in the TRIPS Agreement provisions on th e obligation to disclose biological materials and 
their country of origin, which would allow countri es to raise objections, examine applications and 
ensure timely submission of their complaints .  He also recalled the acknowledgment by the 
Conference of the Parties and the CBD Secretariat of the need to protect the knowledge, innovations and practices of indigenous and local communitie s that used genetic resources by implementing 
intellectual property right systems.  He said that  the TRIPS/CBD issue had become one of the key 
issues among the outstanding implementation-related issues that the Doha Ministerial Conference had IP/C/M/58 
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  instructed should be addressed as a matter of prio rity and of which the Trade Negotiations Committee 
(TNC) should be informed so that appropriate action could be taken. 
103. He said that, in the seven years during whic h Members had discussed this issue under the 
Doha Work Programme, developing countries had s ponsored the disclosure proposal and now the co-
sponsors made up more than half of the member ship.  They had set out the reasons why they 
considered it necessary to introduce this requireme nt to ensure adequate protection of indigenous 
communities' rights, which were of the utmost  importance because of the wealth that the 
mega-diverse countries possessed.  During this time,  developing countries had come up against a lack 
of flexibility and understanding on the part of a sm all group of mostly developed country Members, 
which had been most reluctant to negotiate on the basis of the disclosure proposal, because it would 
involve amending the TRIPS Agreement.  He recalled that when the ministerial-level discussions had 
taken place in July 2008, Members had been hopeful of reaching an outcome with the Director-General acting as facilita tor of the discussions.  He said that, although the outcome had not 
been achieved, it was important to note that th ere had been renewed recognition of an important 
benchmark for pursuing constructive discussions on the matter and finding a solution.  That 
benchmark, to which the Director-General's June  report also referred, was that there had been 
considerable common ground in terms of the underlying objectives of the proposal.  In other words, the work being done by the membership followed a common course.  He said that the task of the 
Chairman would be to help Members agree on the way in which to achieve those objectives.  He 
reminded the Council that time and patience were running out, and hope was dwindling. 
104. The representative of Pakistan
 supported the statements made by  Côte d'Ivoire on behalf of 
the Disclosure Group and the other proponents of the disclosure proposal, and also supported the 
proposal that the three TRIPS issues should be taken together as part of the horizontal process to finalize the modalities. 
105. The representative of Switzerland
 recalled that, as indicated in document TN/C/W/52, 110 
WTO Members had proposed specific modalities language for the three TRIPS issues.  He reaffirmed 
the importance his delegation attached to the three TRIPS issues and their parallel treatment, in view 
of a modalities decision and the need for text-based negotiations on the three issues on the basis of the 
parameters established in document TN/C/W/52.  In  order to succeed in the challenge of forging a 
broad consensus for a modalities decision, he said that  Members should strive for a balanced package, 
of which the three TRIPS issues were part.  He sai d that the three TRIPS issues had been put on the 
agenda by more than two thirds of the WT O membership, and therefore WTO Members should 
undertake urgent work on these issues.  Although he noted that this work was not for the regular 
session of the TRIPS Council, he reiterated that the three TRIPS issues concerned the subject-matter of the TRIPS Agreement, for which the TRIPS Council was responsible. 
106. The representative of China
 welcomed the discussion on the item of the relationship between 
the TRIPS Agreement and the CBD in the Council.   He said that this issue was a critical 
implementation-related issue for de veloping countries, and therefore it should be an integral part of 
the Doha Development Round.  He said that most of the Members shared th e objectives of preventing 
biopiracy and erroneously granted patents, and th e divergence was on how to realize these objectives.  
Some Members believed that the objectives coul d be achieved through national access and benefit-
sharing systems and database systems while other Members thought that these systems were not efficient enough.  Most Members, including China, firmly believed that the disclosure requirement in 
patent applications would substan tially contribute to fully implementing the three main principles of 
the CBD.  Accordingly, the effective approach wa s to introduce the principles of the CBD into the 
TRIPS Agreement, which would provide an intern ational legal framework and ensure the mutual 
supportiveness between the TRIPS Agreement and the CBD.  He recalled that the Director-General's 
report of 9 June 2008 had clearly indicated that  there was important common ground among Members 
on the underlying objectives, notably the importan ce of the TRIPS Agreement and the CBD being  IP/C/M/58 
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  implemented in a mutually supportive way, avoida nce of erroneously gran ted patents and securing 
compliance with national access and benefit-sharing regimes.  He said that there had been wide acceptance of the need for patent offices to have accessibility to the information in order to make 
proper decisions and to avoid undermining the role of the patent system in providing incentives for innovation.  He said that over two thirds of the WTO membership had co-sponsored the draft 
modality text as indicated in document TN/C/W/52, which requested the inclusion of the three TRIPS 
issues as part of the horizontal process.  This c onvergence proved that the three TRIPS issues were 
mature politically and technically so that they merited substantive text-based negotiations in the 
horizontal process together with other issues, such as  agriculture and NAMA.  He requested that text-
based negotiations on these issues be undertaken in Special Sessions of the TRIPS Council as an 
integral part of the Single Undertaking of the Doha  Developed Agenda with the view of amending the 
TRIPS Agreement to implement the above -mentioned objectives as soon as possible. 
107. The representative of Thailand
 said that Members had spent more than nine years negotiating 
the disclosure requirement with the hope that the outcome of the Doha Development Round would 
have long-lasting systemic benefits for the gl obal trading system and tangible commercial and 
developmental benefits for all WTO Members.  Hi s delegation was disappointed by the delay of the 
negotiations and failure of the July meeting.  He said that during the last nine years Members had had 
opportunities to share their problems and experien ces in the area of misappropriation of genetic 
resources and traditional knowledge, in parallel with th e issues of GI register and GI extension.  
Although some difference still remained between so me Members, his delegation had the impression 
that many difficult elements had been resolved and the remaining differences were minimal.  He said 
that, at the end of July 2008, more than 110 Members, from the North and South, big and small, 
advanced and developing , had shared the same conclusion that it was time to start text-based 
negotiations on the three TRIPS issues.  The joint submission pressed for subs tantive negotiations on 
the three issues and highlighted the expectation of th e vast majority of the WTO membership to make 
these negotiations an integral part of the Single U ndertaking.  It provided a sound basis for further 
work on these issues.  He said that it would be a sh ame if Members would not be able to preserve the 
advance made and move forward on these negotiations. 
108. The representative of the Philippines  said that his country had f aced the problem of unfair and 
inequitable exploitation of  biological and genetic resources or tr aditional knowledge.   Therefore, he 
fully supported the disclosure proposal as a soli d and reasonable basis for genuine collective 
engagement which provided a multilateral and ef fective solution to the problem of biopiracy, 
especially with respect to  the legal effects of non-compliance.  He said that this issue had a vital 
linkage to the development dimens ion of the Doha Round.  The disc ussion in the Council had touched 
on the imbalance in the TRIPS Agreement and the unfair exploitation and misappropriation of genetic 
resources and traditional knowledge.  Its far-reaching implications for developing countries were 
demonstrated by the support of the many devel oping Members, including the African Group, the LDC 
Group, and the ACP Group.  While fully supporting the disclosure proposal as a basis for finding an 
agreement acceptable to all Members, he reitera ted his delegation's concern over the parallelism 
between the TRIPS/CBD issue and the other two TRIPS issues. 
109. The representative of Turkey  said that the TRIPS Agreement should include a mandatory 
disclosure requirement.  She said that WTO Members were ready to start text-based negotiations on 
the CBD/TRIPS issues.  She said that, as a co-sponsor of document TN/C/W/52, her delegation 
recognized two important implications  of the consultations conducted by Minister Støre in July:  the 
existence of shared objectives on the TRIPS/CBD issu e and the agreement of two thirds of the WTO 
Members on the key parameters of the three TRIP S issues.  These facts needed to be taken into 
account in informal or formal decisions.  She sai d that document TN/C/W/52 should be a basis for 
further discussions and that the TRIPS issues should be part of the Single Undertaking. IP/C/M/58 
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  110. The representative of Japan
 said that his delegation's positi on on the relationship between the 
TRIPS Agreement and the CBD remained unchanged.  It  was of the view that the issue of compliance 
with the CBD be addressed separately from the issue of  erroneously granted pate nts.  In this regard, 
his delegation had made a proposal on database syst ems for patent examination purposes.  He said 
that the issue of compliance with the CBD needed to be discussed in a comprehensive manner.  His 
delegation was not convinced by the argument th at the mandatory disclosure requirement could 
effectively monitor the violation of the CBD.  He said that more in-depth, comprehensive, technical 
and factual discussions were needed.  He informed the Council that the issue of compliance with the 
CBD had been intensively discussed at the 9th Conference of the Parties (COP-9) of the CBD in Bonn, 
Germany in May 2008 and would continue to be ta ckled at COP-10 to be held in 2010.  He also 
informed the Council that the WIPO IGC had addr essed the interface between intellectual property 
and genetic resources or related traditional knowledg e.  He said that discussion in the WTO should 
take account of those exercises.  He said that, since intellectual property was an essential tool for 
technology transfer, knowledge dissemination and prof it gains for benefit sharing, it was definitely 
complementary to the CBD objectiv es.  The proposal of a mandatory disclosure requirement should 
be carefully examined taking into due considerati on the adverse impact it might have on intellectual 
property systems, patent applicants and overall innova tive activities.  He further said that the issues of 
TRIPS/CBD and GI extension should be di scussed individually on their own merits. 
111. The representative of the United States  said that his delegation's position on the three agenda 
items was well-known, and had been reiterated in the various meetings and discussions held in 
connection with the July ministerial meeting.  His delegation did not support amending the TRIPS 
Agreement to address the concerns of the proponents of the patent disclosure requirement as doing so 
would not be the most effective way of addressing  those concerns.  His delegation continued to 
believe that Members should focus on the shared  objectives that had been revealed through the 
Council's work to date.  His delegation agreed th at prior informed consent and equitable benefit 
sharing with respect to the use of genetic resour ces and related traditional kn owledge were important 
issues, and also agreed on the importance of av oiding erroneously granted patents.  However, 
Members continued to diverge on the premise that a disclosure requirement would be an effective 
means of achieving the shared objectives.  His dele gation disagreed with this premise and therefore 
was not able to support the initiation of negotiations  as part of the Single Undertaking towards a 
preordained outcome that would not, in its view, accomplish the shared objectives. 
112. He said that, at a fundamental level, the mo st critical element in ensuring appropriate 
compliance with prior informed consent and access and benefit-sharing requirements was the 
development and strengthening of national regimes and legal frameworks designed specifically to 
accomplish these objectives.  Bringing the patent system into the equation would not make sense in the absence of well-functioning access and benefit-shar ing regimes.  Even if strong prior informed 
consent and access and benefit-sharing systems we re in place, his delegation wondered how new 
patent requirements, including the possibility of deni al of patents or revocation of patents in some 
circumstances, would help accomplish the legitimat e and important shared objectives.  The most 
effective way to ensure the effective sharing of bene fits was to generate benefits in the first place.  
Benefits would be generated when  useful and good products were developed and commercialized and 
the existence of an incentive through the patent sy stem was a critical element in encouraging such 
development and commercialization.  With this, and with meaningful national access and benefit-
sharing systems in place, Members could have co nfidence that the common objectives could be 
achieved. 
113. Finally, he noted that the agenda of the C ouncil limited Members' discussion to consideration 
of the three items in tandem.  He said that some  references had been made to document TN/C/W/52, 
which included only one issue on the agenda.  The tw o other issues that it covered were not reflected 
on the Council's agenda.  The fact that some Me mbers had found it useful to address these issues 
together through a parallel approach did not overc ome his delegation's vigorous opposition to their  IP/C/M/58 
 Page 23 
 
 
  being considered as a package in the context of the Doha Developmen t Agenda negotiations, 
particularly in light of differences in negotiating ma ndates, or the lack thereo f, with respect to these 
issues.  He said that these issues mu st continue to be considered on their individual merits and within 
the specific bodies and consultation mechanisms desi gnated in previous ministerial guidance, which 
could not be short circuited by the work of the Counc il.  Returning to the items that were reflected on 
the Council's agenda, he said that his delegation re mained committed to being actively engaged in the 
Council's examination as well as consultation of these issues. 
114. The representative of New Zealand  did not accept the artificial parallelism between three 
TRIPS issues.  He said that the insistence that process and outcomes on these three issues should be 
linked was not a negotiating position, but a demand by the proponents based on tactical positioning.  
He reiterated that Members needed to address each issue on its own merits.  His delegation, together 
with a number of Members, had outlined their concer ns in a non-paper circulated on 6 June 2008.  
While this paper did not have the support of 110 Members, it was co-sponsored by a broad cross-
section of the membership with a wide geographi cal spread, including developed and developing 
countries.  He said that there was a mandate for nego tiations on the issue of GI register, and therefore 
his delegation was committed to the successful conc lusion of these negotiations as part of the Single 
Undertaking.  By contrast, there was no mandate for negotiations on the issues of GI extension and TRIPS/CBD, and the substance of these two issues was different.  Regarding the issue of GI extension, he said that the proponents had failed to justify the need for the GI extension and therefore 
his delegation rejected the assertion that this issue was ripe for text-based negotiations.  Regarding the 
issue of TRIPS/CBD, he noted the "importa nt common ground on key underlying objectives" 
indicated in the Director-General's report, a nd said that New Zealand shared the objective of 
preventing the misappropriation of biological resour ces, but was not convinced that an amendment to 
the TRIPS Agreement was the best way to achieve that objective.  He said that Members had been 
negotiating constructively on the issue of TRIPS/ CBD in the Council, and his delegation would 
continue this engagement.  However, his dele gation could not accept the proposal in document 
TN/C/W/52 because it posed real commercial risks for New Zealand and potentially created new 
barriers to trade.  He said that the starting-point  for these discussions should be the reports from the 
Chair of the Special Session of the TRIPS Counc il (document TN/IP/18), and the Director-General 
(document TN/C/W/50).  These two reports noted the areas where significant divergences and potential convergence existed.  He said that hi s delegation was ready to continue substantive 
discussions. 
115. The representative of Egypt
 associated his delegation with the statement made by Côte 
d'Ivoire on behalf of the Disclosure Group.  He sai d that there was a continuing lack of engagement 
from a few Members on this issue, which had significant impact on developing countries, particularly with respect to the development prospects of the communities in these countries.  He said that there 
was a need to introduce an amendment to the TR IPS Agreement to include a mandatory disclosure 
requirement, the principle of prior informed consent,  and equitable benefit sharing, in order to bring 
the TRIPS Agreement in line with the CBD precepts.  Therefore, he urged all Members to proceed in 
good faith towards this end.  He also said that all three TRIPS issues needed to be considered in 
parallel and to be included as pa rt of the horizontal process. 
116. The representative of Korea 
said that his delegation had not heard any convincing argument 
that there existed a conflict between the TRI PS Agreement and the CBD which necessitated an 
amendment to the TRIPS Agreement in order to address the CBD goals.  Therefore, Korea still 
remained of the view that the TRIPS Agreement and the CBD could be implemented on their own.  
He said that the discussion on this issue had not been  exhausted in terms of substantive and technical 
elements.  It was impossible to move on to the prot ection of traditional knowledge and folklore before 
Members reached consensus on their definition and sc ope.  He said that it would be meaningful for 
the Council to await the outcome of related discussi ons in WIPO.  He also expressed his delegation's 
concern over the linkage between the three TRIPS i ssues.  He said that the so-called parallelism IP/C/M/58 
Page 24  
 
  would make it complicated to find solutions in this  situation of stalled negotiations, and that each 
issue should be discussed on its own merits.  He fu lly supported the statements made by Japan, the 
United States and New Zealand.  His delegation stood ready to engage in technical discussions on the 
CBD/TRIPS issue in the future. 
117. The representative of Canada
 said that it had not been demonstrated that there was a problem 
that would require an amendment to the TRIPS Ag reement.  In his view, the TRIPS Agreement and 
the CBD were mutually supportive, and therefore th ere was no need to amend the TRIPS Agreement.  
The most meaningful way to advance the discussion on the relationship between the TRIPS Agreement and the CBD in the WTO was to engage in a fact-based technical discussion of the various 
proposals made in the TRIPS Council.  Time and co nsideration should be given to a full scoping of 
the issue before proceeding further, with particular  focus on either best practices or problems in the 
implementation of the CBD.  He expressed his dele gation's disappointment that the July meeting had 
ended in an impasse.  Nonetheless, his delegati on remained strongly committed to the WTO and the 
multilateral process and supported ongoing discussions to try to reach full modalities in agriculture 
and NAMA by the end of the year.  He said that attempts to interlink the three TRIPS issues and 
include them as part of the Single Undertaking were not helpful.  His delegation did not support this 
artificial parallelism and believed that these three issues should be dealt with individually.  Finally, he 
said that his delegation was committed to accelerati ng the work of the WIPO IGC as per its mandate 
and to achieve concrete outcomes.  He informed the Council that great efforts had been made during 
the last IGC session to find a way forward and to  establish a process seeking to accelerate the work on 
the protection of traditional cultural expressions, traditional knowledge and genetic resources. His 
delegation looked forward to engaging  with other member States and the new Chair in order to build a 
consensus in advance of the next session of the IGC scheduled for March 2009. 
118. The representative of the European Communities
 said that, as a co-sponsor of document 
TN/C/W/52, his delegation had agreed to include th e three TRIPS issues as part of the horizontal 
process and to support parallel progress in each of the th ree issues at stake.  De spite the failure of the 
Ministerial Conference in July, his delegation rema ined committed to this common platform.  Like 
other co-sponsors, his delegation considered that  technical discussions on these three TRIPS issues 
had been exhausted and it was time to move to text-based negotiations.  With regard to the disclosure 
issue, his delegation had taken a constructive stan ce from the outset and expressed readiness to meet 
developing countries' concerns while preserving the ba lance of rights and obligations of the patent 
system.  He reiterated three key elements of the co mmon platform.  First, a legally binding disclosure 
requirement should be introduced regarding the coun try of origin or source of genetic resources and 
associated traditional knowledge in patent app lications, with this requirement applying to 
international, regional and nationa l patent applications at the earliest stage possible. Second,  
Members should work further on the concept of  traditional knowledge in order to agree on a 
definition.  Third, patent applications should not  be processed without fulfillment of the disclosure 
requirement, which would occur if the patent app licant failed or refused to declare the required 
information and if, despite being given the opportunity  to remedy that omission, continued to do so.  
While his delegation did not necessarily share each element of every disclosure proposal, he said that 
document TN/C/W52 was a common platform shared by a wide range of WTO Members.   In conclusion, he reiterated his delegation's commitme nt to engage in constructive discussions on this 
issue. 
119. The representative of Australia
 opposed the artificial parallelism in linking the three TRIPS 
issues and said that these th ree issues should be dealt with separately on their own merits and in their 
appropriate forums according to their separate mandat es.  On the TRIPS/CBD issue, he said that there 
were common objectives, and therefore Members coul d work towards them in appropriate forums.  
He urged the proponents to keep their demands realis tic and to have a practical and focused approach.  
He said that, as a mega-biodiverse country with a unique indigenous culture, his delegation had as 
strong an interest in equitable access to genetic  resources and associated traditional knowledge as any  IP/C/M/58 
 Page 25 
 
 
  other developed or developing country Member.  Au stralia considered that the TRIPS Agreement and 
the CBD were consistent and coul d be implemented in a mutually supportive manner.  As a party to 
the CBD, his delegation shared its relevant objec tives, including to facilitate access to genetic 
resources with prior informed consent and mutually  agreed terms and to take measures aimed at 
equitable sharing of benefits and utilization of genetic resources, and to respect, preserve and maintain 
traditional knowledge.  As Australia took all these issues seriously, it called for full consideration of 
the assertion that the patent disclosure requirement  was the best mechanism for achieving the shared 
objectives.  He said that his delegation supported continuing fact-based discussions, particularly in 
WIPO which was the place to consider many of the technical implications of the different proposals.  
He said that Australia's national experience indicated  that effective benefit-sharing regimes could be 
implemented outside of the patent system.  Au stralia had implemented legitimate systems and 
contracts to that effect.  He reiterated his delegation's concerns over the mandatory disclosure 
requirements which had not been adequately addressed by the proponents, namely its implications for 
the integrity of the patent system and the administ rative capacity of patent offices.  Accordingly, he 
said that his delegation preferred to consider the efficacy in designing the patent disclosure 
requirement in more detail before commenci ng discussions on any proposed TRIPS amendment. 
120. The representative of Cuba  said that, as a co-sponsor of document IP/C/W/474, his delegation 
advocated an amendment of the TRIPS Agreement so as to fulfil the objectives of the CBD and to 
minimize or prevent misappropriation of genetic re sources and associated traditional knowledge.  He 
said that, although the issues of GI extension and GI register were  important for a significant group of 
Members and his delegation supported horizonta l modalities on a text-based  negotiating process 
without prejudging any outcomes, it did not welcome the proposal concerning the GI Register in its 
present form because it exceeded the mandate provided for in Article 23.4 of the TRIPS Agreement in 
substantive respects.  Regarding the GI extension issue, he said that ev en if this issue were dealt with 
separately from the system proposed by the Europ ean Communities, his delegation did not support it 
as part of a negotiating package.  In view of the above, horizontal negotiations appeared to be an 
appropriate way of clarifying how to m ove forward towards a common understanding. 
121. The representative of South Africa  supported the statement made by Côte d'Ivoire on behalf 
of the Disclosure Group.  He recalled that the pro posal contained in document IP/C/W/474 called for 
the amendment to the TRIPS Agreement to include a mandatory disclosure requirement.  He said that 
over a number of years, the Disclosure Group had set out its case in the Council and had clearly proven that there was a conflict between the TRIPS Agreement and the CBD.  He said that the time 
had come to remove that conflict and that Memb ers should move forward in terms of text-based 
negotiations.  He welcomed the European Comm unities' support for the introduction of a legal 
requirement in the TRIPS Agreement.  Concerning the proposal contained in document TN/C/W/52, 
he said that his delegation did not see any link between the issues of TRIPS/CBD, GI extension and GI register, and that the TRIPS/CBD issue should not be  used to get a free ride for GI issues.  He said 
that the CBD/TRIPS issue was a stand-alone issue th at should be negotiated on its own merits, and 
that other issues should be also negotiated on th eir own merits wherever there were mandates. 
122. The representative of Argentina
 said that his delegation did not support the artificial 
parallelism between the three TRIPS issues as propo sed in document TN/C/W/52.  He said that 
Argentina also suffered from misappropriation of genetic resources but did not endorse the solution 
proposed by the co-sponsors of that document, nor support amending the TRIPS Agreement.   He said 
that Members should continue discussions on th e TRIPS/CBD issue without forgetting that 
substantive work was being done in WIPO and the CBD. 
123. The representative of Angola  supported the statement made by the African Group.  He said 
that the time had come to put an end to the squabbl e over the past nine years on this issue.  He said 
that while over 110 Members had true concerns, so me Members in the minority had other concerns.  IP/C/M/58 
Page 26  
 
  He proposed that the Council take into considerati on both sides' concerns and draft a text which all 
Members could agree to. 
124. The Council took note
 of the statements made under these three agenda items and agreed  to 
revert to them at its next meeting.  
H. REVIEW UNDER PARAGRAPH 8 OF THE DECISION ON THE IMPLEMENTATION OF PARAGRAPH 6 
OF THE DOHA DECLARATION ON THE TRIPS  AGREEMENT AND PUBLIC HEALTH  
125. The Chairman  recalled that paragraph 8 of the waiv er Decision provided that the Council for 
TRIPS should review annually the functioning of the system set out in the Decision with a view to 
ensuring its effective operation and should annuall y report on its operation to the General Council.  
Furthermore, the paragraph provided that this review should be deemed to fulfil the review 
requirements of Article IX:4 of the WTO Agreement. 
126. He said that the Secretariat had prepared a draft cover note for the Council's report modelled 
on that of last year's report (JOB(08)/102).  The draft cover page contained factual information on the 
implementation and use of the system established under the Decision and on the acceptance of the Protocol Amending the TRIPS Agreement.  He pr oposed that, in accordance with the way that the 
Council prepared its report last year, the part of the minutes of the meeting reflecting the discussions 
held under this agenda item be  attached to the cover note. 
127. He informed delegations that, since the circ ulation of the draft cover note, Canada had 
provided a communication to the Council informing it th at the first shipment of the generic medicine 
produced under Canada's Access to Medi cines Regime (CAMR) had taken place on 
24 September 2008 (IP/C/W/526).  The final version of the cover note for the Council's report would 
be updated accordingly. 
128. As regards the status of acceptances of the Protocol Amending the TRIPS Agreement that 
was done at Geneva on 6 December 2005, he said th at, since the Council's meeting in June, Jordan 
had notified its acceptance of the Protocol on 6 August 2008 (document WT/Let/630).  The 
Secretariat had circulated an update to the note on th e status of acceptances of the Protocol that the 
Council had requested it to prepare at its meeting in  October 2006 (IP/C/W/490/Rev.3).  He said that 
the Secretariat would continue to update it periodically. 
129. The Chairman recalled that the Protocol woul d enter into force for the Members that had 
accepted it upon acceptance of the Protocol by two thirds of the Members.  It was open for acceptance by Members until 31 December 2009 or such later date as may be decided by the Ministerial Conference.  He encouraged Members to ensure that the necessary measures were being taken in 
capitals to allow the consideration of the acceptance in a timely fashion. 
130. The representative of Canada
 informed the Council that, following Rwanda's notification to 
the Council in July 2007 regarding its inten tion to import drugs under CAMR, the Canadian 
pharmaceutical company Apotex had been awarded a tender from the Rwandan Government to export 
the triple combination HIV/AIDS drug "ApoTriav ir" in May 2008.  This had occurred after the 
Commissioner of Patents had granted Apotex the fi rst ever compulsory licence under the terms of the 
Decision, as implemented by CAMR.  On 24 Septem ber 2008, Apotex had sent its first shipment of 
lower-cost HIV/AIDS drugs produced under CAMR to  Rwanda.  The representative of Canada said 
that his Government recognized the devastating impa ct of HIV/AIDS and was engaged in a long-term, 
comprehensive approach to fighting the disease.  The first shipment of ApoTriavir was a key 
achievement with regard to access to  medicines in developing countries.  He hoped that this would 
lead to a better understanding of how CAMR could be  used to effectively ad vance this humanitarian 
objective.  While CAMR received continuing support,  he noted that it was only one part of the  IP/C/M/58 
 Page 27 
 
 
  Government's broader response to improving access to medicines in developing countries.  His 
delegation also supported a number of other initiatives to provide medicines and vaccines to countries 
in need.  For example, CAN$450 million had been pledged over the next three years to the Global 
Fund to Fight AIDS, Tuberculosis and Malaria, which facilitated the purchase and delivery of life-
saving medicines to developing countries.  Domestic legislation had also been amended to facilitate 
the transfer of essential medicines to developi ng countries through the Donations of Medicine 
Eligibility Program.  With respect to the draft report to the General Council (JOB(08)/102), his 
delegation agreed with the contents and suggested  removing the square brackets currently found in 
paragraph 6 of the draft report. 
131. The representative of India  welcomed the first shipment of HIV/AIDS drugs to Rwanda 
which was a key achievement in the use of the sy stem established under the Decision.  He proposed 
that the Secretariat prepare a compilation of docum ents concerning national implementing legislation 
adopted by WTO Members with a view to facilitati ng the use of the system by those Members with 
insufficient or no manufacturing capacities in the pharmaceutical sector. 
132. The representative of Ecuador  expressed his satisfaction with the first export of medicines 
based on the system established under the Decision.  He  paid tribute to the Canadian Government for 
having taken measures to facilitate the export of  medicines which enabled developing and least 
developed countries with no or limited manufact uring capacities to deal with public health 
emergencies.  However, his dele gation considered the procedures for such exports set up by the 
system to be too complex and bureaucratic, serious ly reducing the chances of meeting the objectives 
of the Decision, i.e. to enhance access to medici nes and to protect public health.  This was witnessed 
by the procedures in Canada, which took some thr ee years to achieve the supply of medicines to 
Rwanda.  His delegation appealed to Members with manufacturing capacities to implement the system in a flexible manner into their national law and to ensure the availability of simple and 
operational procedures.  He informed the Council that his Government was drawing up a programme 
on access to medicines and intended to make full use of the flexibilities contained in the system, as 
well as of other flexibilities in the TRIPS Agreem ent, to address the public health needs of its 
population. 
133. The representative of the European Communities
 said that his delegation attached great 
importance to the system established under the Decisi on.  He welcomed the fact that, following the 
notification by Rwanda on its intention to use th e system and Canada's decision to authorize the 
manufacture and export of the drugs concerned under compulsory licence, the first shipment of the 
drugs had left Canada in Sept ember 2008.  The shipment of sev en million doses to Rwanda would 
help save the lives of several thousan d patients.  This was an important step which demonstrated that 
the system worked when it was used.  He recalled that his delegation had adopted 
Regulation 816/2006 implementing the Decision in 2006.  This allowed European companies to produce generic drugs under compulsory licence for export to countries facing public health 
problems.  His delegation stood ready to respond to requests from developing countries in need of 
medicines.  He also encouraged those WTO Members who had not yet accepted the Protocol Amending the TRIPS Agreement to do so as soon as possible.  It was important for Members to 
confirm their commitment to this process so that the Protocol could enter into force as soon as 
possible. 
134. The representative of China
 said that the supply of medicines by a generic manufacturer from 
Canada based on the system established under th e Decision set a good example.  His delegation 
attached great importance to the issue of TRIPS and public health.  It had ratified the Protocol 
Amending the TRIPS Agreement in 2007 and had launc hed the process of amending relevant national 
laws and regulations to implement the Protocol in 2008.  The results would be notified to the Council 
after completion of this process.  His delegation welcomed the notification of national implementing 
legislation by some Members.  He encouraged  those Members who had already amended their IP/C/M/58 
Page 28  
 
  national laws to make presentations to the Counc il with a view to setting out their implementing 
measures, as well as any problems they had enc ountered and the way in which those had been 
addressed.  This information was important for many developing country Members potentially facing some technical difficulties in amending their national laws and regulations. 
135. The representative of Switzerland
 welcomed the first use of th e system established under the 
Decision by a developing country and commended Rwa nda for doing so.  As referred to in the draft 
report, his delegation had notified the Council of the entry into force of its revised Federal Law on 
Patents for Inventions on 1 July 2008.  Its Article 40 d provided for the possibility of granting a 
compulsory licence for export purposes in accordance with the draft Article 31 bis of the TRIPS 
Agreement.  Through the implementation of the sy stem into national law, his delegation had made 
available its manufacturing capacities in the pharmaceu tical sector to developing and least developed 
countries facing a situation which was intended to be addressed by the system and enabling them to 
make use of the new flexibility introduced in the TRIPS Agreement.  For more detailed information, 
he referred Members to the revised law as notifie d to the Council (IP/N/1/CHE/P/9).  As regards 
China's proposal to invite Members to present thei r implementing legislation to the Council, he said 
that his delegation stood ready to do so in a future meeting.  He supported India's proposal to compile 
national legislation implementing the system which could serve as a reference tool for Members intending to make use of the system. 
136. He said that his delegation was concerned about  the status of acceptances of the Protocol 
Amending the TRIPS Agreement.  The Secretariat' s revised note showed that only 18 Members had 
accepted it so far whereas more than 100 acceptances  were needed for the amendment of the TRIPS 
Agreement to enter into force.  He encouraged WTO Members who had not yet ratified the Protocol 
to expedite national procedures so that the amendment could enter into force by the end of 2009.  This 
would also provide a safe legal basis in the TRI PS Agreement for those Members who had already put 
in place implementing legislation or were in the process of doing so. 
137. The Chairman
 proposed that the Council agree to the cover note to the report, as contained in 
JOB(08)/102 and updated concerning  Canada's latest communication, and also that the Council 
minutes containing the record of the discussion be attached to it. 
138. The Council took note  of the statements made and agreed  to proceed as suggested by the 
Chair. 
I. NON-VIOLATION AND SITUATION COMPLAINTS  
139. The Chairman  recalled that paragraph 45 of the Hong Kong Ministerial Declaration directed 
the TRIPS Council to continue its examination of th e scope and modalities for complaints of the types 
provided for under subparagraphs  1(b) and 1(c) of Article XXIII of GATT 1994 and make 
recommendations to the next session of the Minister ial Conference.  It was agreed that, in the 
meantime, Members would not initiate such  complaints under the TRIPS Agreement. 
140. 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 had new thinking on this item to share them, a nd also enable the Council to consider improved 
ways of organizing its work on this matter. 
141. The Council agreed  to revert to the matter at its next meeting. 
J. REVIEW OF IMPLEMENTATION OF THE TRIPS  AGREEMENT UNDER ARTICLE 71.1 
142. No statements were made  under this agenda item.  IP/C/M/58 
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  143. The Council agreed  to revert to the matter at its next meeting. 
K. REVIEW OF THE APPLICATION OF THE PROVISIONS OF THE SECTION ON GEOGRAPHICAL 
INDICATIONS UNDER ARTICLE 24.2 
144. 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 said that, since its meeting in 
June, the Council had received responses from Colombia  to the Checklist of Questions contained in 
document IP/C/13 and Add.1.  These responses had b een circulated in document IP/C/W/117/Add.32. 
145. He also recalled that, at its meeting in Februa ry 2007, the Council had agreed that the Chair 
hold further consultations in due course on how th e Council should organize its future work on the 
review.  Given that the Chairman had not received any representations from delegations on this issue, 
he had not yet held such further consultations.  However, he said that, like his predecessor, he 
remained ready to hold such consultations once he sensed an active interest in pursuing the matter. 
146. He urged those delegations that had not yet pr ovided responses to the Checklist of Questions 
contained in document IP/C/13 and Add.1 to do so.  Also, those Members that had already provided 
responses could provide updates to the extent that there had been any signif icant changes to the way 
they provided protection to geographical indications. 
147. The Council agreed  to revert to the matter at its next meeting. 
L. SIXTH ANNUAL REVIEW UNDER PARAGRAPH 2 OF THE DECISION ON THE IMPLEMENTATION 
OF ARTICLE 66.2  OF THE TRIPS  AGREEMENT  
148. The Chairman  recalled that, at its meeting in February 2003, the Council had adopted a 
decision on the "Implementation of Article 66.2 of  the TRIPS Agreement".  Paragraph 1 of the 
Decision provided that developed country Members shall submit annually reports on actions taken or 
planned in pursuance of their commitments under Article 66.2.  To this end, they were to provide new 
detailed reports every third year and, in the interv ening years, provide updates to their most recent 
reports.  These reports were to be submitted prior to the last Council meeting scheduled for the year in 
question.  He said that the second set of detailed a nnual reports under the Decision had been presented 
to the Council's meeting in October 2006.  At its  meeting in June 2008, the Council had requested 
developed country Members to submit a second set of updates to those reports for the October 
meeting.  The Secretariat had issued on 14 July  an airgram (WTO/AIR/3223) to remind developed 
country Members of this request. 
149. The Council had received reports from the follo wing developed country Members:  Japan, 
New Zealand, Norway, the United States, Switz erland, Canada, the European Communities and 
individual member States (namely Austria, Belgiu m, the Czech Republic, Denmark, Finland, France, 
Germany, the Slovak Republic, Spain, Sweden a nd the United Kingdom), as well as from Australia 
(being circulated in document IP/C/W/519 and addenda). 
150. As regards the purpose and conduct of the revi ew of this information, he recalled that 
paragraph 2 of the Decision on the Implementation of Article 66.2 of the TRIPS Agreement explained 
that the annual review meetings shall provide Me mbers with an opportunity to pose questions in 
relation to the information submitted and request ad ditional information, discuss the effectiveness of 
the incentives provided in promoting and encouragin g technology transfer to least-developed country 
Members in order to enable them to create a s ound and viable technological base, and consider any 
points relating to the operation of the reporting procedure established by the Decision. IP/C/M/58 
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  151. He said that, since some of the information ha d been received only very recently, and most of 
it was available only in its original language, he intended to provide an opportunity at the next 
meeting for Members to make further comments on the information which had just been submitted 
and which might not have been studied by Member s, as well as on any further information that might 
be provided before that meeting. 
152. He recalled that, just before the Council's m eeting in June, the delegation of Lesotho, on 
behalf of the LDC Group, had sent a request to the WTO Secretariat to organize a workshop that 
would bring together LDC and de veloped country experts to discuss transfer of technology under 
Article 66.2 back to back with the Council's meeting in October.  Pursuant to that request, the 
Secretariat had organized such a workshop the day before the present meeting.  He said that he 
understood that there had been a constructive exchange  of views which had been useful to both LDC 
and developed count ry delegations. 
153. He further said that, as requested by the Counc il at its meeting in June, the Secretariat had 
prepared a brief background note setting out the re ports that had so far been submitted under the 
Decision, including the reports for the annual review  that had been submitted by 20 October.  The 
note had been circulated in document IP/C/W/522. 
154. The representative of Lesotho, speaking on behalf of the LDC Group in the WTO
, thanked 
developed country Members for having agreed to the LDC Group's request for the workshop on Article 66.2 and for the commitment they had shown in  explaining their reports.  It had been a very 
good experience that had helped LDCs to unders tand what their developed country partners had 
provided them with under Article 66.2.  While a lot had been achieved, it could not always be clearly 
understood.  This was mainly because of the lack of a uniform reporting mechanism, as well as of a 
common definition of the term "transfer of technol ogy" and of what constituted "incentives to be 
provided to institutions and enterprises". 
155. She said that the LDC Group saw the implementation of Article 66.2 as an important issue 
and considered the TRIPS Council decision on 19 February 2003 on the implementation of 
Article 66.2 (IP/C/28) to be critical for LDCs to effectively utilize the transition periods accorded 
under the Agreement in order to create a sound an d viable technological base for development. 
156. She further said that the LDC Group's understanding on Article 66.2 comprised the following 
points:  first, the provision was mandatory for a ll developed country Members;  second, it was owed 
specifically to LDCs and not to developing countries in general;  and third, developed countries were 
to provide "incentives" to institu tions and enterprises in their te rritories.  "Incentives" included 
financial, regulatory, administrative and legislativ e measures taken by deve loped country Members, 
including preferences for those institutions and en terprises that effectively transferred technology.  
The key point was that the incentives would induce par ticular sets of actions on the part of those to 
whom they were directed.  Further, incentives were to be provided to enterprises and institutions in 
developed country Members' territories, which encompassed private actors, quasi-government 
agencies, public-private partnerships, educati onal institutions, research institutions and even 
government agencies.  Incentives should be for the purpose of promoting and encouraging technology 
transfer.  Therefore, technology transfer could not be an incidental result or part of some broader effect of another measure, as had been clearly noted  in the reports by developed country partners.  
Qualifying measures must not only be specifically targeted at technology transfer, they must in addition promote such transfer. 
157. She said that, during the workshop of the previous day, it had been understood that without 
clear definitions and parameters, there could be no clear and useful indicators for measuring the 
performance or for monitoring, evaluating and analyz ing the implementation of Article 66.2.   LDCs 
understood technology transfer to mean a process th at involved the interactive provision of a package  IP/C/M/58 
 Page 31 
 
 
  of measures.  It was not necessary to reinvent the wheel as parties could draw on sources such as 
UNCTAD and Agenda 21 for a definition.  The LDC Group understood technology transfer to be a transfer from one party to the other of a package incl uding, at a minimum, but certainly not limited to:  
(i) physical capital and goods, including spec ialized equipment, and goods embodying or 
incorporating the relevant technology or idea;  ( ii) skills and know-how, technical and manual skills 
training, scientific and academic training, knowle dge of operating the technology or equipment, 
training and technical advice and assistance necessary to assemble, maintain and operate a viable system or technology;  and (iii) information and data, including manuals , designs, blueprints, 
operating instructions, scientific and technical public ations and reports.  She said that the possibility 
of adopting clear parameters, including the above crite ria, should be discussed and agreed to, in order 
to ensure uniform reporting based on similar me asurable indicators that addressed squarely the 
implementation of Article 66.2 and not ot her provisions or broader measures. 
158. She said that the obligation in Article 66.2 implied that international technology transfer from 
developed countries to LDCs had to occur on less than commercial terms.  Thus, the incentives 
provided by developed country measures had to be  accompanied by financial measures that ensured 
that LDC enterprises and institutions accessed technol ogy at grant or concessional rates.  Further, 
given the legitimate expectations of LDCs in cr eating a sound and viable technological base, the 
outcome of any technology transfer had to ensure th at institutions and enterprises in LDCs were able 
to use, reproduce and adapt the technology to the same extent as a licensee of a patented technology.   
Without such a capacity, it was impossible to build  domestic capacity for commercial scale activities 
related to the technologies.  This  would be one of the measures of effectiveness of the incentives 
provided by developed countries.  As stated by the LDC Group in the workshop, there were two forms 
of technology transfer, one through the supply of  hardware such as plant machinery, and second, 
through the supply of software such as  research and training and education. 
159. Least developed countries held the view, wh ich she said had been shared by developed 
countries during the workshop, that there was so far no uniform reporting format, making the analysis 
and measurement of the measures im plemented more difficult.  In that regard, the LDC Group pointed 
out the need for a review of the implementati on of Article 66.2 in which measures should be 
discussed and agreed to. There was al so a need to develop a tool kit to help LDCs self-assess whether 
technology transfer by developed countries had occu rred.  During the development of the tool kit, 
issues of definition of terms and a uniform reporti ng mechanism should be sorted out.  There was a 
need to use a uniform reporting format, as was adopted for SPS and TBT, which ensured 
comparability of reports.  Persons/contact points/ag encies responsible for implementing Article 66.2 
should be identified in both LDCs  and developed countries to ensu re consistency, clear reporting 
mechanisms and implementation.  If this was done, it would be clear that technology transfer occurred 
to LDCs under this provision, which was not the ca se so far since most of the reports had tended to 
mix measures granted to both LDCs and developing countries. 
160. On behalf of the LDC Group, she recommended th at another workshop be organized back to 
back with a TRIPS Council meeting in the course of 2009, not later than August, to ensure that the 
outcomes were reflected in the final reports to th e TRIPS Council.  Such a workshop should have the 
participation of all Members.  In this regard, sh e requested the WTO Secretariat to sponsor at least 
one capital-based official dealing with transfer of  technology from LDC Members to ensure effective 
participation. 
161. She said that the LDCs' understanding was that ther e was an agreement to have the review of 
Article 66.2 in order to include, among others, a un iform reporting mechanism, clear parameters of 
what constituted technology transfer and incen tives by the developed countries, as well as the 
development of a tool kit to help the assessment of technology transfer.  The LDC Group remained 
ready to engage with Members to ensure that Ar ticle 66.2 became operational and effective, so as to 
enable LDCs to build their technological base for development. IP/C/M/58 
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  162. The representative of Brazil
 said that his intervention under the agenda item stemmed from a 
systemic concern with regard to the implementati on of the TRIPS Agreement.  Article 66.2 was an 
important element of the Agreement and also one of  the key elements of the trade-off between rights 
and obligations underlying the Agreement.  He said  that transfer of technology was a concept to 
which Brazil attached the utmost importance.  In  reviewing the reports presented under Article 66.2, 
the Council had to avoid any interpretation that might lead to a restriction or narrowing down of the 
concept, for example to mere technical assistance activities.  Article 66.2 required the establishment 
of real flows of technology sufficient to assist LDCs in creating a sound and viable technological base.  The notion of transfer of technology enco mpassed a whole range of activities, incentives and 
policies, which had to target promoting the incl usion of LDCs into the knowledge-based economy. 
163. The representative of Bangladesh
 thanked developed country Members for the submission of 
their reports in pursuance of the TRIPS Council decision of 19 February 2003 and said that his 
delegation associated itself with the statement made  by the delegation of Lesotho on behalf of the 
LDCs.  At the request of the LDCs, a day-lo ng workshop had been held on 27 October 2008 to 
enhance the understanding of LDCs in respect of the annual submissions of developed countries in 
compliance with the obligation under Article 66.2.   His delegation hoped that the workshop would 
bring more transparency in the future reports of developed country Members. 
164. The provisions of Article 66.2 were mandatory in nature and not best-endeavour clauses.  
Ministers in Doha had instructed the TRIPS C ouncil to put in place a mechanism for ensuring full 
implementation of the obligations in Article 66.2,  the main objective of which was to help LDCs 
create a sound and viable technological base by transferring technology from developed country 
Members.  He said that, at the Maseru Conference, LDC Ministers had urged developed country 
Members to provide incentives to en terprises and institutions in their territories that achieved effective 
technology transfer to LDCs and that went beyond workshops and seminars.  LDC Ministers had also 
stressed the need for establishing a monitoring mechanism to review the situations where enterprises 
and institutions of developed country Members had tr ansferred technology to LDCs as a result of such 
incentives in order to create a sound and viable technological base. 
165. He said that, as Article 66.2 was dedicated to LDC Members, the reporting should also be 
dedicated to LDCs.  Reviewing different submission s, his delegation had seen that not all developed 
country Members had shown their programmes LD C-wise and project-wise.  LDCs needed 
information of the appropriate kind and a cl ear understanding of the reporting system under 
Article 66.2 so as to evaluate whether and how it be nefited LDCs.  He said that his delegation was not 
saying that developed country Members should have  dedicated programmes for LDCs but that the 
reporting should be LDC-wise.  This would help  ascertain from LDC capitals the status of the 
programmes in question. 
166. He said that there should be a common unders tanding between devel oped country Members 
and recipient LDCs about the types of incentives given by each government agency or other entity 
and the effectiveness of these incen tives in promoting and encouraging transfer of technology.  His 
delegation had noticed that there were different pe rceptions about technology transfer and suggested 
that a common definition could be followed.  His delegation understood that the private sector in 
developed country Members could play  an important role in transfer of technology and that developed 
country governments could create an enabling atmosphere by providing incentives to their domestic institutions and enterprises. 
167. The TRIPS Council decision of 19 February 2 003 called for new detailed reports to be 
provided every third year and annual updates every othe r year.  He requested the Secretariat to inform 
his delegation of the reports made by each deve loped country Member.  His delegation sought 
information on:  (i) the type of technology that ha d been transferred by enterprises and institutions and 
the term on which it had been transferred;  (ii) th e mode of technology transferred;  (iii) specific  IP/C/M/58 
 Page 33 
 
 
  LDCs to which developed country enterprises and in stitutions had transferred technology;  (iv) the 
extent to which incentives were specific to LDCs;  and (v) any additional information that would help 
assess the effects of measures in promoting and encouraging transfer of technology to LDCs. 
168. He reiterated the request made by the delegation of Lesotho that another similar workshop be 
organized for the next year, back to back  with the year-end TRIPS Council meeting. 
169. The representative of Uganda  said that there was no clear standard of how reporting on 
Article 66.2 should be done.  In his view, it was clear from the workshop that there were gaps in the reports which he hoped would be identif ied and filled.  He said that there was a need to have a review 
of reports under Article 66.2 in order to include , among other things, a uniform reporting mechanism 
and to agree on the parameters that constituted tech nology transfer, in order to allow operation and 
effectiveness of the provision. 
170. The representative of Switzerland
 said that he believed there was a general agreement among 
Members that the workshop held the previous day had been conducted in a positive spirit and resulted 
in an informative exchange of experiences and views.   His delegation would be glad to participate in 
and contribute to another workshop next year as it was convinced that such a dialogue would lead to 
improvements in the processes of implementation of Article 66.2 and th e quality of reports. 
171. He said that a proposal had been made during the workshop to compile best practices and 
information on successful programmes and Switzerla nd believed it could provide  helpful information 
and assistance to developed country Members to focus on measures which had proved to be 
successful and mattered most to LDCs.  His dele gation was willing to contribute to a process to 
enhance the transparency and comprehensibility of the reports prepared by developed country 
Members under Article 66.2. 
172. He said that setting incentive measures in deve loped country Members al one would neither be 
sufficient to actually bring about technology transfer  to LDCs nor allow LDCs to create a sound and 
viable technological base.  In the end, it was the enterprise's decision as to whether or not to transfer 
its technology to a third country and that, while in centive measures might be one consideration, there 
were also other factors.  Other elements should be  considered and directly addressed at the national 
level in the LDCs so as to create a better framewo rk of conditions that would encourage developed 
country enterprises to invest in these countries and make use of incentive measures available in order 
to transfer their technology. 
173. He said that his delegation looked forward to c ontinuing the excellent cooperation that they 
had had the previous day with LD C partners and to further implement Article 66.2 obligations and 
cooperate with them in a wider context of technology transfer. 
174. The representative of the United States  said that the workshop had been very useful, 
particularly in light of the fact that in 2009 hi s delegation would be producin g the new triennial report 
under Article 66.2.  He said that developed country  Members had come away from the previous day's 
workshop with a lot of very concrete ideas about ho w they could continue to improve the quality of 
reporting and make it as clear as possible.  A number  of suggestions had been  reiterated in the clear 
and comprehensive statements made by LDCs in the present Council session with respect to, for 
example, a greater degree of information about poin ts of contact in connection with various incentive 
programmes.  This was an area where his dele gation had begun to make some progress but would 
continue to do more in the context of what was stated by the delegations of Lesotho and Bangladesh 
about focusing as much as possible on the activities th at were having effects in LDCs, even when the 
same programme might have targets in non-LDCs.   A number of other suggestions had been made 
that gave his delegation a lot of food for productive and fruitful thought. IP/C/M/58 
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  175. The representative of the European Communities
 said that his delegation was committed to 
the review exercise and to the provision of incentives for technology transfer under Article 66.2 with a 
view to helping LDCs to create a sound and viable  technological base.  He thanked the LDC Group 
for taking the initiative on the previous day's wo rkshop where a number of issues had been 
highlighted and some suggestions made concerning the reports.  His delegation stood ready to engage 
in further discussion as to how best to fulfil developed country Member s' reporting obligations. 
176. The representative of Australia  said that there had been many productive exchanges during 
the workshop on the previous day and many comme nts and suggestions made, particularly by 
Lesotho, Bangladesh and Uganda, addressing the case for transparency and contact points and that 
reports should focus on LDCs and confusion avoided by providing information that might overlap 
with technical capacity-building activities.  These ha d been useful insights that developed country 
Members could take on board. 
177. She said that her delegation looked forward to utilizing these suggestions in its report next 
year and would also be pleased to participate in fu ture workshops as it saw the value of maintaining a 
productive dialogue.  She agreed with Switzerland that Article 66.2 itself was a necessary but not 
sufficient condition to facilitate technology transfer and that there were other issues which needed to 
be addressed in the domestic framework of LD Cs in order to improve absorptive capacity. 
178. The representative of Japan  said that the workshop had been very enlightening and helpful to 
his delegation in order to improve its cooperatio n with LDC Members.  While sharing the view 
expressed by Switzerland that transfer of technology decisions were made by individual private enterprises, he said that the Japanese Government w ould make utmost efforts to improve the business 
climate which was conducive to the transfer of tec hnology.  His delegation looked forward to working 
further with LDC colleagues in this context. 
179. The representative of New Zealand
 said that useful discussions had taken place during the 
workshop the previous day on definitions and reporti ng criteria, including on the merits of uniform 
reporting by developed country Members.  Issues ha d been specifically raised with respect to New 
Zealand's report, which his delegation would be able to reflect upon in order to improve next year's 
report.  He said that his delegation supported the continuation of discussions and welcomed the 
suggestion of further workshops between developed countries and LD C partners in future years. 
180. The Chairman  said that he felt encouraged by the te nor of exchanges about the workshop held 
the previous day and said that he would like, on his own behalf as Chair, to compliment the delegation of Lesotho and the LDC Group as well as the developed country Members for their work and the 
success that they had achieved.  He looked forward to continuing a deepening of that process.  He 
urged those developed country Members that had not yet provided reports to do so.  He reiterated his 
intention to provide an opportunity, at the Counci l's next meeting, for Members to make further 
comments on the information submitted for this meeting that they had not yet had been able to study, 
and to continue the discussion on the implementation of Article 66.2. 
181. The Council took note
 of the statements and so agreed . 
M. TECHNICAL COOPERATION AND CAPACITY -BUILDING  
182. The Chairman  recalled that the Council had agreed, at its meeting in June, to hold its annual 
review of technical cooperation at the present m eeting.  In preparation for this annual review, 
developed country Members had once more been requ ested to update information on their technical 
and financial cooperation activities re levant to the implementation of  the TRIPS Agreement.  Other 
Members who had also made available technical c ooperation were encouraged to share information 
on these activities if they so wished.  On 14 July, the Secretariat had issued an airgram  IP/C/M/58 
 Page 35 
 
 
  (WTO/AIR/3222) reminding Members of this request.  Intergovernmental orga nizations observers to 
the Council as well as the WTO Secretariat had al so been invited to provide information. 
183. The Council had received information from th e following developed country Members:  
Norway, Japan, New Zealand, the United States,  Switzerland, Canada, the European Communities 
and individual member States (namely Austria, Bulgaria, the Czech Republic, Denmark, Estonia, 
Finland, France, Germany, Hungary, Lithuania, Portugal, the Slovak Republic, Slovenia, Spain, 
Sweden and the United Kingdom, and the European Pa tent Office), as well as from Australia (being 
circulated in document IP/C/W/517 and addenda).  Updated information had been obtained from the 
following intergovernmental organizations:  OECD, WHO, FAO, UPOV, UNCTAD and WIPO 
(being circulated in document IP/C/W/516 and adde nda).  In addition, the IMF had informed the 
Secretariat, by means of a letter dated 15 July 2007, that it did not undertake any TRIPS-related 
technical assistance and, hence, did not have any information to provide of direct relevance to the 
Council.  Updated information on the WTO Secretar iat's technical cooperation activities in the TRIPS 
area could be found in document IP/C/W/515. 
184. He also recalled that paragraph 2 of the TRIPS Council's 2005 decision on the "Extension of 
the Transition Period under Article 66.1 for Least-D eveloped Country Members" provided that "with 
a view to facilitating targeted technical and financ ial cooperation programmes, all the least-developed 
country Members will provide to the Council for TR IPS, 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 taking steps necessary to impl ement the TRIPS Agreement".  To that date, the 
Council had received such information from Sierra  Leone and Uganda.  Since the Council's meeting 
in June, Sierra Leone had followed up its earlier need s assessment by translatin g it into an initial two-
year technical assistance project to enable the c ountry to start taking forward the implementation of 
the TRIPS Agreement, and presented this project to  the Council in a new document IP/C/W/523.  In 
this communication, Sierra Leone had requested further consultations with  its developed country 
partners.  He understood that such consu ltations would be held the following day. 
185. He further recalled that, at the Council's meeti ng in June, Brazil had introduced an advance 
copy of its communication entitled "Technical Cooperati on and Capacity-Building:  'Cluster' A of the 
Development Agenda" (subsequently circulated as document IP/C/W/513).  Brazil had suggested that 
the Council take note of the 14 proposals contained in 'Cluster A' acknowledging, where applicable, 
their relevance for the implementation of Article 67 of the TRIPS Agreement.  Given that Members 
had not had an opportunity to study the communicati on in advance, the Council had agreed to revert 
to it at the present meeting. 
186. The representative of Lesotho, speaking on behalf of the LDC Group in the WTO
, said that 
the LDCs supported the contents of paragraph 2 of  the 2005 Decision, and the steps that Uganda and 
Sierra Leone had taken in conducting their prio rity needs assessment and carrying forward the 
process.  Other LDCs were in the process of pr eparing their needs assessment.  Once LDCs had 
submitted their priority needs assessments, developed country partners should live up to their pledges 
of providing the needed technical and financia l assistance in order to develop the necessary 
infrastructure.  Such infrastructure would enable LDCs to achieve the nece ssary technological base 
that would set the ground for compliance with the TRIPS Agreement. 
187. The representative of Bangladesh , supporting the statement by Lesotho, said that his 
delegation was committed to the multilateral trading sy stem as provided by the Agreement.  Adequate 
technical and financial cooperation was vital to he lp LDCs to implement the TRIPS Agreement.  The 
economic, financial and administrative constraint s faced by LDCs, including Bangladesh, had not 
changed and there continued to be need for flexibili ty to create a viable tech nological base.  At the 
Maseru Conference, LDC Ministers had urged devel oped country partners to  provide financial and 
technical assistance in response to  LDCs' needs assessments and to implement their bankable projects.  IP/C/M/58 
Page 36  
 
  He thanked Uganda and Sierra Le one for having submitted their need s assessments and informed that 
assessments by other LDCs were in the pipeline.  He  drew Members' attenti on to paragraphs 3 and 4 
of the 2005 Decision and said that developed countr y Members should provide technical and financial 
cooperation in favour of LDCs as per Article 67 of the Agreement, with a special reference to 
paragraph 2 of the 2005 Decision. 
188. He thanked the developed country partners, especially the European  Communities, for the 
funding of the EC-Bangladesh IPR Project under WI PO.  The implementation of the Agreement had 
development implications and the provision of technical assistance should not be linked to the 
compliance with the Agreement.  He underlined the importance of flexibilities to allow countries, 
especially LDCs, to promote their social policies and interests.  Given past experiences, he said that a 
clear plan detailing the nature and type of techni cal and financial assistance to be provided to LDCs 
should be drawn up by the membership. 
189. The representative of the United States
 said that his delegation was available to discuss the 
details of the reports with those Members who might have questions or feedback with respect to the 
submission of  annual reports.  He further said that his delegation deemed the communication with 
LDCs to be a valuable way of refining and impr oving its activities in connection to the technical 
cooperation obligation.  The workshop held on the pr evious day had proved very useful in providing 
concrete indications from individual LDCs on how they perceived their needs as they moved to 
implement the Agreement.  He looked forward to continuing the engagement with those LDCs which 
had already provided needs assessments and to recei ving additional such assessments in due course. 
190. The representative of Sierra Leone  supported the statement made by Lesotho.  Encouraged by 
developed country Members and the WTO Secretariat and by Uganda's experi ence, Sierra Leone had 
developed its initial communication into a modest in itial trial technical assistance project, so as to 
enable it to take steps to implement the TRIPS Ag reement.  This document, entitled "IP for Sierra 
Leone Project", identified four clusters:  (i) update  of the policy, legal and regulative framework;  
(ii) increasing awareness and improving education;  (iii) administration;  and (iv) capability and 
enforcement.  In principle, these clusters aimed at ensuring compliance with the Agreement so that 
Sierra Leone could use the Agreement to foster its  economic growth and development.  The project 
document also dealt with project management  and implementation mechanisms, as well as 
governance, monitoring, review and evaluation of proj ects.  Sierra Leone was keen to set up a project 
implementation unit and requested financial assistance from developed country partners to do so.  It 
was the expectation of Sierra Leona that the proj ect would commence on or before 1 June 2009, with 
a lifespan of two years and a total cost of US$1. 4 million.  He requested the Chair to use his good 
offices to set up consultations with developed count ry Members, WIPO and UNCTAD with a view to 
securing technical and financial assistance for the implementation of the project. 
191. The representative of the European Communities  said that his delegation was ready to look at 
the documents submitted by Sierra Leone and Uganda  in a positive spirit.  Regarding the submission 
of Uganda, his delegation had agr eed to support many of the activiti es identified by Uganda in the 
areas of IP regulation, administration, enforcemen t and other relevant areas, and several activities 
were being launched.  His delegati on would participate in the meeting on this topic scheduled for the 
following day with the main donors.  He encouraged  all developed country Members to contribute to 
this important process and said that his delega tion was ready to consider any new submission on 
priority needs coming from other LDC Members. 
192. The representative of Uganda  congratulated Sierra Leone for its revised document.  He 
thanked the European Communities and the Czec h Republic for having already expressed their 
interest in funding parts of Uganda's projects, and requested other donors to join the European Communities and to ensure that the implementation process got started.  Uganda still needed support 
for its implementation unit.  IP/C/M/58 
 Page 37 
 
 
  193. The representative of Brazil  recalled that, at the previous session, his delegation had presented 
an advance copy of the communication introduci ng to the Council "Cluster A" of the WIPO 
Development Agenda (IP/C/W/513).  The WIPO  Committee on Development and Intellectual 
Property (CDIP) had begun the im plementation process of the 45 agreed recommendations contained 
in the WIPO Development Agenda.  Cluster A dea lt with technical assistance and capacity building, 
comprising a range of principles and activities aimed at promoting effective flow of technical 
assistance to developing and least-developed coun tries.  He understood that, under Cluster A, 
technical assistance should be seen as:  (i) de velopment oriented;  (ii) demand driven;  
(iii) transparent;  and (iv) must take into account the priorities and special needs of developing countries.  Looking at Article 67 of the TRIPS Agre ement, his delegation expected the TRIPS Council 
to take into account the 14 recommendations of WIPO, which his delegation considered to be relevant 
points of reference to enlighten the work carried out  by the Council, either on Article 67 or in another 
area. 
194. The representative of China
 expressed his appreciation of the document submitted by Brazil 
and said that technical assistance and capacity build ing should not be limited to the implementation of 
the TRIPS Agreement, but instead should focus on how to benefit from the rights resulting from the 
Agreement and prevent abuses of IP rights.  Only  appropriate objectives could lead to right and 
effective activities from which the developing  country Members could get real benefits. 
195. The representative of the United States  welcomed Brazil's continuing interest in technical 
cooperation and took note of Brazil's paper concer ning the CDIP and the recommendations that it had 
been given the task of implementing.  His delega tion had been highly involved in the work of the 
CDIP and would continue to be so in order to contribute to continuous successful work.  The CDIP 
had had two meetings so far and was still in its form ative stage, working with the WIPO Secretariat to 
establish proper and necessary steps to be taken to  implement each of the adopted recommendations, 
including programme and budgetary issues related to their implementation.  However, many of the 
recommendations did not make sense outside WIPO as they expressly concerned its responsibilities, 
capabilities and resources.  It was inappropriate to  assume that those recommendations could apply 
outside of the functioning of the CDIP.  While individual WTO Members and the TRIPS Council could take into account the recommendations, hi s delegation was not ready to pursue their 
institutionalization within the TRIPS Council. 
196. The representative of Argentina
 welcomed document IP/C/W/513 and said that the WIPO 
Development Agenda was extremely important and his delegation had pa rticipated in the negotiations 
that had led to it. 
197. The representative of Ecuador , supporting the statements by Brazil and Argentina, said that 
his delegation had also actively participated  in these negotiations and believed that the 
recommendations should be ta ken into consideration. 
198. The representative of Egypt  said that the relevant recommendations should be borne in mind 
when discussing technical assistance and capacity building, since they provided useful guiding 
principles. 
199. The representative of Canada  thanked Brazil for its proposal and said that his delegation was 
committed to implementing the Development Age nda at WIPO, including its recommendations under 
Cluster A, by mainstreaming the development dimens ion into all of the organization's activities.  
Although linkages could be drawn between the Development Agenda and the Article 67 process, he 
was of the view that WIPO's efforts in this sense were complementary and should not form the basis 
of the consideration of issues related to technical assistance and capacity building under Article 67 of 
the TRIPS Agreement.  He reitera ted Canada's commitment under the WTO and WIPO with regard to IP/C/M/58 
Page 38  
 
  these issues and believed that the two Organizations should continue to work collaboratively on these 
matters. 
200. The Chairman
 said that, since some of the informat ion provided for the annual review had 
been received only very recently, and most of it was, so far, available only in its original language, it 
was his intention to provide Members an opportunity  at the next meeting to make further comments 
on the information submitted for this meeting that they might not yet have been able to study.  He also 
encouraged other LDC Members to provide info rmation on their individual priority needs for 
technical and financial cooperation. 
201. The Council took note  of the statements made. 
N. INFORMATION ON RELEVANT DEVELOPMENTS ELSEWHERE IN THE WTO 
202. The Chairman  said that the Republic of Cape Verde had become the 153rd Member of the 
WTO on 23 July 2008.  In paragraph 246 of the Report of the Working Party on the Accession of Cape Verde (WT/ACC/CPV/30), the representative of Cape Verde had confirme d that it would apply 
the TRIPS Agreement by no later than 1 January 20 13, according to an action plan contained in the 
Report and with the understanding that, for the obliga tions covered by Sections 5 and 7 of Part II of 
the TRIPS Agreement or to enforce rights provide d for under these Sections, Cape Verde would apply 
the TRIPS Agreement no later than 1 January 2016, in  light of paragraph 7 of the Doha Declaration 
on the TRIPS Agreement and Public Health.  He a dded that further details could be found in the 
Report.  This commitment had been incorporated in to paragraph 2 of the Protocol of Accession of the 
Republic of Cape Verde (WT/L/715). 
203. The Council took note
 of the information provided. 
O. OBSERVER STATUS FOR INTERNATIONAL INTERGOVERNMENTAL ORGANIZATIONS  
204. The Chairman  said that there were 17 pending requests for observer status in the TRIPS 
Council.  A list of these requests was contained in document IP/C/W/52/Rev.11.  Since the Council's 
meeting in June, the Executive Secretary of the s ecretariat of the Convention on Biological Diversity, 
in his letter to the Director-General dated 3 July  2008, had renewed the application for accreditation 
of the CBD secretariat as an observer in the TRIPS Council. 
205. He recalled that, at its last meeting, the Council had requested the Chairman to hold 
consultations on the request for observer status fro m the CBD secretariat.  He informed the Council 
that he had consulted with tho se delegations who in the past had had some difficulty in granting 
observer status to the CBD secretariat.  The situa tion continued to be, in essence, as reported by his 
predecessor at the Council's meeting in March.  One of these delegations believed that, without 
prejudice to its position regarding the issue of perman ent observer status, it might be possible to make 
progress in this particular case following the mode l used in the Special Session of the Committee on 
Trade and Environment and the Negotiating Group on Trade Facilitation, namely by inviting the CBD 
secretariat as an ad hoc  invitee on a meeting-by-meeting basi s.  However, another delegation 
continued to have concerns on the grounds that an observer should have a broad interest in the TRIPS 
Agreement not only limited to some particular issu es and that the broader question about observership 
remained unresolved.  He said that, therefore, it did not seem possible to make progress on this matter 
at that stage.  However, he stood ready to conti nue his consultations, as requested by one delegation 
that he had consulted. 
206. The representative of India  said that his delegation appreciated the efforts made by the 
Chairman and his predecessor in finding a soluti on to the long pending requests for observer status 
from the secretariat of the CBD.  He reiterated the concerns his delegation had expressed at the  IP/C/M/58 
 Page 39 
 
 
  previous Council meeting.  While he was aware of  the list of 17 pending requests, he felt that the 
CBD presented a special case due to its direct releva nce to the issues being discussed in the Council.  
Members were engaged in the Council and elsewhere  in the WTO in discussions that had a direct 
relationship with the CBD, including under three permanent items on the Council's agenda, one of 
which was the "Relationship between the TRI PS Agreement and the Convention on Biological 
Diversity".  He agreed with those delegations th at had said that there was a need for coherence 
between the work on CBD-related issues being carried out in several organizations, and that the CBD 
Secretariat's presence at the Council would be helpful in this regard.  At Doha, Ministers had recognized the importance of granting observer status  to MEA secretariats with a view to enhancing 
mutual supportiveness between trade and environment (p ara. 30(ii)).  He said that about 80 Members 
had co-sponsored the disclosure proposal which s ought to enhance mutual supportiveness between the 
TRIPS Agreement and the CBD.  He felt that the re quest by the CBD secretariat had to be decided 
positively and expeditiously.  In the meantime, an ad hoc  invitation should be extended to the CBD 
secretariat, for which there were several precedents in the WTO.  He requested that the Chairman 
continue his consultations w ith the relevant Members. 
207. The representative of Ecuador
 supported the request from the CBD secretariat.  A number of 
the Council's regular agenda items we re relevant in this respect, namely the review of the provisions 
of Article 27.3(b), the relationship between TR IPS and the CBD, and the protection of traditional 
knowledge and folklore.  He appealed to Members, specifically those who were the most reticent in 
approving the request from the CBD secretariat, to  move forward in a constructive dialogue that 
would enable them, at least, to invite it to the Council's regular meetings on an ad hoc basis, that was 
to say, on a meeting-by-meeting basis, until Member s had definitively resolved this issue.  He 
requested that the Chair continue his consultations. 
208. The representative of Brazil  said that he believed that the CBD secretariat would have a very 
useful role to play as an observer to the Council, si nce one of the most relevant agenda items was the 
relationship between the TRIPS Agreement and the CBD.  For this reason, it would be in the interest 
of every Member to grant it observer status.  At the Council's previous meetings, the possibility of 
conferring the CDB secretariat ad hoc  observer status had been raised as a compromise to pull 
Members out of the present impasse.  He requested that the Chair continue his consultations in order 
to find a satisfactory solution to this matter. 
209. In the light of the requests made, the Chairman  proposed that he continue his consultations on 
the request for observer status received from the CBD secretariat. 
210. The Council took note  of the statements made and so agreed . 
P. ANNUAL REPORT TO THE GENERAL COUNCIL  
211. The Chairman  said that the draft Annual Report of the Council had been circulated in 
document JOB(08)/106.  He suggested that the Secret ariat be requested to update the draft to reflect 
the discussions at the present meeting and to fax th e revised draft to Members, who would have one 
week to comment on the updated parts of the dr aft report once it had been circulated by the 
Secretariat. 
212. The Council so agreed .2 
                                                      
2 The Annual Report (2008) of the Council for TR IPS was subsequently circulated as document 
IP/C/51. IP/C/M/58 
Page 40  
 
  Q. O
THER BUSINESS  
Dates of the Council's meetings in 2009  
213. The Chairman suggested that the Council ag ree on the following dates for its meetings 
in 2009:  Tuesday and Wednesday, 3 and 4 March;  Monday and Tuesday, 8 and 9 June;  and Tuesday and Wednesday, 27 and 28 October. 
214. The Council so agreed
. 
 
__________