RESTRICTED  WORLD TRADE  
ORGANIZATION  IP/C/M/53 
22 March 2007 
 (07-1217) 
Council for Trade-Related Aspects 
of Intellectual Property Rights  
 
 
 
MINUTES OF MEETING 
 
Held in the Centre William Rappard on 13 February 2007  
 
Chairman:  Ambassador C. Trevor Clarke (Barbados) 
 
 
 The present document contains the record of  the discussion which took place during the 
TRIPS Council meeting held on 13 February 2007. 
 
 Subjects discussed
         P a g e  n o s .  
 
A. NOTIFICATIONS UNDER PROVISIONS OF THE AGREEMENT .........................................................3  
B. REVIEWS OF NATIONAL IMPLEMENTING LEGISLATION ..............................................................4  
C. REVIEW OF THE PROVISIONS OF ARTICLE 27.3(B) .....................................................................6  
D. RELATIONSHIP BETWEEN THE TRIPS  AGREEMENT AND THE CONVENTION ON 
BIOLOGICAL DIVERSITY .............................................................................................................6  
E. PROTECTION OF TRADITIONAL KNOWLEDGE AND FOLKLORE ...................................................6  
F. NON-VIOLATION AND SITUATION COMPLAINTS ......................................................................11  
G. REVIEW OF THE IMPLEMENTATION OF THE AGREEMENT UNDER ARTICLE 71.1 ......................12  
H. REVIEW OF THE APPLICATION OF THE PROVISIONS OF THE SECTION ON 
GEOGRAPHICAL INDICATIONS UNDER ARTICLE 24.2 ...............................................................12  
I. FOLLOW -UP TO THE FOURTH ANNUAL REVIEW UNDER PARAGRAPH 2 OF THE 
DECISION ON THE IMPLEMENTATION OF ARTICLE 66.2  OF THE TRIPS  AGREEMENT ...............12  
J. TECHNICAL COOPERATION AND CAPACITY BUILDING .............................................................12  
K. ENFORCEMENT OF INTELLECTUAL PROPERTY RIGHTS (PART III OF THE AGREEMENT ) 
-COMMUNICATIONS FROM THE UNITED STATES (IP/C/W/488)................................................13  
L. INFORMATION ON RELEVANT DEVELOPMENTS ELSEWHERE IN THE WTO ..............................19  
M. OBSERVER STATUS FOR INTERNATIONAL INTERGOVERNMENTAL ORGANIZATIONS ...............20  
N. OTHER BUSINESS ......................................................................................................................20  
O. ELECTION OF THE CHAIRPERSON ..............................................................................................21  
 IP/C/M/53 
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  1. In proposing the agenda for adoption, the Chairman
 said that item K on "Enforcement of 
Intellectual Property Rights (Part III of the Agre ement) – Communication from the United States 
(IP/C/W/488)" had been put on the proposed agenda at the written request of the delegation of the 
United States, dated 26 January 2007.  He proposed  that the Council adopt the agenda as proposed. 
2. The representative of China  said that similar proposals to that of the United States had been 
put on the agendas of the last three meetings of th e Council in the year 2006.  All of these had been 
challenged by a number of developing country Me mbers on the basis of the following reasons.  
Firstly, Article 1.1 of the TRIPS Agreement provide d that "Members shall be free to determine the 
appropriate method of implementing the provisions of this Agreement within their own legal system 
and practice".  Therefore, enforcem ent measures should be adopted main ly at the national level.  Most 
developing country Members had devoted enormous administrative and judicial resources to IPR 
enforcement with significant progress in this fi eld, and these efforts were still continuing.  
3. Secondly, multilateral exchange of informati on among countries or groups of countries on 
enforcement of IPRs, including border measures, had been taking place either in WIPO or in the 
WCO.  Bilateral cooperation, including the excha nge of information and views, had also been 
conducted in the spirit of Article 69 of the Agreemen t which had been quoted by the United States in 
its paper.  The inclusion of proposals such as those put forward by the United States and previously by other developed country Members for any discussi on in the Council would therefore duplicate the 
work that was already being carried out in the rele vant international organi zations referred to.  It 
would not add any value and would therefore waste the resources of Members and the Organization.  
4. Thirdly, enforcement of IPRs was not an isol ated issue and could not be treated separately 
from the basic objectives and principles for the im plementation of the Agreement as a whole.  
Articles 7 and 8 of the Agreement had laid dow n provisions on the relationship between the 
appropriate protection of IPRs and the economic and social development needs and objectives of 
developing country Members, including the transfer  of technology.  However, it was China's view 
that the specific provisions in and the implementati on of the Agreement with regard to the protection 
of IPRs as emphasized by the developed country Members on the one hand and the developmental 
aspects as requested by the developing country Me mbers on the other were out of balance.  Any 
substantive discussion in the Council on such proposals as put forward by the United States and other developed country Members on enforcement would only  further the imbalance of interests, as well as 
of rights and obligations between developed and deve loping country Members already in existence.  It 
would also further divert Members' attenti on from the Council's work in addressing urgent 
development issues such as the effective implem entation of the 2003 General Council Decision on 
TRIPS and Public Health, the debate on the rela tionship between TRIPS and CBD, the protection of 
traditional knowledge and folklore, and the needs of developing country Members, in particular 
LDCs, for technical assistance and capacity building and transfer of technology.  
5. Based upon this reasoning, China continued to be lieve firmly that the TRIPS Council was not 
the right forum for any substantive discussion of  proposals such as that put forward by the 
United States.  China was therefore not in favour of and did not support the inclusion of Item K on enforcement on the agenda of the Council's present meeting.  Having said this, his delegation wished 
to listen to any comments by other Members and would respect any decision the Council might take 
with regard to the agenda, including its possible ad option.  China would do so only for the sake of a 
smooth procedural conduct of the meeting and on the understanding that this would not prejudice the 
fact that this was only a temporary item on the agenda.  
6. The representative of India
 said that, while his delegation could accept the agenda as 
proposed in WTO/AIR/2952/Rev.1, he wished to clar ify that this acceptance of the inclusion of 
agenda item K should not in any wa y be construed as its acceptance of the inclusion of that item on  IP/C/M/53 
 Page 3 
 
 
  the permanent agenda of the TRIPS Council or of its willingness to engage substantively on issues 
raised by Members under this agenda item. 
7. The representative of Argentina  said that it was the understandi ng of his delegation that the 
item was not a permanent item on the agenda of the TRIPS Council. 
8. The representative of Cuba  agreed with the statements made by China, Argentina and India 
and the criteria set out therein. 
9. The representative of South Africa  agreed with the statements made by India and others.  
While his delegation would accept the agenda as proposed, seeing that item K was only a temporary item on the agenda, it also questioned the value of placing this item on the agenda of the Council, 
given that the content of the paper was very tec hnical and referred to customs procedures.  His 
delegation consisted of intellectual property offici als and would not have the capacity to engage in 
any discussion on this paper without asking its customs officials to attend.  
10. The Council took note
 of the statements made and adopted  the agenda as proposed. 
A. NOTIFICATIONS UNDER PROVISIONS OF THE AGREEMENT  
11. The Chairman  informed the Council that, since its meeting in October, it had received a 
number of supplements and updates to earlier notif ications of laws and regulations notified under 
Article 63.3 of the Agreement.  Slovenia had notif ied consolidated texts of  its amended Industrial 
Property Act, Copyright and Related Rights Act, Act on the Protection of Topographies of Integrated Circuits and Decree on the Fees of the Slovenia Intellectual Property Office;  Jamaica had provided information on its plans concerning its legislati on on patents, industrial designs and geographical 
indications, including on its work to impl ement the "paragraph 6" waivers;    the 
European Commission had notified two Council Re gulations concerning customs action against 
infringing goods and a Directive on the enforcemen t of intellectual property rights;  Canada had 
notified two regulations amending the Food and Drug Regulations and the Patented Medicines 
Regulations;  and Saudi Arabia ha d notified the Procedural Rules before the Board of Grievances and 
a corrected text of the Implementing Regulations of  Copyright Law.  These notifications were being 
circulated in the IP/N/1/- series of documents.  In addition, Saudi Arabia had provided its responses to 
the Checklist of Issues on Enforcement, which had been circulated in the IP/N/6/- series of 
documents.   
12. He recalled that, among the Members whose trans itional period under Artic le 65.2 or 65.3 had 
expired on 1 January 2000 or who had acceded to the WTO, there still remained two who had not yet 
submitted any notification concerning their implementi ng legislation, namely Saint Kitts and Nevis;  
and Saint Vincent and the Grenadines.  The Secret ariat had been in contact with the respective 
delegations in order to assist in the matter.  He urged those Members whose initial notifications 
remained incomplete to submit the outstanding mate rial without delay, a nd reminded other Members 
of their obligation to notify any subsequent amendm ents of their laws 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 "Implementation of Paragraph 6 of the 
Doha Declaration on the TRIPS Agreement and Pub lic Health" and who had not yet notified such 
changes to the Council to do so. 
13. With regard to notifications of contact points under Article 69, he said that, since the 
Council's meeting in October, updates to contact poi nts notified earlier had been received from India 
and Australia.  These notifications were being circul ated in an addendum to document IP/N/3/Rev.9.  
To date, 122 Members had notified contact points under Article 69. IP/C/M/53 
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  14. The representative of Canada
 updated the Council on Canada's progress in the review of its 
Access to Medicines legislation that he had mentione d at the Council's last meeting.  The first phase 
of this process had now been completed.  On 24 November 2006, Canada  had published a paper 
calling for comments on its legislation, focusing on how the Canadian Access to Medicines regime 
might better meet its humanitarian objective of f acilitating access to medicines in a developing world 
while respecting international trade obligations and maintaining the integrity of the patent system.  
This paper, as well as the approximately 30 submi ssions received in response, was available at the 
website www.camr.gc.ca.  After the review of these  submissions, Canada woul d consider whether any 
changes to its legislation or regulations were n ecessary and would inform the Council accordingly.  
This review process did not prevent interested par ties from using the Access to Medicines legislation 
and Canada remained committed to improving ac cess to needed medicines in developing and 
least-developed countries.  It was continuing to seek opportunities to explain to eligible importing countries and manufacturers how they could take advantage of this system. 
15. The representative of China
 thanked Canada for the inform ation provided and said that his 
delegation would welcome further discussion on public health and access to medicines. 
16. The Council took note  of the statements made. 
B. REVIEWS OF NATIONAL IMPLEMENTING LEGISLATION  
(i) Review of legislation of Saudi Arabia 
17. The Chairman  recalled that, at its meeting in March 2006, the Council had agreed to review 
the legislation of Saudi Arabia, a newly acceded Member, at the present meeting.  Saudi Arabia's notification of its TRIPS laws and regulations had been circulated in document IP/N/1/SAU/1, and the 
texts of the notified laws in the relevant law seri es of documents.  Its responses to the Checklist of 
Issues on Enforcement had been circulated in IP/N /6/SAU/1.  Saudi Arabia had received questions 
from Switzerland and the United States which had been  circulated in documents IP/C/W/486 and 487.  
Its responses to these questions had been circulated in document IP/C/W/489. 
18. In accordance with the standard proce dures, the delegation of Saudi Arabia
 provided a brief 
introductory overview of the structure of its legisl ation in the areas covered by the TRIPS Agreement 
and of the changes that it had had to bring about in order to make the legislation compatible with the 
Agreement.1 
19. The representative of China  thanked Saudi Arabia for its answ ers to questions posed to it.  
Like Saudi Arabia, China had implemented the TRIPS Agreement upon its accession to the WTO.  Without a transitional period, this had not been an easy task for China and his delegation could 
appreciate the efforts undertaken by Saudi Arabia .  After continuous hard work over the past 
five years, China had established a fairly compre hensive and internationally well-regarded legal 
system for IPR protection and had adopted a series of  effective measures to reinforce the protection of 
IPRs.  However, during the efforts it had undertaken  in this field, China had realized that the 
improvements of IPR protection could not be acco mplished overnight.  It correlated with the 
development level of the economy, science and technology and needed joint efforts by the 
government, enterprises and the general public. 
20. The representative of Switzerland
 commended Saudi Arabia for its efforts to strengthen IPR 
protection and its establishment of a new IPR regime.  This was an impressive achievement.  
                                                      
1 The record of the introductory statement as well as the questions put to it and the responses given 
have been circulated in a document with the following symbols:  IP/Q/SAU/1, IP/Q2/SAU/1, IP/Q3/SAU/1 and 
IP/Q4/SAU/1.  IP/C/M/53 
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  Saudi Arabia was also to be commended for the comprehensive measures undertaken to implement 
the TRIPS Agreement at the national level and for redoubling efforts to enforce IPRs.  His delegation 
agreed that national legislation was of little value if it was not enforced accordingly.  He thanked 
Saudi Arabia for its responses to the questions posed by Switzerland.  His delegation would examine the answers carefully and in detail and would pose an y follow-up questions to Saudi Arabia before the 
next TRIPS Council. 
21. The representative of the United States
 thanked Saudi Arabia for its extensive work in 
preparation of this review, the considerable effort s made to improve its legislation in accordance with 
the TRIPS Agreement and the enhancement of its en forcement activities that were so critical to the 
effective implementation of the Agreement.  His delegation appreciated the written responses received 
to its questions.  While it did not have detailed follow-up questions at  this time, his delegation would 
be interested in receiving any new information and data, as it became available, with respect to the 
collection of data on law enforcement activities in the area of intellectual property rights, as well as  
regarding transparency in the procedures of the Violations Review Committee, in particular the 
establishment of the so-called "electronic gate" fo r providing information on the activities of that 
committee to the public. 
22. The representative of Saudi Arabia  said that his delegation was willing to provide any further 
information and responses to any furthe r questions as requested by Members. 
23. The Chairman  proposed that the review of the legisl ation of Saudi Arabia be deleted from the 
agenda on the understanding that an y delegation could revert to any matter stemming from this review 
at any time.  
24. The Council so agreed . 
(ii) Follow-up to reviews already undertaken 
25. The Chairman  said that, with regard to the reviews of national implementing legislation that 
had been initiated at the Council's meetings sin ce April 2001, eight reviews still remained on the 
Council's agenda.  These reviews concerned Cuba;  Fiji;  Grenada;  Mauritius;  Saint Kitts and Nevis;  
Saint Vincent and the Grenadines;  Suriname;  and Swaziland.   
26. The representative of Cuba  said that she expected four draft bills to be adopted by the end of 
March 2007, at which time her dele gation would hope to be able to respond to all the pending 
questions. 
27. The representative of Swaziland  said that her country was currently in the process of 
finalizing its responses to the questions posed to it  and was hoping to circulate these responses before 
the next meeting. 
28. The representative of Mauritius  said that his Government was close to finishing the answers 
and intended to provide them before the next meeting. 
29. The representative of St. Kitts and Nevis  said that his delegation had been in contact with the 
Secretariat and would provide responses to the quest ions posed as soon as this information had been 
compiled. 
30. The Chairman  said that a number of questions had al so been raised with regard to the 
implementing legislation of certa in Members whose reviews had al ready been deleted from the 
Council's agenda on the understanding that any dele gation should feel free to revert to any matter 
stemming from the review at any time.  These Memb ers were Dominica, Gabon, Ghana and Guyana. IP/C/M/53 
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  31. He urged the delegations con cerned to provide the outstanding material as soon as possible, 
so as to allow the Council to complete the follow-up to these reviews. 
32. The Council took note
 of the statements made and agreed  to revert to the matter at its next 
meeting.  
C. REVIEW OF THE PROVISIONS OF ARTICLE 27.3(B) 
D. RELATIONSHIP BETWEEN THE TRIPS  AGREEMENT AND THE CONVENTION ON BIOLOGICAL 
DIVERSITY  
E. PROTECTION OF TRADITIONAL KNOWLEDGE AND FOLKLORE  
33. The Chairman  recalled that, at its meeting in March 2006, the Council had agreed to maintain 
its present method of work on these matters, and to  keep this method under review to assess whether 
any change might prove appropriate in the light of  developments.  He therefore suggested that the 
Council continue its past practice of discussing these  three agenda items together on the basis of the 
contributions by Members.  He recalled that, at  its meeting in Octobe r 2006, the Council had had 
before it a new communication from Peru (IP/C/W/ 484) that provided comments in relation to an 
earlier communication from the United States in document IP/C/W/469.   
34. The representative of Brazil  said that his delegation's position on these three items remained 
unchanged.  He said that a mandatory disclosure re quirement which required patent applicants to 
reveal the origin of genetic resources, as well as to provide evidence of compliance with national 
access and benefit sharing regimes, would be the best way to achieve the objective of mutual 
reinforcement of the TRIPS Agreement and the CBD.  The disclosure requirement was of utmost importance for Brazil and other co-sponsors who ha d put forward a proposal for amendment of the 
TRIPS Agreement both in the regular session of  the TRIPS Council and in the context of 
consultations on outstanding implementation issues .  He suggested maintaining this issue under 
discussion in the TRIPS Council with a view to clarif ying particular technical elements or questions 
and of promoting convergence on acceptable solutions .  He said that while Members had a negotiating 
mandate to pursue this issue in the context of th e Doha negotiations, and while this issue was an 
essential element of any package that  might ensue at the end of th e Doha Round, his delegation was 
open to discussing and clarifying certain issues in the TRIPS Council. 
35. Although the disclosure requirement had been considered in other forums, it had a real 
bearing on the TRIPS Agreement.  It would give de veloping countries a sense of ownership of and 
influence on the intellectual property regime represen ted by the TRIPS Agreement.  This was because 
the concern underlying the disclosure requirement was that misappropriation of genetic resources 
occurred mostly in developing countries, where most of world's biodiverse regions were located.  
Regarding associated traditional knowledge, he said that the CBD established the objective of the 
protection of traditional knowledge as being to obtain prior informed consent and share benefits.  This 
was meant to motivate parties interested in gainin g commercial benefit through the use of traditional 
knowledge to enter into benefit-sh aring agreements with original owners of traditi onal knowledge.  
This was in line with the general objective of intellectual property laws, that is to combat 
misappropriation and to recognize and respect countries ' sovereign rights over their natural resources.  
In conclusion, he encouraged Members to make gr eat efforts to achieve c onvergence in this area for 
the benefit of developing countries.   
36. The representative of Ecuador
 said that the relationship between the TRIPS Agreement and 
the CBD was an implementation issue that should be  resolved in the Doha Round negotiations.  His 
delegation attached great importance to the disc losure proposal with the aim of promoting 
transparency in patent systems and of avoiding pir acy of genetic resources.  He said that consultations  IP/C/M/53 
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  conducted by Deputy Director-General Rufus Yerxa should be intensified in order to achieve the 
concrete result of amending the TRIPS Agreement.   
37. The representative of China  said that his delegation welcomed further discussions on the 
relationship between the TRIPS Agreement and the CBD in the TRIPS Council, which was of 
paramount importance to many Members.  Many de veloping countries possessed plenty of genetic 
resources and related traditional knowledge but, due to some constraints on their technological 
capacities, most of them were unable to make full use of these resources and knowledge for patented 
innovation.  The CBD had adopted the principles of national sovereignty, prior informed consent and 
benefit sharing which, if not integrated into th e TRIPS Agreement, would not be sufficient to 
guarantee the interest of developing countries.  The TRIPS Agreement did not extend protection to 
genetic resources and traditional knowledge, thus enc ouraging biopiracy and damaging the interests of 
many developing countries.  The proposal for the amendment of the TRIPS Agreement made by some 
developing Members was meant to enhance the mu tual supportiveness of the TRIPS Agreement and 
the CBD.  It would be the most practical and effici ent means of endowing the patent system with an 
instrument to deal with the problem of misappropr iation and biopiracy.  As a co-sponsor of document 
WT/GC/W/564/Rev.2, his delegation believed that  the draft amendment would strengthen the 
protection of genetic resources and traditional knowledge.  China, together with many developing 
Members, believed that the work under the TR IPS Council should be inte nsified and should be 
mutually supportive with informal consultations on the relationship between the TRIPS Agreement 
and the CBD, aiming at including the CBD principles in the TRIPS Agreement and ensuring that the 
source of genetic resources and traditional kn owledge obtained from developing countries was 
disclosed in patent applications.  He agreed with Brazil that this item be included in the final single 
undertaking. 
38. The representative of India  supported the statements made by Brazil, Ecuador and China.  He 
said that the TRIPS Agreement, while involving ex tensive discussions on individual property rights, 
did not try to protect community rights, which was a lacuna that India, along with several other 
biodiverse developing countries, was trying to addr ess.  The work in the TRIPS Council needed to 
focus on the proposal for an amendment of the TRIPS Agreement, and that this could complement the 
work going on in other forums.  He said that his de legation had tried to contribute to the discussion by 
responding to other Members' con cerns, and welcomed a spirit of contribution and cooperation from 
others in trying to take the negotiation forward.  This issue was not only an essential element of any 
package that could emerge from the Doha Roun d, but was certainly a critical aspect of the 
development dimension of the Doha Round.  Th e draft text of an amendment of the TRIPS 
Agreement had been put forward by a large numb er of developing countries representing a very 
diverse set of countries from different continents of the world.  In conclusion, he urged Members to 
discuss this issue in the TRIPS Council in as constr uctive a manner as possible, with a clear focus on 
the draft text of amendment of the TRIPS Agreement.   
39. The representative of Cuba  endorsed the statements made by Brazil, China, Ecuador and 
India.  She said that national legislation was not sufficient to regulate access to genetic resources and 
traditional knowledge and to prevent biopiracy and that only the proposed amendment to the TRIPS Agreement would protect developing countries'  sovereign rights over their national resources.  
Therefore, Members needed to focus on the propos ed amendment of the TRIPS Agreement and to 
step up the discussion on this issue in various forums.   
40. The representative of Thailand
 said that misappropriation of genetic resources and traditional 
knowledge had been of great concern to his Govern ment and that without adequate and effective 
protection of genetic resources and traditional knowledge at the inte rnational level the problem of 
biopiracy would continue.  A national contract-b ased system of access and benefit sharing was 
important but would not ensure effective and manda tory international enforcement.  Therefore, 
national access and benefit-sharing systems were not  a substitute for but an important and necessary IP/C/M/53 
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  complement to the proposed disclosure requirement at the international level.  As a co-sponsor of the 
proposal for amendment of the TRIPS Agreement,  his delegation believed that the disclosure 
requirement could and would adequately and eff ectively respond to existing limitations in the 
international system.  In conclusion, he urged Me mbers to move to text-based negotiations on this 
issue. 
41. The representative of Kenya
 reiterated his delegation's commitment to discussions on these 
three items in a constructive spirit within the mandate  given by the Ministers at Doha with a view of 
finding ways of interpreting and implementing the TRIPS Agreement to support the objectives of the 
CBD.  He said that, according to the proposal fo r amendment of the TRIPS Agreement, patent 
applicants seeking protection for their inventions based on the use of genetic resources and associated 
traditional knowledge were expected  to provide evidence of prior in formed consent from the source of 
the genetic material and the country of origin.  The proposed disclosure requirement was expected to 
ensure transparency as it would allow the authoriti es of countries granting access to their resources to 
keep track of patent applications based on the u se of these resources.  He said that the disclosure 
requirement would not achieve the objectives of the CBD but was expected to contribute to a solution, 
in particular to help check whether contractual arrangements were being respected.  The disclosure 
requirement would not affect the balance of right s and obligations set out in the TRIPS Agreement 
nor the rights of WTO Members.  The disclosur e requirements would not become burdensome to 
either patent offices or patent applicants as it was not the work of patent offices to verify the conditions under which genetic res ources and associated traditional knowledge had been acquired.  
The patent office was expected to check whether formal requirements had been fulfilled and whether 
the patent applicants that had declared that their patent applications were based on genetic resources 
and/or traditional knowledge had subsequently discl osed appropriate information.  The patent 
applicant was expected to submit the information that  was best known to him.  Finally, he reiterated 
that Kenya supported the proposal to amend the TRIPS Agreement to introduce an obligation to 
disclose the origin of genetic resources and traditiona l knowledge in patent applications and that such 
a disclosure obligation should form part of formal requirements for patent applicants. 
42. The representative of Pakistan
 said that, as a co-sponsor of document WT/GC/W/564/Rev.2, 
his delegation supported the statements made by Braz il, Ecuador, China, India and others.  He said 
that, in order to achieve a balanced outcome, th ere was a need to recognize the right of those 
communities that had less collective action power th an the large private intellectual property right 
owner. 
43. The representative of the United States  said that he would defer his comments on IP/C/W/484 
until the next meeting because of the absence of the Pe ruvian delegation.  He said that there was still 
disagreement in the TRIPS Council about whether the time was right to begin engaging in text-based 
discussions on the basis of the proposals that had been made by a number of Members.  He said that, as suggested by India, despite that disagreement,  Members should be working and discussing towards 
finding points of convergence that could allow them to move forward on this issue.  His delegation 
looked forward to working with other Members on that basis.   
44. The representative of Japan
 said that two issues were involved in the discussion of the 
relationship between the TRIPS Agreement and the CBD:  err oneously granted patents and 
compliance of the CBD.  These two issues should be addressed separately.  Erroneously granted patents could be addressed through the patent syst em through improved database systems for patent 
examination or utilization of other error preventi on and rectifying mechanisms.  He informed the 
Council that, as the elaboration of database systems needed technical expertise, his delegation had 
introduced a proposal for databases systems in the WIPO Intergovernmental Committee on 
Intellectual Property, Genetic Resources, Traditiona l Knowledge and Folklore (IGC) for discussion.  
In that forum, some Members had expressed thei r concerns about the misappropriation of genetic 
resources exposed by such database systems.  Such concerns would be solved by technical security  IP/C/M/53 
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  measures, such as restricting access to datab ases by allotting each patent office one access 
identification address, allowing access only for the pur pose of examination, or contriving a guiding 
principle on how to notify contents of databases to pate nt applicants.  In this regard, he said that this 
proposal needed to be further examined and concre tized, and that the TRIPS Council should take into 
account the discussion in WIPO.   
45. He said that the issue of compliance with the CBD should be addressed in a comprehensive 
and holistic way and a near-sighted solution should not  be sought.  The disclosure approach was still 
unclear in terms of definitions and scope and that there remained concerns about unreasonable 
burdens on the use of the patent system.  Therefore, his delegation was in favour of further analysis of 
existing institutions a nd national experiences. 
46. The representative of Norway  recalled that his delegation ha d made a proposal to amend the 
TRIPS Agreement in order to introduce a mandatory  obligation to disclose source and origin of 
genetic resources and traditional knowledge in patent  applications in June 2006 (IP/C/W/473).  He 
then responded to the six questions posed by Sw itzerland at the Council's previous meeting on this 
disclosure proposal. 
47. On the question of how the proposed amendmen t of the TRIPS Agreement could apply to 
international and regional patent a pplications, he said that the disclosure requirement should apply to 
all patent applications and that, consequently, relevant treaties like the WIPO Patent Cooperation 
Treaty and the Patent Law Treaty, as well as regiona l instruments, should be amended.  In cases 
where an international authority merely transmitte d patent applications to national authorities, it 
should be national patent offices rather than the international authority that would enforce the 
disclosure requirement.  Some international organizati ons that were competent to grant patents, such 
as the European Patent Office, should also be r esponsible for enforcing the disclosure requirement. 
48. Regarding the question about how Norway defi ned the concept of the "supplier country" and 
how this concept was different from the concept of the "country providing genetic resources" used in 
Article 15 of the CBD, he said that the identificati on of the country of origin was important because, 
according to the CBD, only the country of origin  or a Contracting Party that had acquired the 
resources in accordance with the CBD was competent to provide consent to access genetic resources.  
The "supplier country" would normally be either the c ountry of origin or a country that had acquired 
the resources in accordance with th e CBD.  In such cases, there would therefore be no real difference 
between the "supplier country" and "c ountry providing genetic resources". 
49. Regarding the question about what were the "s upplier countries" and the "country origin" of 
traditional knowledge and what would be the role of  the holder of traditional knowledge, he said that 
the disclosure proposal should be considered in a br oader context, taking into account discussions in 
relevant forums, such as WIPO.  The "supplier co untry" should be understood to mean the country 
from which the patent applicant received the traditio nal knowledge, which woul d often be the country 
where the traditional knowledge originated.  If the country of origin was different from the "supplier 
country", the applicant must disclose information about both countries if they were known to him.  
The role of the holder of traditional knowledge coul d not be explained in general terms and was not 
directly dealt with in the proposal.  However, the disclosure requirement would make it possible for the holder of such knowledge to learn of any app lications for patents for inventions using their 
traditional knowledge. 
50. He said that the question of who would be  the holder of traditional knowledge would be 
regulated by national laws and the answer would, therefore, differ from country to country.  
Accordingly, the proposal did not include a duty to disclose the identity of the holder. IP/C/M/53 
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  51. Regarding the question about what the patent  applicant should disclose where the "supplier 
country" was unknown to him, he said that in th e case where both the "supplier country" and the 
"country of origin" were unknown, the applicant could simply state this fact.  Nevertheless, he agreed 
that in such cases, the applican t should disclose the source of the genetic resource and that the 
proposal should be amended to cove r this situation as well.  In th is regard, his delegation was willing 
to consider whether and how the broader concept of source could be used to cover all potential cases 
bearing in mind the importance of disclosing the "supplier country", if known.   Regarding the 
question about whether the proposed sanction would apply if the patent applicant was unable to provide the required information for reasons beyond hi s control, he said that in that case the patent 
application should proceed and that  the sanction would not apply. 
52. The representative of Korea
 said that, although his delegation recognized the importance of 
preventing biopiracy and misappropriation of gene tic resources, it believed that introducing a 
disclosure requirement to the TRIPS Agreement as a condition for granting patents was not an 
appropriate solution.  He shared Japan's con cern on the undue burden imposed by the disclosure 
requirement on both patent applican ts and patent authorities.  He said that Members should have 
fact-based discussions on this issue to address all concerns.  
53. The representative of Venezuela  supported the statements made by Brazil, India, Ecuador, 
Thailand, Cuba, China, and Pakistan, saying th at the discussion on the three agenda items was 
pertinent and necessary in the TRIPS Council and that  it should aim at solving the problem faced by 
the biodiverse developing countries.  Regarding the suggestion of moving the discussion on these issues to WIPO, he said that, given that WIPO did not include the same member countries as the 
WTO and that the discussion in WIPO would be rest ricted to the countries having signed the PCT, he 
could not support this suggestion.   
54. The representative of Canada
 said that his delegation would c ontinue to engage  constructively 
in the ongoing discussions in the TRIPS Council.  He  said that Canada had been encouraged by the 
progress accomplished with respect to genetic resources at the last session of the WIPO IGC and 
looked forward to the WIPO Secretariat providing a list of options to pursue substantive work.  As 
regards the work in the TRIPS Council, he said that the best and most meaningful way to advance the 
discussion on the relationship between the TRIPS Agreement and the CBD was to engage in a 
fact-based technical discussion, with particular focu s on those who had either best practices to share 
or had experienced problems.   
55. He informed the Council that Canada had been  canvassing the views of a number of different 
groups in the context of discussions on its na tional policy on access and benefit sharing.  
Representatives of some of the industries, such as biotechnology, pharmaceuticals and agriculture, 
had expressed deep concerns about any proposals to  link the access and benefit-sharing aspects with 
the patent system and had stressed the importance of  keeping intellectual property issues separate.   
He encouraged Members to consider other mech anisms to protect biodiversity and prevent 
misappropriation of genetic resources, such as de veloping broader and more  globally accessible and 
functional prior art databases, using mutually agreed terms in material transfer agreements, licensing, 
codes of conduct and other contracts.  With regard  to proposals that Members should be moving to a 
text-based discussion, he said that Canada was not sure that there was a contradiction between the 
TRIPS Agreement and the CBD and therefore remained unconvinced of the need or the desirability to 
move in that direction at this point.  He said that  he would defer his comments on Peru's paper to the 
next meeting due to the absence of the Peruvian delegation.   
56. The representative of Colombia  said that, as a co-sponsor of document WT/GC/W/564/Rev.2, 
his delegation believed that a mandatory disclos ure requirement was the best way to enforce 
intellectual property rights of indigenous communitie s and peoples.  Respect for these rights was an 
important element of development because it w ould not only give countries a major economic  IP/C/M/53 
 Page 11 
 
 
  instrument, but give the communities incentives to ma ke use of intellectual property systems.  He 
recognized that there were alternative solutions fo r the same objectives, but, for the reasons of cost, 
efficiency, asymmetrical or insufficient inform ation, unequal negotiating ability, and lack of 
enforcement on third parties, the alternatives would not  sufficiently satisfy his delegation's interests.  
He further said that the co-sponsors of documen t WT/GC/W/564/Rev.2 had e ndeavoured to address 
other Members' concerns.  He said that the discu ssion in the TRIPS Council was complementary to 
the discussion taking place in the context of consu ltations on the implementation issues, which would 
be reviewed by General Council to adopt appropriate decisions.   
57. The representative of the European Communities  said that his delegation remained committed 
to this process in line with the mandate given by th e Ministers at Doha and confirmed at Hong Kong.  
He said that his delegation was ready to ex amine and discuss the relationship between the 
TRIPS Agreement and the CBD in a constructive spir it and find appropriate solutions.  He said that 
the European Communities had already tabled a pro posal on this issue in WIPO where, he thought, 
the discussion should be pursued.  
58. The representative of Australia  said that negotiations on amending the TRIPS Agreement 
would be premature.  However, his delegati on supported further technical discussions in the 
TRIPS Council as expressed by Brazil, China and others. 
59. The representative of Turkey  said that the Turkish legislation already contained the concept of 
prior informed consent for traditional knowledge and genetic resources.  Her delegation supported 
developing countries' position regarding the relati onship between the TRIPS Agreement and the CBD 
and believed that the introduction of the concept of  prior informed concept in the TRIPS Agreement 
would improve the TRIPS Agreement in favour of  the interests of developing countries.   
60. The representative of New Zealand  shared the concern of bot h developed and developing 
countries that genetic resources and traditional k nowledge should not be mi sappropriated and that 
appropriate mechanisms should pr ovide for equitable access and benefit sharing.  As a unique 
biodiverse country, New Zealand was in the process of  debating these issues at the national level.  To 
this end, his delegation had shared its domestic e xperience with others.  He encouraged Members to 
pursue its work through fact-based discussions in the TRIPS Council, including discussions of 
specific cases and national experiences of access and benefit-sharing systems.  He said that there was merit in discussing systems intended to improve prior art search, such as database approaches 
suggested by Japan.    
61. The Council took note
 of the statements made under these three agenda items and agreed  to 
revert to them at its next meeting.   
F. NON-VIOLATION AND SITUATION COMPLAINTS  
62. 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. 
63. 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 to share it, and also to en able the Council to consider improved ways of 
organizing its work on this matter. 
64. The Council agreed  to revert to the matter at its next meeting. IP/C/M/53 
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  G. R
EVIEW OF THE IMPLEMENTATION OF THE AGREEMENT UNDER ARTICLE 71.1   
65. No statements were made  under this agenda item. 
66. The Council agreed  to revert to the matter at its next meeting. 
H. REVIEW OF THE APPLICATION OF THE PROVISIONS OF THE SECTION ON GEOGRAPHICAL 
INDICATIONS UNDER ARTICLE 24.2 
67. The Chairman  recalled that Article 24.2 provided that the Council shall keep the application 
of the provisions of the GI Section of the Agreem ent under review.  He said that, as had been agreed 
by the Council at its last meeting, he had c ontinued his consultations on how the Council should 
organize its future work on the review.  Although th e consultations had shown that delegations' views 
were still divided, there had been some evidence  of common thinking.  In the light of these 
consultations, it appeared that Members still needed mo re time to reflect on the matter.  He therefore 
suggested that his successor hold further c onsultations on the matter in due course. 
68. He urged those delegations that had not yet pr ovided responses to the Checklist of Questions 
(document IP/C/13 and Add.1) to do so.  He also  said that those Members that had already provided 
responses could provide updates to the extent to wh ich there had been any significant changes to the 
way they provided protection to geographical indications. 
69. The Council agreed  to proceed as suggested by the Chair. 
I. FOLLOW -UP TO THE FOURTH ANNUAL REVIEW UNDER PARAGRAPH 2 OF THE DECISION ON 
THE IMPLEMENTATION OF ARTICLE 66.2  OF THE TRIPS  AGREEMENT  
70. The Chairman  recalled that, at its last meeting, the Council had taken up its fourth annual 
review of developed country Members' reports on their implementation of Article 66.2 of the 
TRIPS Agreement.  In concluding that item, he had indicated that he would provide delegations with 
an opportunity at the present meeting to make furt her comments on the inform ation submitted for that 
meeting that they had not been able to study.  Given that only few least-developed country Members 
were present, he said that at the Council's next m eeting there would be a further opportunity to make 
comments on the information submitted. 
71. The Council took note  of the information provided. 
J. TECHNICAL COOPERATION AND CAPACITY BUILDING  
72. The Chairman  recalled that, at its last meeting, th e Council had taken up its  annual review of 
technical cooperation.  Given that some info rmation from Members and other intergovernmental 
organizations had been made available only a short time before the review, he offered delegations a 
further opportunity to comment on the material. 
73. He also recalled the provisions on enhanced  technical cooperation in the TRIPS Council 
Decision of 29 November 2005 on the Extension of  the Transition Period under Article 66.1 for 
Least-Developed Country Members (IP/C/40).  Para graph 2 of the Decision provided that "with a 
view to facilitating targeted technical and fina ncial cooperation programmes, all the least-developed 
country Members will provide to the Council for TRI PS, preferably by the 1 January 2008, as much 
information as possible on their individual priority needs for technical and financial cooperation in 
order to assist them taking steps necessary to impl ement the TRIPS Agreement".  Paragraphs 3 and 4 
concerned the provision of technical assistance by developed country Members and by the WTO in cooperation with WIPO and other international organizations.    IP/C/M/53 
 Page 13 
 
 
  74. As the Secretariat had previously informed the Council, the national workshops for LDCs it 
had recently organized, some of them together w ith WIPO, had included components geared towards 
the type of needs assessment foreseen in paragr aph 2 of the Decision.  Alternatively, separate 
meetings with key officials had been organized fo r this purpose in conjunction with these workshops.  
He urged LDCs interested in su ch activities under the Technical Cooperation Plan for 2007 to inform 
the Secretariat as soon as possible.  WIPO had ag reed to support such activities this year and had 
further indicated that, whenever feasible, it would take into account the need s assessments foreseen in 
paragraph 2 of the Decision in its own tec hnical cooperation activities in favour of LDCs. 
75. The representative of Bangladesh, speaking on behalf of the LDC Group in the WTO , said 
that he appreciated the actions of the Members who had generously provide d technical assistance and 
capacity building programmes for LDCs in the area of  intellectual property.  Members should bear in 
mind that the serious economic and administrative difficulties faced by LDCs had not yet been alleviated, and that these most vulnerable countri es were struggling to keep pace with rapidly 
changing technology.  Technical assistance and capac ity building programmes continued to be vital 
for LDCs, who tended not to benefit from globalization. 
76. He expressed the Group's sincere thanks to th e WTO Secretariat for organizing various IP 
workshops and other programmes in a number of LD Cs.  However, LDCs' needs surpassed what was 
being delivered to them.  Without effective and cu stomized technical assist ance and capacity building 
programmes, LDCs would not be in a position to ut ilize the extended transition period.  In order to 
enable LDCs to benefit from the fl exibility accorded to them, and to achieve a foothold in the IP field, 
the WTO Secretariat and developed country Members needed to work together.  The Group requested 
Members to increase and focus their technical assistance and capacity building programmes for 
LDCs.  In addition, it invited the Secretariat to play  a more proactive role in helping LDCs to identify 
the areas in which LDCs could utilize the extension period for building their capacity so as to help 
them to integrate meaningfully into the multilateral trading system.  Given that LDCs might need technical assistance to identify their needs in th is complex area, he welcomed the needs assessment 
activities conducted by the WTO Secretariat.  It  would help LDC governments to effectively 
formulate their plans if the Secretariat could deta il the nature and type of technical assistance that 
could be provided. 
K. E
NFORCEMENT OF INTELLECTUAL PROPERTY RIGHTS (PART III OF THE AGREEMENT ) -
COMMUNICATIONS FROM THE UNITED STATES (IP/C/W/488) 
77. The Chairman  said that this item had been put on the Council's proposed agenda at the request 
of the delegation of the United States, dated 26 January 2007.  The Council had received a 
communication from the United States entitled "Enforce ment of Intellectual Property Rights (Part III 
of the Agreement):  Experiences of Border Enforcement" (IP/C/W/488). 
78. The representative of the United States  said that, as it had indicated in the Council's recent 
meetings, his delegation supporte d a dialogue in the Council on the implementation of the 
enforcement provisions of the TRIPS Agreement and on the identification of solutions to difficulties 
in implementing those provisions.  The US objective for the present meeting was not to return to a 
discussion of how potential work on enforcement within the Council could be organized or to prejudge how this issue could evolve in the future.  Rather, his delegation wished to share briefly on 
the basis of its paper, the experience the Unite d States had gained in seeking to address certain 
challenges associated with border enforcement.  The paper was intended to serve as a resource for 
Members as they considered their own tools for e nhancing enforcement at the border, and a vehicle 
for provoking questions for discussions, particularly at  the technical level with US experts and the US 
Customs and Border Protection Service (CBP). IP/C/M/53 
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  79. The paper was divided into three parts.  Th e first provided a brief update of statistics 
regarding seizures at the border by the CBP for fiscal year 2006, which had ended a few months 
earlier.  The full set of data was available at: http://www.cbp.gov/xp/cgov/import/co mmercial_enforcement/ipr/seizure/
.  This data indicated that 
the scope of the challenge being faced globally and in the United States with respect to IPR infringing 
imports was growing at a rapid rate.  The data showed  that in the last fiscal year the value of seizures 
at the border had expanded by 66% to US$155 million.  Last year's seizures revealed that the products 
which were most likely to be subject to infringeme nt included footwear, appa rel, handbags, computers 
and other consumer electronic devices.  The last two product categories, in particular, raised concerns 
relating to consumer safety. 
80. The second and third parts of the paper concer ned relatively new methods which were being 
implemented by the CBP in an effort to enhance effective enforcement under existing legislation, and 
in particular to realize the most efficient use of li mited resources that were available for this function.  
A computerized risk modelling effort, recently under way within the CBP, represented a new technology-based method intended to help customs and border protection agents sharpen their focus 
on high-risk shipments, reduce the unproductive exam ination of low-risk shipments, and thereby 
maximize enforcement resources.  The risk m odel was a computer-based program into which a 
number of variables would be fed.  The program  would then calculate scores for indicating the 
relative risk of IPR infringement with respect to pa rticular import shipments.  The model drew on risk 
factors which had been determined through the anal ysis of the customs service to be particularly 
characteristic of IPR infringing imports, based largel y on information provided by US importers when 
goods were presented for entry into the United States.  The factors included country of origin, the port 
of entry that was being used to enter the goods in to the United States, and the product classification by 
tariff number.  Based on the input fed into it, the program would generate a statistically weighted 
score based on known risk.  This score would then be used by the US custom officers who relied on 
the output to assist in identifying particular shipme nts that would merit closer examination before 
being cleared for entry into the United States. 
81. This relatively new risk modelling effort s upplemented and enhanced existing and more 
traditional tools employed by US customs agents, such as the visual review of packaging, manual 
review of entry and manifest information, as well as leads provided by industry.  The CBP continued 
to expand the application of this methodology.  It  would be happy to provide technical assistance and 
share information with Members wishing to obtai n more information on th e design and development 
of the risk modelling program. 
82. The third element in the US submission con cerned another methodology used by the CBP, 
namely post-entry verification and audits of IPR infringing goods.  Post-entry auditing had been applied for a long time with respect to a number of aspects of US customs policy, for example, with respect to fraudulent entry, but it was only recentl y that it had been applied to the area of IPR 
infringing imports.  The CBP had provided its audit personnel with specialized training in IPRs and 
the identification of IPR infringing imports.  The training, conducted within the CBP, had benefited 
from the experience on identifying IPR infringing goods shared by privat e sector representatives. 
83. IPR post-entry verification was presently unde r way with respect to 35 importing companies 
that had been identified as being at high risk of IP R violations based on their importing history.  This 
methodology enabled customs authorities to engage w ith specific companies that had had problems or 
had themselves identified IPR infringing goods a nd help them make im provements through a 
post-entry audit process.  The auditing process invol ved the review of documentation associated with 
imports, including purchase records and product specifications, as well as of business practices and 
systems of controls to determine whether there were any systemic weaknesses within individual 
companies that might have lead to IPR violations.  Customs and border protection personnel then 
worked on an intensive basis with individua l businesses to establish stronger procedures for  IP/C/M/53 
 Page 15 
 
 
  preventing such violations.  In some cases, the CBP  had the ability and the legal authority to issue 
penalties on counterfeit goods that were uncovered in the course of conducting these audits.  The CBP 
would be happy to engage on a bila teral or plurilateral basis with a nd to provide technical assistance 
to Members who wished to obtain more info rmation on how to operate the procedures. 
84. The representative of Canada  said that the US paper was a valuable contribution to the work 
of the Council, and also particularly timely fo r Canada.  Counterfeiting and piracy were global 
problems that had implications for all Members, which went far beyond economic effects.  Canada was concerned about the increasing role played by  organized crime as well as its effects on public 
health and safety.  The implications did not only affect right holders but society as a whole.  As a 
result, Canada had embarked on a programme ai med at undertaking a major review of its IP 
enforcement regime in an effort to address today's realities.  As part of the review, Canada had begun 
to look at systems and procedures being used by other countries.  Thus, the paper provided by the 
United States was useful as it provided information on specific aspects of the US system.  The data on 
recent seizures, for example, was valuable as it  gave Canada's enforcement authorities some 
additional information on where they might wish to focus their efforts.  The US paper also outlined 
ideas for more effective use of customs resources, wh ich was of interest to Canada's administration as 
well as to many other administrations who were  faced with limited resources for combating 
counterfeiting and piracy.  Concluding that Cana da was interested in information from and 
experiences of other Members in the area of IP enforcement, he urged Members to take a constructive approach in dealing with this problem whic h had negative consequences for all societies. 
85. The representative of El Salvador
 thanked the United States for its submission, which had 
been passed on to his capital and he was waiting fo r feedback.  Recalling a seminar on enforcement 
recently held in Geneva, he said that the US paper wa s the type of document which would be useful as 
a case-study in future seminars. 
86. The representative of New Zealand,  welcoming the US contribution, said that the information 
contained therein had already spurred his colleagu es from the New Zealand customs services to seek 
further information from the United States related to the methodologies used both in risk modelling 
and post-entry verification.  Although New Zealand w as using similar techniques, it looked forward to 
learning from the experiences of the CBP.  The trend in intellectual property crime was alarming.  The 
trade in infringing goods represented a significant and increasing proportion of world trade, with 
New Zealand's experience at the border mirrori ng that of the United States.  New Zealand had 
experienced a significant increase in detentions of IP infringing goods, with customs detentions 
having increased by over 400% since July 2000.  As  a result, New Zealand looked forward to hearing 
more from the United States on a bilateral basis a bout its experiences of border enforcement in the 
context of IPRs. 
87. The representative of Australia , thanking the United States for producing a useful paper, 
noted the importance of trade in IP to the economy  and the international competitiveness of countries.  
Understanding the concerns of many countries, he supported their right to  have this issue raised in the 
Council.  IP enforcement was a priority issue for Australia, and he saw real benefits in having the 
discussion.  Australia was a net importer of IP and took the protection of IP very seriously.  Experience had shown that learning from other count ries had helped it save valuable resources in its 
own approach to protecting IP.  He believed that  the sharing of best practices made a useful 
contribution to the Council's work.  This was an approach similar to  the one that Australia had taken 
in many issues under discussion in the Council. 
88. The representative of the European Communities
 said that his delegation believed that the 
Council could and should make a positive contri bution to addressing IP enforcement problems 
through a constructive exchange of views and experiences.  He expressed his gratitude to the 
United States for sharing the methodologies develope d by the CBP.  The information was helpful and IP/C/M/53 
Page 16  
 
  could serve as a source of inspiration for other Me mbers, including the Eur opean Communities, which 
were facing similar challenges.  The EC customs statistics for 2005, published in November 2006, 
showed that counterfeiting and piracy continued to  demonstrate an alarming threat for Europe.  
Customs in Europe had seized 75 million articles in 2005 and the growth in seizures of dangerous 
products for health and safety had grown at an alar ming rate.  For the first time, 5 million counterfeit 
foodstuffs and drinks, and 500,000 counterfeit medicines had been seized. 
89. Another recent trend was that, while the sour ce of counterfeit and pirated goods remained the 
same, new transit routes were continuously being f ound.  Changes in route, an increased range of 
products and the use of the Internet made the work  of customs authorities increasingly difficult.  In 
response, the European Communities had develope d an EC anti-counterfeiting customs action plan, 
published in 2005, which contained five initiatives aimed at ensuring controls not only on exports, but 
also on transit and transhipment.  Firstly, target ed operational customs actions against counterfeiting 
were being launched at major European ports and ai rports.  Recently, one of these operations had led 
to the seizure of 90 maritime containers.  Secondl y, an anti-counterfeiting task force of top EC 
customs experts had been set up, which operated cl osely with the right holders and third country 
experts.  Thirdly, a framework of exchange of  information had been set up with a joint business-
customs working group to rationalize the transmissi on of intelligence from right holders to EC ports 
and airport authorities.  Fourthly, the EC cust oms law had been amended and a new proposal was 
soon to be introduced to integrate European risk  management framework.  And, lastly, operational 
cooperation with third country players had been fu rther strengthened.  He underlined the importance 
of exchanging intelligence on the latest and fast changing trafficking trends. 
90. He said that both developing and developed countries were suffering from the negative 
consequences of counterfeiting and piracy, particular ly for the health and safety of consumers, as well 
as the economic viability of legitimate businesses.  His delegation remained fully committed to 
exchanging views and discussing IP enforcement in  the Council and hoped that other delegations 
would show the same engagement.  It was crucial to  continue discussions in the Council on the nature 
of the problem and appropriate solutions to address it.  He reiterated that it was not his delegation's 
intention to dispute Members' freedom to de termine the appropriate means of implementing 
enforcement provisions of the TRIPS Agreement.  Its objective was to address IPR enforcement in 
good faith and in a positive spirit. 
91. The representative of Brazil
 said that it was his understanding that enforcement was not an 
item on the permanent agenda of the TRIPS Council.  It was on the agenda of the present meeting at 
the request of a Member.  He recognized that some Members might wish to draw the attention of the 
Council to issues of their particular interest, or pe rtaining to their domestic pr actices.  However, that 
must not be interpreted as recognition that the i ssue was covered under the TRIPS Agreement or that 
it should be.  Article 1.1 of the TRIPS Agreemen t, acknowledged in the US submission and the EC 
intervention, gave Members leeway to implement the provisions of the Agre ement according to their 
own methods and their own legal systems and practice.   In the same vein, Article 41.5 recognized that 
"[n]othing in this Part creates any obligation with respect to the distribution of resources as between 
enforcement of intellectual property rights and the en forcement of law in general".  This meant that 
the Agreement did not require Members to assign r esources to the enforcement of IPRs above their 
national capacity or regardless of their national pr iorities.  This was particularly relevant for 
developing countries. 
92. Duplicating efforts should be avoided at all co sts.  Implementation of border measures was a 
matter under discussion in the World Customs Organiza tion.  The exchange of national experience 
was already part of the work done in the WIPO Enforcement Committee.  Brazil had been an active 
participant in that particular committee and in  other WIPO-sponsored activities which related to 
combating trade in pirated and counterfeit goods.    IP/C/M/53 
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  93. Implementation of TRIPS must not be addressed on a piecemeal basis by only focusing on 
particular sections of the treaty.  The Agreement was subscribed to by Members in its entirety and 
should be discussed as a whole, including Articles re lated to developing countries' foremost concerns, 
which included Articles 7, 8, and 66.2.  Preserving the balance between rights and obligations within 
the Agreement was crucial.  The Agreement al ready imposed strong obligations on Members, 
particularly on developing countries. 
94. He said that he understood that the Counc il did not have any mandate to adopt 
recommendations or best practices on enforcement.  The fact that Members were constructively open to receiving information from some Members on certain national practices did not mean any recognition that these practices had any particular value or legitimacy in terms of other Members' 
national practices. 
95. He believed that there were other elements of en forcement that should be looked into, such as 
the issue referred to in Article 41.1 to the effect that procedures adopted by Members in the name of 
enforcement should be applied in such a manner as to  avoid the creation of barriers to legitimate trade 
and to provide for safeguards against their abuse.  He wished to stress this because Brazil was aware 
that there was a growing number of measures that were being adopted by certain Members in the 
name of enforcement and for the purpose of comba ting trade in counterfeit and pirated goods.  It was 
essential that all these measures passed the test of  compliance with all the WTO Agreements.  They 
should not unilaterally target trade coming from an y particular Member.  They should be fully 
compliant with the national treatment and most-favour ed-nation treatment obliga tions.  It was relevant 
to have information as to their compliance with these core principles of the WTO, and to receive 
information as to any obligation under other agreem ents that might have been subscribed to by 
Members bilaterally or regionally that might be re levant to the issue, including under Article 4(d). 
96. He recalled that Members wishing to present their national regulations, law or practices for 
scrutiny under the Agreement in the context of th e Council could do so under Article 63.1 regarding 
transparency and notification.  His understanding was that Article 69 did not provide the basis for 
holding these discussions on a permanent or regular basis, as Article 69 referred mainly to bilateral 
cooperation among Members and among their customs authorities. 
97. The representative of Japan
 said that, given the limited resources available for enforcement 
and effective border control in both developed and developing countries, the specific methods of 
border enforcement outlined in the US submission were instructive.  He said that he would appreciate 
it if the United States could submit additional info rmation on how to conduct risk modelling or IPR 
audits in practice, provide guidelines, manuals or other materials to help his delegation to better 
understand the methods employed, an d give details of the results achieved through these tools. 
98. He posed a number of questions on specific aspects of risk modelling.  What other factors 
would be considered in the risk model in additi on to the examples shown in the document, such as 
country of origin?  What kind of information could be reflected in the risk model in addition to the 
data collected through actual enforcement experi ences at customs (e.g., information from a right 
holder's application, other countries, domestic i nvestigation agencies and a post-clearance audit)? 
What were the significant differences between th e risk model for IPR and the risk models for 
terrorists, guns and drugs?  As regards IPR audits, he asked posed the following questions.  How were 
companies selected to participate in an audit for pos t-entry verification?  Was participation in an IPR 
audit compulsory or based on the voluntary coope ration of selected importing companies?  He was 
interested in an organization chart of the depart ment in charge of the IPR audit, the number of 
officials assigned to the actual investigation, and how much time was allocated for the actual 
investigation. IP/C/M/53 
Page 18  
 
  99. He said that Japan believed that the excha nge of experiences among Members could enrich 
alternatives to be considered by them.  This w ould increase the chances for each Member, taking into 
account the unique aspects of its situation, to dete rmine the most appropriate means for implementing 
enforcement-related provisions in the most efficien t manner.  In that sense, he would welcome the 
introduction of experiences and methods such as those of the United States on an ongoing basis in the 
Council so as to provide each Memb er with more alternatives. 
100. The representative of Switzerland
 said that it was appropriate for the TRIPS Council to 
discuss the issue of enforcement and exchange information on national experience.  The TRIPS Agreement contained an extensive chapter on the topic, including on border measures, which 
was the subject-matter of the US submission.  He believed that such a discussion did not prejudice 
Members' rights under Article 1.1 or any other prov ision of the Agreement, and that all Members 
would learn and mutually benefit from it.   
101. Thanking the United States for its submission, he  said that there was a constant increase of 
counterfeiting and piracy together with a growing negative impact on trade, public health and safety 
in both developing and developed economies.  This  created a particular challenge for all WTO 
Members in their implementation of the enforcement provisions of the Agreement, in particular those 
on border measurers as provided for in its Part III, Section 4.  In this regard, it was helpful to 
exchange experiences on the ways that Members ha d found useful in fulfilling this difficult task.  
Switzerland hoped to benefit from this discussion and to learn from the experience of other Members, 
and was ready to contribute their own experience to the discussion and share the lessons learnt. 
102. He believed that the US communication was drafte d in this spirit.  It presented interesting 
examples of accompanying measures and tools enab ling a more effective deployment of border 
measures.  With the rising trade flows, the work load for customs authoritie s was on the rise, whilst 
human and financial resources to accomplish the t ask often remained strained.  Thus, any tool 
assisting customs in their task would be of inter est, since it could help facilitate the task of 
implementing effective border measures at the nati onal level.  Computer-based programs allowing 
customs authorities to screen the electronic shipping data, such as the IPR risk modelling described by 
the United States, was of great help in accomplishing this task. 
103. In order to gain a better understanding of the m odel, he posed a number of questions to the 
United States concerning the exact functioning of this tool.  A great number of risk factors might need 
to be combined to get a good search result.  Th e US communication for example mentioned "entry 
port, country and tariff classification".  He wondere d if the United States could indicate whether other 
factors were taken into account.  Secondly, he wo ndered whether the United States would be in a 
position to present concrete examples which would illu strate the practical functioning of the system.  
Thirdly, he asked whether it was the CBP's intention to utilize the system also in relation to individual 
applications for border measures as filed by right ho lders, and whether the data contained in such 
applications would be fed into the new electronic system or whether it was separate from the data 
used for risk modelling. 
104. He said that the two tools presented in the US submission were examples of accompanying 
measures to gain useful information for the pur pose of making border measures more effective.  
Comprehensive information was critical for enab ling national authorities to successfully combat 
trading in counterfeit and pirated goods.  Right holde rs themselves were the principal source of such 
information.  Switzerland's experience was that  the information and documentation delivered to 
customs authorities by the right holders and the private sector was of paramount importance for 
successful border controls.  This was because right holders knew best how to recognize counterfeits of 
their products and how to distinguish them from the original.  In addition, right holders were often 
best aware of the channels of trade for infringing goo ds.  It was obvious, therefore, that a key element 
for efficient border controls was the continuous involvement and commitment of the right holders  IP/C/M/53 
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  concerned.  Right holders should file and regularly  update detailed applications for border measures 
and should be available for inspection of the susp ended goods to initiate the necessary proceedings in 
accordance with Article 55 of the Agreement. 
105. He said that there was an onus on right hold ers to invest the necessary time and resources 
needed to file their applications for border measur es as well as to cooperate closely with the customs 
authorities.  A particular challenge in this c ontext for both customs authorities and right holders 
concerned the suspension of small consignments, typically postal items containing only a small 
number of infringing goods, for example counterfeit medicines bought on the Internet.  As the amount 
of infringing goods was small, right holders were someti mes reluctant to offer help.  However, even in 
these cases, the assistance of right holders was cruc ial to determine whether the product was original 
or fake, because if the customs authority could not establish whether the goods in question infringed 
national intellectual propert y rights or not, the goods had to be released. 
106. To enhance the cooperation and flow of info rmation between right holders and government 
agencies responsible for IP and enforcement matte rs, including the customs, Switzerland had recently 
established a joint public and private anti-counterfe iting and piracy platform.  The platform hosted, 
inter alia , a working group consisting of stakeholders and the competent administrative bodies, thus 
serving as the Swiss information and coordination hub  for problems of counterfeiting and piracy. 
107. The representative of India  said that the negotiations on the TRIPS Agreement, in particular 
on its Part III on enforcement, had been long and ardu ous.  The negotiators' con cerns were reflected in 
the chapeau provisions of Section I of Part III, whic h provided in Article 41.1 that "[t]hese procedures 
shall be applied in such a manner as to avoid the cr eation of barriers to legitimate trade and to provide 
for safeguards against their abuse".  He believed th at the principle of caution dominated the provisions 
dealing with border measures.  Furthermore, the te xt of Article 41.5 provided critical insights into 
understanding the delicate balance of rights and oblig ations that had been achieved in negotiating the 
Agreement and the role of Part III.  In discussing Part III, one should bear in mind that the existing 
text reflected a balance of the interests between right holders a nd those who had been wrongfully 
accused of infringement so as not to cause obstacles to legitimate trade.  Article 41.5 took into 
account the concerns relating to the limited resource s of developing country governments to enforce 
IPR laws relative to other laws.  The text of Part III also recognized that IPRs were private rights, and 
action for their enforcement ultimately had to be taken by right holders themselves. 
108. The Council took note  of the statements made 
L. INFORMATION ON RELEVANT DEVELOPMENTS ELSEWHERE IN THE WTO 
(i) Accessions 
109. The Chairman  said that the Socialist Republic of Viet Nam had become the 150th Member of 
the WTO on 11 January 2007.  In paragraph 471 of the Report of the Working Party on the Accession 
of Viet Nam (WT/ACC/VNM/48), the representative of Viet Nam had confirmed that his Government would take all actions necessary to fully comply with all of the provisions of the TRIPS Agreement 
from the date of accession to the WTO, without reco urse to any transitional period.  This commitment 
had been incorporated in paragraph 2 of the Prot ocol on the Accession of the Socialist Republic of 
Viet Nam (WT/L/662). 
(ii) Acceptances of the TRIPS Amendment 
110. On the issue of the status of acceptances of the Protocol Amending the TRIPS Agreement that 
was done at Geneva on 6 December 2005, the Chairman
 recalled that, at its last meeting, the Council 
had requested the Secretariat to prepare a note on  the status of acceptances of the Protocol, which IP/C/M/53 
Page 20  
 
  would be updated for each meeting of the Council.  Accordingly, this note had been circulated in 
document JOB(07/)/13.  Since the Council's last m eeting, Korea had deposited its instrument of 
acceptance (WT/Let/558) on 24 January.  Furthermore, since the circulation of the note, Norway had 
accepted the Protocol on 5 February (WT/Let/563).  Thus, so far, five Members had accepted the 
Protocol.  He recalled that the Protocol was open for acceptance by Members until 1 December 2007 
or such later date as might be decided by the Mini sterial Conference.  As this date was less than 
ten months away, he encouraged Members to ensure  that necessary measures were being taken in 
their respective capitals to allow the consideration of  the acceptance in a timely fashion.  He said that 
the Secretariat would update the note on the stat us of acceptances of the Protocol periodically. 
111. The Council took note
 of the information provided. 
M. OBSERVER STATUS FOR INTERNATIONAL INTERGOVERNMENTAL ORGANIZATIONS  
112. The Chairman  said that the list of the 17 pending requests for observer status in the 
TRIPS Council by other intergovernmental organizations was contained in document 
IP/C/W/52/Rev.11.  He recalled that the Council had discussed the pending requests at its previous meetings, but had not been able to reach consensu s on any of them.  He suggested that the Council 
take note of this information and agree to re vert to this matter at its next meeting. 
113. The representative of Brazil
 said that one of the pending requests was from the Secretariat of 
the Convention on Biological Diversity.  Memb ers had been engaged in the TRIPS Council and 
elsewhere in the WTO in discussions that had a di rect relationship with the CBD, including under the 
Council's agenda item on the "Relationship between  the TRIPS Agreement and the Convention of 
Biological Diversity".  Members had also started to look closely at the relationship between WTO 
agreements and multilateral environm ental agreements (MEAs) in the context of the resumption of the 
Doha Round, specifically in the Special Session of the Committee on Trade and Environment (CTE).  Members had decided to resume discussions on environmental goods and services, while attempting 
to address paragraph 31(ii) of the Doha Ministeria l Declaration, which concerned the way in which 
the secretariats of the WTO and MEAs should coope rate.  In that context, there had been a 
considerable amount of support for providing MEA S ecretariats access to and observer status in the 
CTE and other relevant WTO committees, in partic ular in the TRIPS Council.  His delegation 
strongly supported this issue being adeq uately and expeditiously dealt with. 
114. The Council took note
 of the statements made and agreed  to revert to the matter at its next 
meeting. 
N. OTHER BUSINESS  
115. The Chairman  said that, as he had informed the Council under agenda item L, Viet Nam had 
recently acceded to the WTO and was not applying any transitional period in the area of TRIPS.  The 
Council had not yet received the required notifications of  its legislation.  He therefore suggested that 
the Secretariat contact Viet Nam concerning its notif ication obligations.  Given that after the receipt 
of the notifications a Member would need some tim e to prepare questions to  be posed to it in the 
context of its review, and then Viet Nam would need  some time to prepare its responses, it appeared 
that the most appropriate time for the review of  TRIPS implementing legislation of Viet Nam would 
be the Council's first meeting in 2008.  If the Coun cil so agreed, he suggested that the issues relating 
to the arrangement of the review, in particular th e deadline for questions and responses be dealt with 
during the next TRIPS Council meeting. 
116. The Council so agreed .  IP/C/M/53 
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  O. ELECTION OF THE CHAIRPERSON  
117. The Chairman  recalled that, at its meeting of 7 Febr uary, the General Council had taken note 
of the consensus on a slate of names of chairpersons  for WTO bodies.  On the basis of the 
understanding reached, the Chairman proposed  that the Council for TRIPS elect H. E. 
Ambassador Yonov Agah from Nigeria as its Chai rman for the coming year by acclamation. 
118. The Council so agreed . 
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