RESTRICTEDWORLD TRADE
ORGANIZATIONIP/C/M/39
21 March 2003
(03-1663)
Council for Trade-Related Aspects
of Intellectual Property Rights
MINUTES OF MEETING
Held in the Centre William Rappard
on 18-19 February 2003
Chairman:  Ambassador Eduardo Pérez Motta (Mexico)
The present document contains the record of the discussion which took place during the
TRIPS Council meeting held on 18-19 February 2003.
Subjects discussed     Page Nos
A. N OTIFICATIONS UNDER PROVISIONS OF THE AGREEMENT ........................................................6
B. F OLLOW -UP TO REVIEWS ALREADY UNDERTAKEN ..................................................................7
C. P ARAGRAPH 6 OF THE DOHA DECLARATION ON THE TRIPS A GREEMENT AND
PUBLIC HEALTH ..........................................................................................................................9
D. R EVIEW OF THE PROVISIONS OF ARTICLE 27.3(B)..................................................................18
E. R ELATIONSHIP BETWEEN THE TRIPS A GREEMENT AND THE CONVENTION ON
BIOLOGICAL DIVERSITY ...........................................................................................................21
F. P ROTECTION OF TRADITIONAL KNOWLEDGE AND FOLKLORE ................................................27
G. R EVIEW OF THE IMPLEMENTATION OF THE AGREEMENT UNDER ARTICLE 71.1....................28
H. I MPLEMENTATION OF ARTICLE 66.2.........................................................................................28
I. N ON-VIOLATION AND SITUATION COMPLAINTS ......................................................................32
J. E LECTRONIC COMMERCE ..........................................................................................................36
K. R EVIEW OF THE APPLICATION OF THE PROVISIONS OF THE SECTION ON
GEOGRAPHICAL INDICATIONS UNDER ARTICLE 24.2...............................................................37
L. T ECHNICAL COOPERATION AND CAPACITY -BUILDING ............................................................38
M. I NFORMATION ON RELEVANT DEVELOPMENTS ELSEWHERE IN THE WTO.............................38
N. O BSERVER STATUS FOR INTERNATIONAL INTERGOVERNMENTAL ORGANIZATIONS ..............38
O. O THER BUSINESS ......................................................................................................................39
P. E LECTION OF CHAIRPERSON .....................................................................................................39IP/C/M/39
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1. In proposing the agenda for adoption, the Chairman noted that the proposed agenda
(WTO/AIR/2026) did not contain items on the outstanding implementation issues in the area of
TRIPS, which had figured on the Council's agenda last year.  He recalled that the Trade Negotiations
Committee ("TNC") had discussed, at its meeting of 4 and 5 February 2003, how to carry forward the
work on outstanding implementation issues pursuant to paragraph 12(b) of the Doha MinisterialDeclaration.  At that meeting, the Chair of the TNC had recalled his concluding remarks made at the
December TNC meeting at which he had announced his intention to hold informal consultations.  The
Chair of the TNC had said that he had decided to request the assistance of the Chairs of the eight
subsidiary bodies, calling on them to act as "friends of the TNC Chair" as part of his consultations.
He had emphasized that this was not the same as referring the issues back to the respective bodies,
and said that he thought that there was an agreement that those bodies should not undertake further
work on the paragraph 12(b) issues for as long as his consultations were continuing.  The Chairs ofthe eight subsidiary bodies were to be assisted by the four Deputy Directors-General and report back
to the Chair of the TNC so as to allow him to report to the meeting of the TNC on 4 and 5 March.
The TNC had taken note of its Chair's statement.
2. The Chairman informed the Council that he had already initiated his consultations on these
matters, acting as a "friend of the TNC Chair".  He suggested that, after the Council had completed itswork on the items on the agenda, the new Chair to be elected at the end of the formal meeting, in his
capacity as a "friend of the TNC Chair", would carry out open-ended consultations on outstanding
implementation issues.  In the light of the action unde rway in the context of the TNC, it had therefore
been proposed that the Council not undertake further work on the paragraph 12(b) issues at the
present formal meeting.
3. The Chairman noted that the proposed agenda included the items on the "Review of the
provisions of Article 27.3(b)", "Relationship between the TRIPS Agreement and the Convention on
Biological Diversity" and "Protection of traditional knowledge and folklore".  The reason for this was
that the Council's mandate on these issues was not based solely on paragraph 12(b) of the Doha
Declaration, but also on paragraph 19 of that Declaration, as well as on the built-in agenda of theTRIPS Agreement.  However, in paragraph 3 of the airgram containing the agenda it was proposed
that these items, i.e. items D, E and F of the proposed agenda, should not include consideration of
outstanding implementation issues relating to these matters, given the action underway in the context
of the TNC on outstanding implementation issues.
4. The representative of Bulgaria sought further clarifications concerning the exclusion of the
outstanding implementation issues from the agenda.  The reasons for the exclusion were unclear, in
particular because some of the issues had been included in the proposed agenda, although one couldargue that this was on the basis of another mandate.  He was concerned that if the Council agreed to
suspend its work on these issues while discussions at the TNC level would be limited to procedural
matters, the result might in practice amount to option 2.  Therefore, he could not agree to suspend the
work on these issues on the grounds stated by the Chair.  However, he was willing to discuss other
possible grounds for the exclusion, for example that the Council could not discuss these mattersbecause a relevant deadline had been passed.  If the Council would so decide, then the same principle
should be applied also in the other areas of the WTO's work.  Finally, he stated that there had not been
any agreement so far either at the TNC level or at the level of the TRIPS Council to suspend work on
outstanding implementation issues.
5. The representative of Switzerland said that his delegation could agree to adopt the agenda
only if it could first be clarified what the grounds were for removing some of the outstanding
implementation issues from the Council's agenda while others still existed.  He shared the concern
expressed by Bulgaria.  At the TNC's meeting in December 2002, Members had expressed their desire
that all outstanding implementation issues be treated on an equal footing in the process of determining
how to carry forward work on them.  At the e nd of the TNC's meeting in February 2003, the TNC
Chair had concluded that further work in the relevant bodies should be suspended for the time-being,IP/C/M/39
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pending the TNC's decision on how to proceed with them.  However, there was no conclusion or
agreement to the effect that certain implementation issues should be removed from the agendas of the
relevant bodies while others would remain on the agendas.  This would risk applying differential
treatment to the various outstanding TRIPS implementation issues and prejudge the outcome of the
on-going consultations at the TNC level.
6. The Chairman referred to his earlier explanation concerning items D, E and F1.  He said that
there was no discriminatory treatment between various outstanding TRIPS implementation issues.
The items in question had additional mandates based on the Doha Declaration and the built-in agenda
of the TRIPS Agreement.  The intention was that the consideration of these three items would not
include questions relating to their implementation, and that all outstanding implementation issues
would be discussed in an informal meeting after the conclusion of the formal meeting.
7. The representative of the European Communitie s thanked the Chairman for his clarification
and expressed his appreciation of the Chair's remark at the beginning of the meeting that GI extension
should now be dealt with at the TNC level.  He said that he was fairly comfortable with this way of
proceeding and was looking forward to a fast decision to effectively negotiate GI extension and, if
there were specific requests, also other implementation-related issues.  His agreement to exclude GI
extension from the agenda did not imply any acceptance that extension was off the table.  In fact, hebelieved, having heard the Chair's explanation, that this was certainly not the intention of the Council
and that nobody was aiming at such an outcome.
8. His delegation also had a strong interest to ensure equal treatment of all implementation-
related issues.  In this regard, he was sympathetic towards the remarks made by Bulgaria and
Switzerland.  One could question whether the draft agenda really guaranteed equal treatment, andwhether items D and G on the reviews of Articles 27.3(b) and 71.1 did already offer ample scope to
discuss matters relating to the CBD and the protection of traditional knowledge and folklore.
However, given the Chair's clarification, he was prepared to work on the basis of the proposed
agenda, with the understanding that equal treatment was on everybody's mind and that the TNC was
the right level to discuss both procedure and substance as regards GI extension and additionally, ifrequested, other implementation-related issues.
9. The representative of the United States sa id that the differential treatment of those
implementations issues that overlapped with the items which were part of the Council's regular work
was reflected in paragraph 19 of the Doha Declaration.  These items were on the proposed agenda by
virtue of paragraph 19, not because they were implementation issues.  There were some overlaps with
implementation proposals in document JOB(02)/152, but, given the statement by the TNC Chair,
these implementation proposals should not be put on the agenda.  However, her delegation had alwaysmaintained, even in the TNC, that it was very flexible.  On some issues there should be continued
work in the relevant bodies.  Her delegation would at this stage accept that appropriate action be taken
by the TNC to the effect that discussions on the implementation proposal on GI extension be
continued in the TRIPS Council.  Members were in the hands of the TNC Chair to see what that
appropriate action would be, not only on this issue but on all of the other implementation issuesbefore the TRIPS Council and other bodies.  She was willing to go along with the Chair's approach
without prejudice to what the appropriate action might be in the TNC.  At the present stage, the TNC
was not in a position to engage in substance until a consensus could be found on what the approach
would be.
10. The Chairman reiterated that there was no differential treatment of outstanding TRIPS
implementation issues.  The agenda contained certain matters that were also listed as implementation
issues by virtue of the discrete mandates in paragraph 19 and the built-in agenda.  He recalled that,
prior to its first formal meeting in 2002, the Council had discussed how to structure its agenda.  Given
                                                     
1 See paragraph 4 above.IP/C/M/39
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that some issues were covered by two or three mandates, the question had been whether each such
issue should be discussed under each mandate even if it meant repetition, or whether each matter
should be discussed only once but bearing in mind all the relevant mandates.  The Council had agreed
on the latter approach.
11. Concerning the exclusion of certain implementation issues from the agenda, the representative
of Bulgaria assumed that the Council agreed that the reason for such exclusion was the general
principle that, once a deadline had been passed, the respective body needed either an agreement tocontinue with the mandate in question or to get a new mandate from a superior body like the TNC.
He could agree to the adoption of the proposed agenda on that basis.  If this was the general approach,
his delegation would also refer to it also in other bodies.  There were examples of extensions of
mandates, for example in the areas of rules of origin, special and differential treatment and the DSU
review.  He also noted that the deadline for the modalities on agriculture was 31 March 2003.
12. As to the grounds for including certain items on the agenda, he said that GI extension had a
second mandate in paragraph 18, which was analogous to paragraph 19 in relation to Article 27.3(b).
If multiple mandates were the reason for the inclusion of the items in question, then extension should
also be included on the basis of paragraph 18.
13. The representative of the United States said that the intention was not to discriminate among
implementation issues.  In her view, paragraph 18 was not analogous to paragraph 19 because it
explicitly provided that issues related to GI extension would be addressed in the TRIPS Council
pursuant to paragraph 12 of the Declaration.  Paragraph 12 in turn specified how the two types of
implementation proposals should be treated – one was under paragraph 12(a) where there was already
some treatment in existing negotiations, and the other under paragraph 12(b) concerning all of theseimplementation issues.  It was clear that GI extension appeared under paragraph 12(b) because there
had already been some deliberation in the TNC and consultations on the GIs extension
implementation issue as part of the paragraph 12(b) discussions.  On the other hand, paragraph 19
provided for a specific work programme for the issues in question and the TRIPS Council had been
proceeding that way.  Paragraph 19 indicated that these issues would be discussed as part of theCouncil's work programme and the work foreseen pursuant to paragraph 12.  This gave an indication
of the overlap, and, as far as the overlap portion was concerned, the Chair had said very clearly that
those aspects would not be discussed at the present meeting.
14. Her view on all the implementation issues was that each of them should be treated on a case-
by-case basis, and that each one might require different action.  Until the TNC Chair was able to give
some guidance on appropriate action, her delegation would not take a position on the substance of any
of them.  If there was a desire to have a discussion on GIs extension, continuing work in the relevantbody under enhanced TNC supervision may be a way of addressing some of the concerns.
15. The Chairman said that paragraph 18, which referred to paragraph 12, did not give the
Council a separate mandate to discuss GI extension.  He reiterated his proposal that the Chair of the
Council would continue consultations, as a "frie nd of the TNC Chair", on how to carry forward the
work on GI extension and other outstanding TRIPS implementation issues.  The proposed agenda was
not intended to imply that the issue of GI exte nsion would disappear, it was merely a question of
procedure.
16. The representative of Bulgaria agreed that the question was about procedure.  He was
concerned that, if the Council did not discuss the substance of GI extension and the United States
disagreed to discuss the substance at the TNC level, Members would continue spending time ondebating the mandate rather than what to do about it.  Bulgaria and many other delegations wanted all
outstanding implementation issues to be treated procedurally on an equal footing.  He said that
paragraph 19 contained exactly the same reference to paragraph 12 as paragraph 18.IP/C/M/39
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17. He said that there seemed to be no disagreement about the general principle that an item is not
proposed for the agenda if the relevant deadline has expired.  He reiterated that he was willing to go
along with this but that he would be making the same point in other bodies, including the Committee
on Agriculture.  The reason for not excluding the issue of TRIPS and public health from the agenda
after the expiration of the relevant deadline was probably that there was a tacit agreement to that
effect, but there was no such agreement on other items.  There could be only two grounds to exclude
an item from the agenda:  first, the above-mentioned general principle, and, second, an agreement to
do so.  His delegation could not agree to a proposal to exclude the items in question from the agenda.
18. The Chairman noted that paragraph 19 did not refer to paragraph 12 exclusively.  On TRIPS
and public health, he recalled that the General Council, at its meeting of 20 December 2002, had
agreed that the TRIPS Council resume its work on the matter promptly at the beginning of 2003 and
report to the General Council at its following meeting.
19. The representative of Switzerland said that the Council had decided last year to have items E
and F as separate items, grouping together the relevant mandates, rather than as sub-items under the
agenda items on the reviews of Articles 27.3(b) and 71.1 in order to avoid repetition.  Nevertheless, he
believed that the reason why they now appeared as separate agenda items was that they were
considered to be implementation issues.  He fully subscribed to the statement made by theEuropean Communities that all implementation issues should be treated equally and that all of them
were currently being dealt with at the TNC level to see how to proceed further with them and that
substantive work was for the time-being halted.  He said that his delegation was willing to proceed in
this way subject to these understandings.
20. The representative of the United States said that the Council should not prejudge what
appropriate action the TNC should take on various implementation issues either in terms of procedure
or substance.  Referring to an earlier statement, sh e said that a suggestion that there would need to be
a discussion of substance in the TNC would prejudge the process of the TNC Chair.  She was looking
forward to hearing the results of the consultations that had been held by the TRIPS Chair and those
that would be held by his successor, as well as what the TNC Chair would suggest to the TNC itself.
21. The representative of Australia suggested that the Council adopt the agenda on a provisional
basis and come back to the present discussion in the light of the consultations that the Chair's
successor would hold after the Council had completed its work on the substantive items of the agenda.
22. The Chairman said that all outstanding implementation issues had the same status and that the
Council could not prejudge what appropriate action the TNC would decide to take in respect of each
of them.  Some Members wished that the TNC take horizontal action covering all of them, while
others preferred to decide in respect of each topic based on its own merits.  Taking up outstandingTRIPS implementation issues in the Council at this  stage would amount to discriminatory treatment of
these issues.  This would be a decision to be taken by the TNC, not by the TRIPS Council.
23. The representative of Bulgaria said that he was reassured by the statement by the
United States that the Council should not prejudge the discussion whether on procedure or on
substance at the TNC level.  However, he disagreed with the suggestion that discussing substance atthe TNC level would prejudge which option Members would take, because he wished option 1 to be
considered together with other options.  He reiterated his view that paragraph 18 contained a different
mandate for GI extension, like paragraph 19 contained a different mandate for certain other
implementation issues.  In the light of the US commen ts, he said that it might be better to include the
issues referred to in paragraph 19 on the agenda in the form that was done before Doha so as to makeit clear that they were included on another basis.  He was ready to accept the Australian suggestion on
the basis of an understanding concerning the implications of deadlines he had outlined before.IP/C/M/39
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24. The representative of Argentina said that he could in principle agree to adopt the proposed
agenda, but that he was not prepared to do so on the basis of any understanding.  A delegation may
wish to adopt the agenda under a specific understa nding, but such an understanding would not be
binding for all other delegations
25. The representative of the United States said that she maintained her reading of paragraphs 18
and 19.  By adopting the proposed agenda, the Council would not prejudge the interpretation of the
provision of the Doha Declaration or any agreement.
26. The representative of Bulgaria reiterated that he could accept the agenda only on the basis of
the general principle concerning deadlines that he had outlined before, and on the basis that this would
not prejudge the outcome of the TNC discussion in respect of any of the proposed options.
27. The Chairman proposed that the Council adopt the agenda as proposed.
28. The Council so agreed.
29. The representative of the United States, referring to the statement by Bulgaria, said that she
agreed with Argentina in that, while delegations had expressed their views, the agenda had not been
adopted based on one particular delegation's understanding.  The representative of Bulgaria wondered
on what basis some items had been excluded from the agenda, if it was not on the basis of the generalprinciple he had outlined.  There had not been any agreement to exclude them.  The Chairman
suggested that delegations discuss the differing interpretations in the margins of the meeting.
A. NOTIFICATIONS UNDER PROVISIONS OF THE AGREEMENT
(i) Notifications under Article 63.2
- Notifications from Members whose transitional periods under Article 65.2 or 65.3
expired on 1 January 2000 or acceded to the WTO after that date
30. The Chairman said that the latest Secretariat note reflecting the status of the notifications
received from these Members so far had been circulated as document JOB(02)/162.  The note showed
from which of the Members in question notifications had been received by 14 November 2002.  As hehad already mentioned at the Council's meeting in November, since that date the Council had received
a notification of laws and regulations from Guyana and responses to the Checklist of Issues on
Enforcement from Argentina.  Since that meeting, Tunisia had supplemented its initial notification.
Out of the 79 Members in question, there were now six who had not yet submitted any notification
concerning their implementing legislation, namely  Egypt, Papua New Guinea, Saint Kitts and Nevis,
Saint Vincent and the Grenadines, Swaziland, and the United Arab Emirates.  Notifications from a
number of other Members were incomplete.  Recalling that pursuant to Article 63.2 of the Agreementthe notifications of the laws and regulations in question were generally due as of 1 January 2000, he
urged those Members to submit the outstanding material without delay.  He suggested that the Chair
write to any delegation concerned which was not represented at the present meeting to remind them of
the unfulfilled notification obligations.
31. The Council so agreed.
- Notifications from other Members and notifications of amendments of laws notified
earlier
32. The Chairman informed the Council that, since its previous meeting, notifications of either
new legislation or amendments to legislation notified earlier had been received from Germany;IP/C/M/39
Page 7
Hong Kong, China;  Peru;  the Slovak Republic;  and Sweden.  These notifications would be made
available in the IP/N/1/- series of documents.
(ii) Notifications under Articles 1.3 and 3.1
33. The Chairman informed the Council that, since the previous meeting, Denmark had made a
notification under Article 1.3 of the TRIPS Agreement in relation to the criteria for eligibility for
protection applicable to producers of phonograms provided under Article 5.3 of the Rome
Convention;  at the same time, it had withdrawn an earlier notification in relation to the same matter.
This notification had been circulated as document IP/N/2/DNK/2.
(iii) Notifications under Article 69
34. The Chairman informed the Council that, since the previous meeting, an updated notification
of a contact point under Article 69 of the Agreement had been received from Grenada.  This
notification was being circulated in document  IP/N/3/Rev.6/Add.4.  Ther e were now 117 Members
who had notified contact points under Article 69.
B. FOLLOW -UP TO REVIEWS ALREADY UNDERTAKEN
35. Reverting to the follow-up to the normal revi ew of China's TRIPS implementing legislation
which the Council had taken up at its meeting in September 2002 combined with the review under the
transitional review mechanism under China's Accession Protocol, the Chairman said that China had
now provided responses to almost all of the outstand ing questions that had been posed to it.  However,
there was still one outstanding question, namely question 14 posed by the delegation of Korea.
36. The representative of China said that her delegation would check the status of this outstanding
question, and, if it had not already done so, would provide a response as soon as possible.
37. The representative of Japan thanked China for providing responses to the follow-up questions
his delegation had posed, which it had just received.  However, he said that it was regrettable that the
responses had been submitted after the expiration of  the time-limit set out at the Council's meeting in
September.  Given that his delegation had not had enough time to examine these responses, he
reserved the right to submit additional follow-up quest ions in relation to them.  His understanding was
that some regulations were still under preparation, such as rules on the determination and protectionof well-known marks.  He requested China to noti fy such regulations promptly after their adoption.
He also reserved the right to submit questions concerning such newly notified rules and regulations.
38. The Chairman said that delegations maintained the opportunity to revert to any matter
stemming from any review at any time.
39. The Chairman recalled that, as requested by the Council at its meeting in November, the
Secretariat had updated its informal note that listed all the outstanding material required to complete
the reviews that the Council had already undertaken  (JOB(03)/29).  The table attached to the note
listed those Members whose reviews were initiated at the Council's meetings in April, June and
November 2001, and March and June 2002 but had not yet been completed, and it identified all the
outstanding material.  In addition, the note also listed a number of Members whose reviews had
already been deleted from the Council's agenda, but to whom further questions had been posed.  There
were now 19 Members whose reviews had been initiated between April 2001 and June 2002 that hadnot yet been completed, namely Brazil, Cameroon, Congo, Cuba, Egypt, Fiji, Grenada, Kenya,
Mauritius, Moldova, Nigeria, Pakistan, the Philippines, Qatar, Saint Kitts and Nevis, Saint Vincent
and the Grenadines, Suriname, Swaziland, and Zimbabwe.IP/C/M/39
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40. The representative of Cameroon said that his delegation had encountered some difficulties
with regard to notifications under the TRIPS Agr eement.  His delegation had asked for technical
assistance from some of its friends, in particular WIPO and the European Communities, but was still
waiting for such technical assistance that would enable it to update its notifications.
41. The representative of Cuba recalled that, at the Council's meeting in November 2002, her
delegation had provided information in relation to its responses to questions on the protection of
geographical indications.  It still needed to provide responses to questions relating to the new
legislation on industrial designs and inventions wh ich was to be adopted and published shortly.  The
legislation on integrated circuits and plant varieties would not be adopted as rapidly as her delegation
had hoped.  Nonetheless, she hoped that her delegation would be in a position to answer all the
questions on industrial designs, inventions and related matters during the first half of the year.
42. The representative of Egypt said that he hoped to provide the Council with responses to the
outstanding questions at its next meeting.
43. The representative of Kenya said that he hoped to be in a position to supply a response to the
additional question posed to it by the Council's next meeting.
44. The representative of Nigeria said that responses to the outstanding questions were ready for
submission and would be provided shortly.
45. The representative of Pakistan said that his delegation had provided, as promised at the
Council's previous meeting, responses to outstanding questions, and that it intended to provide
responses to the two remaining follow-up questions from Switzerland before the Council's next
meeting.
46. The representative of the Philippines said that his delegation was in receipt of the last batch of
questions submitted to it and would provide responses to them as soon as possible.
47. The representative of Qatar said that the concerned department in the Ministry in the State of
Qatar would address this issue and provide responses to the remaining questions shortly.
48. The representative of Zimbabwe said that his delegation would provide responses to the
outstanding questions as soon as they were ready.
49. The representative of the European Communities thanked all those delegations that had
submitted responses to the follow-up questions posed by his delegation.  It would examine those
responses carefully and pose further follow-up questions as necessary.  Concerning both notifications
of laws and regulations and responses to outstanding questions, he noted that the Council was far
beyond the deadline of 2000.  The Council was still waiting for a considerable number of
notifications, and 15 out of the 19 Members that still had pending questions had not yet provided a
full set of answers to the questions posed by his delegation.  He encouraged the delegations concernedto provide the outstanding material as soon as possible in order to complete the follow-up to reviews
already undertaken.
50. The Chairman expressed his concern about the fact that the Council had not made any
progress on the follow-up to reviews already undert aken since its meeting in November/December.
This might have been due to the short period of time between the two meetings and also the holiday
season.  He noted that there was sufficient time before the Council's next meeting scheduled for
3-5 June to provide responses to the remaining questions.  He hoped that those Members that did not
have adequate resources would request technical assistance that would enable them to provide
responses to the outstanding questions posed to them.IP/C/M/39
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51. He said that the Secretariat note also listed five Members, namely Argentina, Dominica,
Gabon, Ghana and Guyana, whose reviews 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 review at
any time.  In this connection, certain questions ha d been raised with regard to the implementing
legislation of these countries.
52. The representative of Argentina said that her delegation had received additional questions less
than ten days previously and that these questions  had been forwarded to the respective authorities.
53. The representative of Gabon said that his delegation had made a considerable effort in
replying to the questions put to it.  Responses to the further follow-up questions would be provided to
the Council as soon as possible.
54. The Chairman proposed that the Council request the Secretariat to update its note on pending
reviews and contact those Members whose reviews were still pending prior to the Council's next
meeting.
55. The Council took note of the statements made and agreed  to proceed as suggested by the
Chair and revert to the matter at its next meeting.
56. The representative of Australia said that the delegations that had difficulties in making
notifications and responding to questions put to them by other delegations about the implementation
of the existing provisions of the TRIPS Agreement mi ght wish to attend the following Special Session
of the TRIPS Council which was looking at new obligat ions that they would have to encounter.  The
representative of the European Communities said that this was not the appropriate place to raise such
a matter.  The Chairman asked delegations to respect the Council's agenda so as to allow it to deal
with various issues under appropriate agenda items.
C. PARAGRAPH 6 O F THE DOHA DECLARATION ON THE TRIPS A GREEMENT AND PUBLIC
HEALTH
57. The Chairman recalled that, at its meeting on 20 December 2002, the General Council had
agreed that the TRIPS Council should resume work on this agenda item promptly in January in order
to resolve the outstanding issues in the text that he had circulated on 16 December 2002(JOB(02)/217) and to report to the General Council in order to enable it to take a decision
implementing a solution to the problem identified in paragraph 6 of the Doha Declaration on the
TRIPS Agreement and Public Health (hereinafter "the Declaration") at its first meeting in 2003.
58. He said that, upon his report to the General Council at its meeting of 10 February 2003 on the
status of his consultations, the General Council had agreed to suspend discussions on the
implementation of paragraph 6 of the Declaration and, if necessary, to revert to this issue at a
reconvened meeting.  He drew the Council's attention to new documents, one submitted by the UnitedStates (IP/C/W/396/Corr.1), the second by the European Communities and their member States
(JOB(03)/9) and the third by Japan (JOB(03)/19) .  He regretted to inform the Council that,
notwithstanding his consultations on the subject, he was not in a position to put forward any further
suggestions or ideas to bridge the remaining gap in his text of 16 December 2002.  He encouraged
Members who had any new suggestions or ideas in  this regard to share them with others.
59. The representative of the European Communities regretted that he was not in the position to
come up with any new proposal or fresh ideas but expressed satisfaction that his delegations' proposal
of 7 January 2003, circulated in JOB(03)/9, had at least contributed to relaunching the discussion on
TRIPS and public health this year.  He reiterated that his delegation was flexible and would endorse
any solution that was agreeable to developing countries and which preserved the spirit and theIP/C/M/39
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integrity of the Declaration and the Chairman's text of 16 December 2002.  In his view, it was now
essential for others to indicate their position on this text.
60. The representative of Japan said that his delegation had put forward its ideas in its submission
of 5 February 2003, circulated in JOB(03)/19, and th at he did not have any new suggestions to make.
He said that his delegation recognized the seriousness of the problem and that it would very much liketo see a multilateral solution at the earliest opportunity.  He confirmed that his delegation was ready to
join any discussions necessary to come to an agreed solution.  He said that, if called upon to do so, his
delegation was willing to further develop the ideas in JOB(03)/19.  Finally, he expressed his strong
appreciation of the Chairman's efforts and said that even though Members had not yet come to a
consensus, he remained confident that a solution would eventually be found on the basis of the legacy
of the outgoing Chairman's effort.
61. The representative of Kenya expressed his disappointment and frustration that the Council
had not yet been able to come up with a solution to the problem identified under paragraph 6 of the
Declaration.  He hoped that a multilateral solution to the problem that was identified by Ministers in
Doha would soon be found.  He reiterated that each  country had to be free to specify the grounds on
which compulsory licences could be granted under its laws and the conditions for such grants, taking
into account its own needs and conditions.  He said that any proposal going against this principlewould be widening the gap rather than trying to bridge it.  He stressed the importance of urgently
coming up with a solution because lives, which could be saved if a solution was in place, were being
lost.  He urged the incoming Chairman to intensify consultations on this issue and said that Kenya
was ready to participate in them.  He suggested that such consultations focus on the regional approach
put forward by the African group as an answer to the problem that Africa faced and which waspresently identified under paragraph 6 of the 16 December text.  He said that Africa was looking for a
solution that would empower African countries to have some domestic manufacturing capacity and
where the regional trading arrangements could be regarded as the domestic market.
62. The representative of Lesotho said that he had hoped that before the end of the current
Chairman's tenure a solution could be found to the problem set out in paragraph 6 of the Declaration.
He said that this was an area where the WTO, which for a long time had been accused of not having a
humane face, could prove doomsayers of the multilateral trading system wrong.  He wished to stress
the importance that his delegation attached to directives and deadlines given at Ministerial
Conferences, irrespective of the powers that the General Council had in the periods between
Ministerial Conferences.  He said that if deadlines were missed, the political momentum gained from
Ministerial Conferences could be lost during the intervening periods.
63. The representative of Chile regretted that it had not been possible to arrive at a solution on
this very sensitive issue before the end of the current Chairman's term of office.  He expressed
gratitude on the part of his delegation for the efforts made by many delegations and groups of
delegations over the previous weeks in order to find a solution which would enable the one Member
of the Council still outside the consensus to join the consensus on the text of 16 December 2002.
64. The representative of Egypt emphasized that a solution should be based on the problem
identified in paragraph 6 of the Declaration and that a solution should not restrict the flexibility that
Members enjoyed under the TRIPS Agreement, which had been reinforced by the Declaration.  He
affirmed his delegation's readiness to work with the Chairman and other Members to achieve the
desired result in the near future.
65. The representative of Nigeria said that his delegation considered the text of
16 December 2002 as a compromise which it remained willing to accept.  He underscored the
importance his delegation attached to respecting the Declaration and stressed the need for an early
solution.  He said that his delegation was in favour of a multilateral solution that would be able toIP/C/M/39
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solve the problems of countries with insufficient or no manufacturing capacity in the pharmaceutical
sector.  His delegation was willing to participate actively in further efforts to find a solution.
66. The representative of Hungary recalled that his delegation had accepted the text of
16 December 2002 which it considered to contain a basic balance and to offer a workable multilateral
solution.  For this reason, his delegation had endorsed the text in its entirety and his delegation'sposition in this respect had not changed.  He said that the WTO needed to find a multilateral solution
as soon as possible as the organization simply could not afford not to do so.
67. He said that while his delegation welcomed the announcement of unilateral moratoria as
political gestures that showed the importance gove rnments attached to finding a lasting solution to
meet the mandate agreed upon in Doha, he doubted whether moratoria could provide even an interim
solution, given that such political, government level pledges did not affect rights of individual right
holders to litigate at the national level.  He affi rmed that Hungary would also not start any dispute
settlement proceedings in the WTO in relation to the problem set out in paragraph 6 of the
Declaration.  He regretted that his delegation did not have any new ideas on how to bridge the
remaining gaps between positions.  However, his delegation wished to place on record that it would
be willing to endorse any solution acceptable to developing countries that would preserve the
Declaration and the text of 16 December 2002.  He expressed willingness to participate in anyconsultations with that objective.
68. The representative of Thailand voiced serious concern about the public health issue posed
under paragraph 6 of the Declaration which most Members wanted to see resolved consensually.  He
affirmed his delegation's continued support of the Chairman's text of 16 December 2002 which in his
view had reasonably taken into account humanitarian concerns as well as the objectives of the TRIPSAgreement.  He reported that his delegati on had received requests from various non-profit
foundations and charities for HIV patients and other patients suffering from serious diseases to
support the Chairman's text of 16 December 2002.  His delegation encouraged the Chairman to urge
Members to find an expeditious solution as mandated by paragraph 6 of the Declaration.  He said that
until the solution to paragraph 6 envisaged under the Chairman's text of 16 December 2002 could bemade operational, Members would not be relieved from their social and humanitarian obligations in
the eyes of the public.
69. The representative of South Africa said that, in the view of his delegation, the Chairman had
succeeded in finding a solution that the majority  of Members could agree with in the text of
16 December 2002 and that only one or two countries had not agreed to that text.  He affirmed that his
delegation had tried and would continue to try to make those that were still outside this consensus join
the majority of Members and to participate in a multilateral solution.  His delegation considered thetext of 16 December to be a finely balanced solution in which everyone had had to make some
concessions and was of the opinion that the text represented the best solution that could be achieved in
the WTO.
70. He expressed gratitude to those Members that had made efforts to extend the consensus to
those that still remained outside, particularly the European Communities and Japan.  He also referredto a Chairman's statement that had been floated informally.  However, he said that these proposals had
tended to undermine both the spirit and the letter of th e Declaration, particularly with respect to the
scope of diseases.  His delegation had studied the informal Chairman's statement carefully but was of
the opinion that the effect of this proposal would be to reduce the circumstances in which some
countries, particularly the less developed countries without manufacturing capacity, would be able toutilise the mechanism.  Consequently, his delegation took the view that those efforts had not been
very helpful in finding a solution.
71. The real issue that had to be focused on was that one or two countries which had failed to
support the 16 December text had done so mainly because they had been held back by theIP/C/M/39
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pharmaceutical industry.  Consequently, South Africa had been engaging with the industry and had
urged it to support the United States in joining th e consensus and in participating in a multilateral
system.  He said that his delegation had suggested that this was the best possible consensus that could
be achieved and that holding back a consensus in the WTO might begin to unravel the TRIPS
Agreement itself.  He reminded Members of the statement by the Holy See on 20 December 2002 thatthe TRIPS Agreement was, in fact, a social contract under which everybody had rights and
obligations.  He said that the industry too had an obligation to contribute to its side of the bargain.
Therefore, his delegation suggested, as it had done before, to freeze the 16 December text and not to
hold any further discussion on the issue until the pharmaceutical industry had been successfully
persuaded to join the consensus.  His delegation considered this to be the only way forward as
otherwise Members would run the risk of unravelling the entire text completely.
72. The representative of Bulgaria joined other delegations in saying that the 16 December text
was the most balanced and probably the best text that could possibly be achieved and that the reason
why the text was not being adopted was not in the text itself but was due to some perceptions on the
part of certain economic actors.  He stated that his delegation continued to support the text and was in
favour of a multilateral and permanent solution.
73. The representative of the Czech Republic expressed her delegations' appreciation for the
efforts of the Chairman in finding an acceptable solution to the issue which was of great importance to
countries which lacked manufacturing capacity in the pharmaceutical sector.  She also expressed
gratitude for the attempts made by some Members in the aftermath of the December General Council
meeting to break the deadlock the Council was facing.  She stressed her delegation's disappointment
about the collective failure in approving by consensus the text resolving the problem mentioned inparagraph 6 of the Declaration at the end of 2002.  However, her delegation was confident about a
positive conclusion to the issue and was of the opinion that there was a chance to resolve the
remaining concerns of some Members by exercising the necessary political will and flexibility and by
multiplying Members' efforts.  She joined previous  speakers in affirming that her delegation believed
the 16 December text to be fully in line with the spirit of the Declaration and to reflect a properbalance of all interests involved.  She said that the text proposed a multilateral solution and a
mechanism which could ensure access to medicines for countries in need, which did not undermine
research and development of new and better pharmaceuticals and did not allow for abuse of the
system.  Her delegation was and remained of the opinion that the 16 December text was the right way
out as a chance to save the image of the institution.
74. The representative of the United States confirmed that her delegation remained interested in
achieving consensus but that, as Members knew, consensus involved helping each other with vital
areas of concern in order to actually turn an emerging consensus into a consensus.  She said that her
delegation had expressed its concerns at many different meetings and that her delegation appreciated
the efforts of a number of other delegations who had tried to address those concerns.  She assured the
Council that her delegation remained committed to finding a multilateral solution.  She said that her
delegation had announced its interim solution, which indeed it considered interim, and that somebeneficiaries of the solution had already expressed their appreciation of it.
75. The representative of Chinese Taipei expressed his delegations' deep regret that despite
Members' continuing hard work and perseverance there was still no consensus with respect to the
implementation of paragraph 6 of the Declaration.  His delegation sincerely hoped that no Member
would ever find itself under compulsion to invoke  the proposed mechanism.  His delegation highly
appreciated the need for a speedy solution and urged Members to make every effort to complete this
mandate, including extending invitations to leading private or legal persons or organizations in the
pharmaceutical industry to acknowledge the fact that severe health catastrophes existed and to
contribute any legal means to reduce the gravity of the above-mentioned health catastrophes affecting
mankind.IP/C/M/39
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76. The representative of Brazil said that his delegation considered the adoption of the
Declaration to be a landmark in the history of the WTO and that it attached great importance to the
discussions on the implementation of its paragraph 6.  His delegation believed that the issue was of
crucial importance to developing countries and it was for this reason that it had sought to engage and
participate actively and constructively in the discussions.  He said that in the course of discussionsduring the previous year his delegation had moved far from its preferred options for a solution.  He
recalled that his delegation had made a number of considerable concessions and that in late
December, after a few weeks of very intensive consultations and negotiations,  it had stated in an
open-ended meeting of the TRIPS Council that it was in a position to join a consensus on the
document presented by the Chairman on 16 December 2002 as a compromise solution.
77. He recalled that in the course of these discussions his delegation had also repeatedly stated
that it could only accept a solution that would be in line with the spirit and letter of the Declaration.As paragraph 6 was part of that Declaration, any solution to the problems identified by that paragraph
had to respect the integrity of the Declaration as a whole.  He stated that his delegation had not been
in a position to accept a solution that would amount to  a re-interpretation or re-writing of other parts
of the Declaration and that this position remained unchanged.  He reiterated his delegation's
commitment, given the considerable importance it at tached to the issue at stake, to seeking and
finding a multilateral and permanent solution which was within the scope of the mandate given by
Ministers in Doha.
78. The representative of Morocco, speaking on behalf of the African group, thanked the
delegations of the United States, the European Communities and Japan for their recent initiatives
which his delegation considered courageous in their attempts to enhance efforts to try and find aconsensus in light of the Declaration.  He reaffirmed that the African group wanted Members to find a
legally permanent and multilateral solution to this issue which should be practical in its
implementation.  He stated that the Chairman's text of 16 December was still acceptable to the
African group as it contained the best possible balance and compromise.  He stressed that the African
group was extremely keen on solving this key problem which it considered to be of great importancein the context of negotiations of the Doha Develo pment Round.  He said that he was joined by all
other members of the African group in transmitting a message of urgency by pointing out the large
number of human lives that were being lost.  Therefore, he appealed to Members to come to a
consensus on the 16 December text and to find an acceptable solution.  Finally, he stated that the
African Group remained willing to work for the remainder of the outgoing Chairman's term, as well
as with his successor, in order to quickly find a solution quickly to the concerns of the African group,
which had the most at stake in this matter.
79. The representative of Paraguay underlined the importance his delegation attached to the issues
at stake due to their humanitarian dimension and joined other delegations in appreciating the outgoing
Chairman's efforts.  He joined other delegations in adding his voice of support for the 16 December
text which he believed could lead Members towards a consensus on the question and was the
alternative closest to acceptance as a solution.  He affirmed that his delegation was committed toseeking a permanent and multilateral solution to this matter.
80. The representative of the Slovak Republic called for a multilateral and permanent solution.
She said that, as others, her delegation remained convinced that the 16 December text was the best
and most balanced one.
81. The representative of the European Communities reiterated his delegation's attachment to
finding a multilateral solution in this context.  Ho wever, he wished to make a short statement on the
moratorium which his delegation, like others, had pronounced in JOB(03)/9.  He affirmed that a
moratorium could be regarded as a positive signal in itself, indicating that all delegations wanted to
work towards a positive solution.  However, he said that his delegation wished to underline that it had
only reluctantly taken that step because it certainly did not consider it as a step towards any emergingIP/C/M/39
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and viable solution to the problem the Council was trying to address.  His delegation considered the
moratorium to be more of a face-saving exercise which might not have the necessary practical
implications that his delegation wished to see in a solution on this matter.  He said that what a
moratorium meant was that delegations who had pronounced themselves in favour of such a
moratorium had simply stated that they would not in itiate dispute settlement proceedings against other
Members producing exclusively for export.  However, this did not imply that those Members who had
the capacity to produce for export would take the necessary legislative steps at the domestic level in
order to be able to proceed.  Therefore, the idea of a moratorium risked being a merely theoretical one
which lacked the necessary legal backup at the domestic level.  Consequently, his delegation
considered this contribution to have a very limited substantive value and continued to aim at a
multilateral solution within a short time.  His delegation certainly did not want to prolong the
moratorium or suggest that it was a viable solution for a longer period.
82. Referring to the comments made by the representative of South Africa which suggested that
the proposals made after Christmas possibly undermined the spirit of the Declaration, he stated that
this certainly had not been the intention of his delegation when it had submitted the proposal
contained in JOB(03)/9.  This proposal was meant to adhere to and respect the spirit of the
Declaration.  He said that his delegation did not believe that the proposal diverted in any way fromthis basic text.
83. As to the way forward, he agreed to the suggestion made by the representative of South Africa
to maintain the 16 December text as it was and to work on that basis in order to urgently find a
solution.  Finally, he said that he hoped that th e Council would continue to work in the spirit of
independence and would not in the future be influenced by pressure groups in deliberating and takingdecisions.
84. The representative of Switzerland acknowledged the ongoing efforts of the Chairman, the
Secretariat and other delegations aimed at bringing about a consensus.  He expressed regret that no
consensus on a solution for the paragraph 6 problem had been reached by the end of the previous year.
His delegation was of the view that poor countries with insufficient or no manufacturing capacities inthe pharmaceutical sector should be able, if no better alternative was at hand, to make effective use of
compulsory licences to address public health problems arising from epidemic diseases such as the
ones referred to in the Declaration.  He stated that his delegation remained committed to finding a
solution to this problem.  It had been in confirmation of this commitment and in order to send a clear
signal to countries in need of a "paragraph 6 solution" that Switzerland, as other Members, had
announced at the end of the previous year that, as an interim measure but with immediate effect, it
would refrain from initiating dispute settlement proceedings in the WTO against countries exportingpatented drugs to poor developing countries under compulsory licences granted to assist such
countries in fighting epidemics.  He said that th is measure should remain valid until a multilateral
solution was agreed by Members and that consequently he also considered it to be a commitment to
reaching multilateral consensus.
85. He reported that the week before the Swiss pharmaceutical company Roche had announced
that it would review its pricing policy in the framework of the Accelerating Access Initiative, cutting
prices for its AIDS medicines by 85% for all countries in sub-Saharan Africa and least-developed
countries, thereby selling those products under cost.  He said that his delegation considered this to be
a very encouraging move to help poor developing countries facing AIDS problems to actually have
access to affordable medicines.
86. Turning to the task before the Council, he ack nowledged that a lot of work remained to be
done by the Chairman and delegations on finding a solution to paragraph 6 of the Declaration.  As the
Council had been very close to a consensus, his de legation remained confiden t that the Council would
manage to bridge the gap and find an agreement on the outstanding issue in the Chairman's text of
16 December.  He said that, in fact, at the end of the previous year it had seemed to his delegation thatIP/C/M/39
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even on the scope of the solution a consensus had been emerging among Members.  He said that the
disagreement had seemed more to relate to form a nd wording than to substance.  He stated that from
the discussions among Members, his delegation had deduced that there had, in principle, been
agreement that a paragraph 6 solution, consistent w ith the spirit of the Doha Declaration, should not
cover all diseases, nor all medicines, nor all health problems.  He said that there had seemed to be aconsensus that what was to be covered was already included in the wording and spirit of paragraph 1
of the Declaration.  He concluded that the task the Council was now facing was to find a wording or
form in which to express this consensus with su fficient clarity and, at the same time, with the
necessary flexibility, respecting the integrity of the Doha Declaration.  He said that his delegation
remained committed to working further towards a solution with the outgoing Chairman, if time
permitted, or, if necessary, to continue work with the incoming Chairman.
87. The representative of the United States said that all delegations in the Council had
constituents which they represented and that even independent governments were arguably in the
Council to represent their constituents and to work together to find solutions.  She said that arriving at
a consensus clearly involved give and take.  Where there were problem areas, solutions still remained
to be found.  She said that the moratorium was an interim effort that was part of the ultimate goal that
all delegations were committed to, namely finding an expeditious, multilateral solution for this oneaspect of the Declaration.  She stressed that the Declaration itself still stood and that it was just one
aspect reflected in one paragraph that was at issue and that Members had been working on it for the
previous months.  She thanked delegations that had expressed appreciation for her delegation's interim
effort and said that her delegation wished to direct its efforts especially to those developing countries
which had indicated where they were committed to accommodate her delegation.
88. The representative of Pakistan expressed his disappointment that a solution had not yet been
found despite the immense flexibility shown by both developing and developed countries.  He
believed that the 16 December text had been accepted as a balanced compromise.  His delegation
believed that the fact that no solution had been found as yet was a failure of the membership at large
and the signal that the Council had been afraid to transmit to the outside world had already beentransmitted.  He affirmed that his delegation remained committed to finding a multilateral solution to
this problem and would work with the Chairman towards this end.
89. The representative of Israel said that his delegation was of the opinion that the 16 December
text had been a success.  He recognized the necessity of finding a solution that would solve the issues
addressed in paragraph 6 of the Declaration and regretted that a consensus had not been found to date.
His delegation continued to support the 16 December text and hoped that a multilateral solution could
be agreed upon soon.  His delegation would continue to  work constructively with the outgoing as well
as the incoming Chairman and all others involved in order to reach the long needed consensus.
90. The representative of India said that the 16 December draft represented a balance of interests
and that his delegation hoped that this would ultimately prove to be the solution.  He joined the
representative of the United States in affirming that the Declaration still stood and that his delegation
subscribed to any position that was in full conformity with the Declaration and did not in any wayinvolve a delimitation or re-interpretation of it.
91. The representative of Canada joined previous speakers in expressing his disappointment that
the Council had not yet reached a consensus.  Like others, his delegation remained committed to
finding a multilateral solution.  He affirmed that, as his delegation had said in informal meetings in
recent weeks, until a multilateral solution could be found his delegation would join other Members indeclaring that it would not take dispute settlement action against measures intended to assist a poor
country with limited or no manufacturing ability needing access to medicines to treat a public health
crisis such as HIV/AIDS or other epidemics.  In doing so, his delegation fully recognized the
limitations of this interim measure.  He emphasized that this commitment did not in any way reduce
his delegation's resolve to work towards a multilateral solution, and to consider any new proposalsIP/C/M/39
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with an open mind.  His delegation remained hopeful that, with creativity and flexibility on the part of
all Members, consensus could be built and a solution could be found.
92. The representative of Turkey said that his delegation still believed that the Chairman's text of
16 December was a carefully balanced compromise which was the best that was possible in the
Council's efforts to find a multilateral solution to this problem.  His delegation expressed its supportfor this text once again and hoped that a consensus in the Council could be reached on the basis of it
as soon as possible in order to save the face and the credibility of the WTO in the eyes of the outside
world.
93. The representative of Norway joined other delegations in voicing support for the
16 December text.  Her delegation still thought that it was a good basis for a consensus and hoped that
Members which were not yet able to join the consensus would do so very soon.
94. The representative of China stressed the importance of reaching a multilateral, stable and
permanent solution to the issue as soon as possible.  This was in the interest of developing country
Members, and important for social and humanitarian reasons and for confidence-building purposes.
He reiterated the importance of adherence to the Declaration in order to assure smooth progress on the
Doha Development Agenda and credibility of the WTO.  His delegation was prepared to continue
cooperating with the incoming Chairman and other WTO Members on the basis of the 16 Decembertext.
95. The representative of Korea expressed appreciation for the proposals made by the delegations
of the European Communities and Japan in order to help bridge the gap among Members and reach a
multilateral solution.  He said that the stakes of this issue were high for all Members and that the issue
of public health had proved to be quite complicated.  His delegation stressed the importance ofretrospective insight on where the discussion on this issue started two years ago and the common
understanding at that time that Members would move forward by making the most of the flexibility
provided for under the TRIPS Agreement, thus rendering it a central part of the solution.
96. He said that the Declaration had embraced ambiguity in its language and that it was likely that
the Declaration would be subject to different interp retations by Members according to their divergent
concerns and perspectives.  This explained why Members wanted to make sure that a possible
multilateral solution would address not only immediate concerns of Members but also serve their
long-term interests with respect to public health issues.
97. The representative of Panama recognized the work undertaken by the Chairman in order to
come to a consensus on paragraph 6 of the Declaration.  She confirmed that her delegation would
continue in the efforts to reach a quick solution to this problem with the incoming Chairman.  She
reiterated her delegation's view that any decision taken on the issue should maintain the spirit ofparagraph 6 of the Declaration and it should also respond to the concerns expressed by Members
during the discussions.  Members should, therefore, endeavour to find a balance of all the concerns
mentioned during discussions.
98. The representative of Cuba said that, notwithstanding the dissatisfaction on certain points
expressed by her delegation at previous meetings, her delegation still thought that the 16 December
text provided a basis that had been endorsed by her delegation as a compromise solution.  She shared
previous speakers' appreciation for the Chairman's efforts in drafting a text acceptable to all Members
despite their many differences.  Such a solution should not, however, affect the Declaration reached
by Ministers in Doha nor the principles and objectives to be found in the TRIPS Agreement.  She said
that it was these principles and objectives that had contributed a great deal to the trust Members had inthe WTO and created logical expectation that the intellectual property system should try to find a fair
balance not only between the interests of producers of knowledge and users of this knowledge, but
also between nations with considerable differences with regard to the stage of development of theirIP/C/M/39
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economies.  However, to date it seemed that there was not yet a mechanism which gave more
importance to the right to life and health over the interests of a minority claiming their intellectual
property rights, despite the obvious agreement of the membership at large with one or two exceptions.
She said that the minority was able to successfully  seek to exert an influence on governmental and
political decision takers.  She said that the community of nations reunited in this Council had the dutynot to forget that the multilateral system which brought Members together involved not only rights but
also necessary compromise in order to consider other Members' problems as if they were their own
and that this compromise was to be demonstrated not with words but with actions.
99. The representative of Bangladesh, speaking on behalf of the LDC group, said that even if the
Council had not yet been able to reach a decision, he was convinced that the Chairman had brought
Members very close to an agreement.  He said that the LDC group wanted a multilateral solution that
would indicate that the reference to other epidemics in paragraph 1 of the Declaration was meant todemonstrate the illustrative nature of the list of public health problems.  He stressed that the
declaration of the existence of public health problems, as well as the grounds of issuing compulsory
licences, were prerogatives of governments.  He said that all Members had recognized the gravity of
public health problems afflicting many developing and least-developed countries and that it was only
logical to put in place a mechanism that would address serious public health problems of thesecountries.  He reiterated that Ministers at Doha had reaffirmed that the TRIPS Agreement should be
interpreted and implemented in a manner supportive of Members' rights to protect public health.
Finally, he said that the LDC group endorsed the 16 December text and urged Members to adopt the
decision contained in that text.
100. The representative of Indonesia expressed her delegation's regret that Members had not been
able to reach consensus on an appropriate multilateral solution for paragraph 6 of the Declaration to
date.  Her delegation recognized that the 16 December text was a compromise even though it was not
the best solution.  She said that her delegation still had doubts about the workability and practicability
of the proposed solution as there were so many conditions and elements required to implement it.
However, recognizing the importance and urgency of public health problems, her delegation remainedready to show flexibility with regard to any possible ideas that would bridge the gap between
Members' positions, as long as such ideas did not  detract from or undermine what had already been
agreed in the Declaration.
101. The representative of Malaysia joined other delegations in expressing disappointment that the
Council had not yet arrived at a consensus.  She said that her delegation also had doubts about
whether the stringent conditions under the 16 December text would allow a practical implementation
of the solution.  However, her delegation was willing to try it as the text had built-in provisions for thereview of its implementation in case Members fa ced any difficulties in implementing the solution.
She recalled that the text contained a number of extensive and complex provisions relating to
transparency as well as safeguards which had been included in order to ensure proper use of the
solution.  Similarly, she said that the granting of two compulsory licences would depend very heavily
on the goodwill of the supplying country.  She added that her delegation remained doubtful about theneed for an annex on the assessment of manufacturing capacity since it was clear that a paragraph 6
solution would apply to countries with no or insufficient manufacturing capacity in the
pharmaceutical sector.
102. Her delegation was concerned that recent proposals to reach a consensus might have the
potential to dilute the Declaration as well as the flexibilities under the TRIPS Agreement which wereenumerated in the Declaration.  She stressed that efforts to reach a paragraph 6 solution should not
subject those flexibilities to reinterpretation or dilution and that these should address the anomaly that
some Members could have effective recourse to compulsory licensing while others could not.  Her
delegation was committed to continuing work with both the outgoing and the incoming Chairmen as
well as other Members in order to reach a multilateral solution as soon as possible.IP/C/M/39
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103. The representative of Jamaica joined other delegations in expressing deep regret that the
Council had been unable to meet the deadline given by Ministers to find an expeditious solution to the
problems faced by countries like Jamaica with limited or no manufacturing capacities in the
pharmaceutical sector and to report to the General Council before the end of 2002.  Her delegation
recognized that there were divergences among countries and hoped that these would be resolved soon.Her delegation wanted to commend the Chairman for the 16 December text which her delegation
believed to represent the best compromise on a paragraph 6 solution.  However, like many
delegations, Jamaica was not completely satisfied with the text.  For instance, her delegation was
dissatisfied with the current formulation of paragra ph 6 (i) of the text which placed a restriction on the
countries benefitting from the granting of a compulsory licence under a regional trade agreement.  Her
delegation was particularly concerned that small developing countries with limited or no
manufacturing capacities in the pharmaceutical se ctor would not benefit from this provision.
However, her delegation believed that the text provided legal certainty that Members could grant
compulsory licences to export much needed pharmaceuticals to countries like Jamaica with limited or
no manufacturing capacities.  She said that her delegation supported the appeal of many delegations
that the scope of diseases should not be restricted and should be in keeping with the Declaration.
Furthermore, her delegation was of the view that the rights and obligations of Members to determinewhat constitutes a national emergency or circum stances of extreme urgency should in no way be
undermined.  She hoped that the text be adopted expeditiously.
104. The representative of Hong Kong, China said th at his delegation continued to believe that the
16 December text had struck a delicate balance and that it looked forward to further work with the
will to finding a permanent multilateral solution as soon as possible.
105. The representative of the Philippines joined other delegations in stressing that as a Member
which presently stood outside the sphere of consensus, his delegation reiterated its commitment to
work constructively with both the outgoing and the incoming Chairmen, as well as with other
Members, in reaching a consensus on the solution.  He agreed with others that the appropriate way
forward was to maintain the 16 December text as a basis for further work.
106. He said that his delegation still maintained that that text should address basic concerns with
regard to safeguards against trade diversion, to domestic manufacturing capacity and others that had
been articulated by developing countries.  This should be done without disturbing the emerging
consensus that the Chairman had so carefully built and, more importantly, without unravelling the
TRIPS Agreement itself, although his delegation had no new ideas to offer.  However, his delegation
believed that with a minimum effort on the part of certain parties, these concerns could be addressed
without disturbing the core elements of the 16 December text.  He reiterated his delegation's firmcommitment to working with the Chairman as well  as other Members in finding the paragraph 6
solution expeditiously as instructed by Ministers.
107. The Chairman suggested that he report the state of play on this subject to the Chair of the
General Council and leave it to his successor to decide on further consultations on this matter.
108. The Council took note of the statements made and agreed  to proceed as suggested by the
Chairman.
D. REVIEW OF THE PROVISIONS OF ARTICLE 27.3(B)
109. The Chairman noted that the Council had partially overlapping mandates to work on three
agenda items, namely the "Review of the Provisions of Article 27.3(b)",  "Relationship between the
TRIPS Agreement and the Convention on Biological Diversity" and "Protection of TraditionalKnowledge and Folklore".  The respective mandates were based on paragraph 19 of the Doha
Ministerial Declaration and the built-in agenda of the TRIPS Agreement, as well as paragraph 12(b)
of this declaration.  Given the action underway in the context of the TNC on outstanding TRIPSIP/C/M/39
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implementation issues, the Council had agreed not to work on these implementation issues at the
present meeting.  Consequently, he requested that the Council's examination of these three matters not
include consideration of outstanding implementation issues relating to them.
110. He recalled that, at its meeting in March 2002, the Council had urged more Members to
provide by 1 June 2002 responses to the questionnaire on the implementation of Article 27.3(b).  TheSecretariat had issued airgram WTO/AIR/1756 on 26 March 2002 to remind Members of the
Council's invitation to provide this information.  He informed the Council that since then, the
Secretariat had received responses and supplements to earlier responses from seven Members;  no
new information had been received since the Council's meeting of September 2002.  As requested by
the Council, the Secretariat had circulated an updated synoptic table summarizing the information in
these responses in document IP/C/W/273/Rev.1.
111. The representative of Zimbabwe expressed his delegation's concern on the lack of progress in
the review process of Article 27.3(b) of the TRIPS Agreement which had commenced in 1999.  He
said that the mandate from the Doha Ministerial Declaration was clear and should be carried out as a
matter of priority.  He hoped that this mandate would spur Members to work together to ensure the
satisfactory completion of the review process.  Without prejudice to the position it had taken in
several proposals, he said that his delegation was convinced that one core issue that needed to beaddressed urgently in the Council was the clarification of the artificial distinctions drawn in
Article 27.3(b) between plants, animals and micro-organisms, and between essentially biological
processes and non-biological and microbiological processes for the production of plants or animals.
Referring to the communication submitted by Kenya on behalf of the African group in 1999, he said
that the review process should clarify that plants and animals, as well as micro-organisms and allother living organisms and their parts, could not be patented and that natural processes that produce
plants, animals and other living organisms could al so not be patented.  It was the view of his
delegation that the scientific definition of "micro-organisms" only comprised bacteria, fungi, algae,
protozoa and viruses.  If plants, animals and part s thereof were excluded from patentability, micro-
organisms and other biological matters found in nature, including genes and cells, should also be non-patentable.  There was no legal or scientific basis for the distinction that was drawn between plants
and animals and  micro-organisms, genes and cells.  He said that while Article 27.3(b) excluded
essentially biological processes from patentabilit y, it did not exclude micro-biological processes or
non-biological processes and that this distinction had no scientific basis either.  Since there was no
reason to regard what was micro-biological as an ything but biological, mi cro-biological processes
should also not be patentable.
112. Furthermore, he said that the Doha Declara tion required that the review process should be
undertaken within the overall context of meeting the objectives and principles as set out in Articles 7
and 8 of the TRIPS Agreement and the development dimension.  Therefore, he believed that the
review process should be seen from the perspec tive of broad socio-economic development needs and
expectations of developing country Members.  He noted that advances in the fields of biotechnology
and genomics were engendering a race to patent ge nes, cells and DNA sequences.  In his view, such
patents were likely to lead to transfer of income from developing countries to developed countries and
the eventual marginalization of smaller firms and less technologically-advanced countries.  This
would run counter to the principles and objectives of the TRIPS Agreement as set out in Articles 7
and 8.  He said that patent systems, originally designed to provide time-limited protection for
mechanical inventions, made a clear distinction between mere discoveries and inventions.  It seemedonly logical that biological materials which were naturally-occurring could only be discoveries and
not inventions.  Patent on such discoveries as genes, cells, DNA sequences and so on would have the
effect of rendering meaningless the basic principles of patent law which distinguished between
inventions and discoveries.  These patents also violated the fundamental considerations of patent law,
such as novelty, non-obviousness, repeatability and exhaustion of rights.  Those patents would have apotential to stifle scientific research and innovation by allowing the patenting of what were essentially
basic research tools rather than end-products.  Such patents were largely aimed at preventingIP/C/M/39
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competition and at gaining monopoly control over thes e discoveries.  They would also have serious
implications for the protection of public health and nutrition.  He therefore believed that the
provisions of Article 27.3(b) as they existed, did not prevent the abuse of patent systems.  Indeed, they
had been used to justify such distortions of patent systems.  For these reasons, the clarification spelt
out above would go a long way towards alleviating these problems.
113. The representative of the United States said th at, with respect to the review process of the
provisions of Article 27.3(b), he urged developing  country Members and Members in transition to a
market economy to submit information to the WTO in the manner in which they had implemented the
provisions of Article 27.3(b).  He said that only with that information could the Council have a more
complete picture of the implementation of the TRIPS Agreement overall, as well as of Article 27.3(b).
In the view of his delegation, Article 27.3(b) provided considerable flexibility for WTO Members by
providing an exception to the mandate in Article 27.1 that patents be available for any inventions,whether products or processes, in all fields of technology so long as those inventions met the
standards of patentability.  Members were free to exclude from patentability plants and animals and
essentially biological processes for the production of plants and animals.  By the same token,
Members that chose to do so could provide patent protection for those inventions.  He said that the US
patent law did not exclude plant and animal inventions from patentability so long as those inventionswere new, useful, and non-obvious.  He gave credit to that protection with providing the incentive for
the US biotechnology industry.  A Member that chose to avail itself of the exception allowed by
Article 27.3(b) must ensure in doing so that protection remained for micro-organisms and for non-
biological and microbiological processes that met the standards of patentability.  If a Member chose
not to provide protection for plant varieties under its patent law, it must provide an effectivesui generis  system for establishing rights in plant varieties.  Members were free to do both and the
United States did so.  He believed that the standards of protection provided by the UPOV 1991 were
appropriate standards for an effective sui generis  system of protection for new varieties of plants.
Adherence to such standards would help to ensure  a more uniform system of protection for plant
varieties around the world.
114. He said that the United States believed strongly that patent systems provided an incentive to
the best and the brightest to invest in research and development of products and processes that
improved people's lives.  Referring to the US submission on 29 October 1999 (IP/C/W/162), he said
that the incentive provided by the patent system over the last two decades had brought about myriad
inventions in agricultural biotechnology that had improved crop yields for farmers and reduced their
dependence on chemical pesticides and herbicides and improved the nutritional level of the food they
grew.  On the pharmaceutical biotechnology side, hundreds of highly accurate tools for diagnosingand treating diseases and other physical afflictions had been developed in recent years and more were
"in the pipeline".  He believed that without th e incentive provided by the patent system the
investments that brought about these changes would not have occurred because businesses and
individuals would not have been willing to invest th eir resources, both physical and financial, towards
these ends.  For that reason, he clarified that, under no circumstances would the United States agree topreclude plants, animals, or micro-organisms as such from patentability under the US law.
115. In reply to the US intervention on the flexibility of Article 27.3(b), the representative of
Zimbabwe said that this flexibility allowed Members to exclude plants and animals from patentability
but also allowed them to patent life forms.  In his view, as long as some Members could grant patentsto plants and animals, the exclusion in other Members would not be worth much.  He further said thatthe patentability of the life form was closely linked to ethical issues.  He said that while 90 per cent of
biological diversity resources were in developing countries and at least 50 per cent of pharmaceuticals
were said to be based on these resources, 70 per cent of patents were granted to companies from
developed countries.  He indicated that while it was acknowledged that a country had sovereign rights
over its natural resources, these rights could not be enforced at national borders because of themobility of genetic resources.IP/C/M/39
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E. RELATIONSHIP BETWEEN THE TRIPS A GREEMENT AND THE CONVENTION ON BIOLOGICAL
DIVERSITY
116. The representative of Peru informed the Council of the results of the second meeting of the
group of like-minded megadiverse countries held in the Urubamba Valley, Cusco on
29 November 2002.  She said that over 70 per cent of the planet's biological diversity wasconcentrated in this group that comprised Bolivia, Brazil, China, Colombia, Costa Rica, Ecuador,
India, Indonesia, Kenya, Malaysia, Mexico, Peru, th e Philippines, South Africa and Venezuela.  The
objective of creating this group was to establish a consultation and cooperation mechanism to promote
common interests and priorities related to the conservation and sustainable use of biological diversity.
The discussions at that meeting had focused on access to genetic resources, the protection of
traditional knowledge and intellectual property rights.  The results of the World Summit on
Sustainable Development, in particular the J ohannesburg Declaration on Sustainable Development
and the Plan of Implementation adopted on 4 September 2002, had been expressly recognized at this
meeting.  The member countries emphasized that the adoption of the "Bonn Guidelines on Access to
Genetic Resources and Fair and Equitable Sharing of the Benefits Arising from their Utilization",
during the sixth meeting of the Conference of the Parties to the Convention on Biological Diversity,
was a useful first step in an evolutionary process for the development of access and benefit-sharingregimes.  They also recognized the national instruments aimed at guiding those developing countries
in the regulation of access to genetic resources, benefit-sharing and traditional knowledge and
sub-regional and regional instruments for the same purposes, including, inter alia , the Andean
Community Decisions 391 and 486, and the Organization of African Unity (OAU) Model Law on the
Protection of the Rights of Local Communities, Farmers and Breeders and for the regulation of accessto biological resources.
117. She further informed the Council that, in the course of the discussions, Ministers and
participating representatives had underlined the importance of the relationship between cultural
diversity and biological diversity, which was one of the most relevant aspects of the heritage of the
megadiverse countries.  They had emphasized that it was necessary to promote bio-prospecting andbiotechnology in a manner consistent with the sustainable use of biological resources and in
accordance with national laws and policies and to prevent biopiracy and illegal access to genetic
resources and traditional knowledge.  They decided to continue to promote the development of a
sui generis  regime to protect traditional knowledge based on intellectual property rights and other
instruments and mechanisms as well as to promote the in situ  conservation of biological resources.
118. She said that the like-minded megadiverse countries had agreed on the following actions:  to
convey the need to formulate a strategy and plan of action which contained targets, objectives,activities and means, including financial resources, to develop joint coordination and consolidated
action to achieve the objectives established;  to strengthen and/or establish a mechanism for
cooperation and exchange of information among those countries, including case studies and the
development of projects in areas such as legal regimes applicable in each country regarding property
rights over genetic resources and traditional knowledge and to promote cooperation and exchange ofinformation, technology transfer and capacity-building among the megadiverse countries as well as
the exchange of successful experiences in the enforcement of laws and regulations;  to strengthen
national and regional processes in order to incorporate elements contained in the Cusco Declaration in
national policies and regulations, especially regarding genetic resources, traditional knowledge and
intellectual property rights;  to promote prior discussions and consensus among the like-mindedmegadiverse countries to enable them to present join t proposals in international forums;  to establish
an ad hoc working group open to all the like-minded megadiverse countries to submit a proposal to
the Group's next meeting in 2003, containing mechanisms to guarantee the fair and equitable sharing
of benefits derived from the use of biodiversity and associated traditional knowledge;  and to urge the
Conference of the Parties to the Convention on Biological Diversity to initiate without delaynegotiations within the framework of the Conventi on, for an international regime to promote andIP/C/M/39
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safeguard the equitable sharing of benefits arising from the use of genetic resources, as called for by
the World Summit on Sustainable Development.
119. With respect to the proposal on mechanisms to be submitted to the Group's next meeting in
2003, she said that these should take into account, inter alia,  the need to recognize the sovereign
rights of countries of origin over their own biological resources, including genetic resources;  the needto guarantee the full protection of the rights of indigenous and local communities over their traditional
knowledge so that their heritage is not accessed and used without their consent or without adequate
benefit-sharing arrangements;  the need to present, prior to the issuance of patents, a prior informed
consent agreement with the country of origin of the genetic resources and proof of the legal
provenance of genetic resources and/or traditional knowledge that are used in or are part of an
invention;  to study and expedite the establishment of multilateral provisions within the framework of
the Cusco Declaration;  and to invite the United Nations Environment Programme (UNEP) and otherorganizations to support the activities established under the Declaration.
120. The representative of Norway recalled that, at the Council's meeting of November 2002, his
delegation had indicated that a provision, which would either require or enable Members to oblige
patent applicants to disclose the source of origin of biological materials which formed part of an
invention, could be added to Article 29 of the TRIPS Agreement.  If the patent applicant failed toreveal the true origin for some reason, certain sanctions or repercussions, such as increased fees,
could be invoked against the applicant, provided that they were considered reasonable under
Article 62.1 of the TRIPS Agreement.  However, such a failure of disclosure should not result in the
rejection of patent.  He underlined that, from a pa tent law perspective, any measures which intended
to further the objectives of the CBD should avoid placing unnecessary burdens on the patent officewhich would handle patent applications.  In his view, Article 29 did not require the patent office to
verify or scrutinize such information as to the true origin of biological materials.  However, if such
information gave cause to doubt whether the inve ntion fulfilled any one of the criteria for
patentability, further examination should be undertaken by the patent office.  This might be the case,
for example, if the information submitted suggested that a patent application might not be new orinvolve an inventive step because it was largely based on traditional knowledge.
121. He then informed Members that since th e Council's meeting in September 2002, the
Norwegian Government had announced its intention to propose certain amendments to its national
patent legislation.  One of the amendments was to require patent applications for inventions relating to
biological materials to include the information on the geographical origin of the material.  Even if the
patent applicant was not aware of the true origin, he would have an obligation to declare the last
source from where he actually acquired the biological material.  A failure to abide by such arequirement would not affect the material outcome on the patent application.  However, a false
statement about the true origin could, if given fraudulently, be punishable under the Norwegian penal
code.  He concluded  that such amendments at the national or international level would ensure a
CBD-friendly implementation of the TRIPS Agreement and would also increase transparency in the
acquisition of genetic resources which, in turn, would be an important element in building  trust in thisarea.
122. The representative of India said that the submission by his delegation and other developing
country Members (IP/C/W/356) proposed that patent applications must disclose the geographical
source of biological resources and associated traditional knowledge upon which the invention is
based.  Applicants must also have taken prior informed consent from the holder of traditionalknowledge and provided for appropriate benefit-sharing in accordance with appropriate national
regimes.  In reply to the argument made by some Members that patent applicants would voluntarily
disclose the geographical origin of biological resources and associated traditional knowledge if
disclosure was required in assessment of prior art, he said that his delegation believed that for the
purpose of determining the prior art it should be mandatory for the patent applicant to disclosenecessary information on the geographical source.  He explained that there was an opportunity givenIP/C/M/39
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under the patent system for misappropriation of traditional knowledge because patents could be
granted over existing traditional knowledge as well as over  new products and processes based on that
knowledge.  To ensure that traditional knowledge was not included within the patent claim of an
invention based on traditional knowledge, the concepts of novelty and inventive step under
Articles 27 and 29 of the TRIPS Agreement must be interpreted or clarified to include priorpublication and prior use anywhere in the world.
123. Furthermore, he said that although the requirement of disclosure was not mandatory during
the early period of the development of the patent system, the nature and content of disclosure in patent
applications had evolved out of necessity.  He noted that at every stage of the development of new
technology the requirement of disclosure had changed to ensure a credible patent system.  In the case
of traditional knowledge-related inventions, he said that the location of materials and the name and
other details of the holder of associated traditional knowledge were necessary for the patent office todetermine the prior art.  Local languages and the way in which the invention was described,
understood and practised were also important for the patent office to find out the prior art.  This
information assumed greater importance in cases where traditional knowledge used in a new invention
was undocumented, based on oral tradition or documented in local languages.  This information was
also needed for the purpose of effectively opposing the patent application to prevent traditionalknowledge from being patented and to establish that  the invention was not new and did not involve an
inventive step.  Such disclosure was also needed for a person to do further research on the new
invention.
124. Thus, he concluded that for the purpose of maintaining a credible patent system, it was
important that the information on the geographic source of traditional knowledge was included in thepatent application.  The request for the mandatory disclosure of this information was not a new or
additional condition but a necessary requirement when new products or processes were the outcome
of new technology in interaction with a different knowledge system that was equally credible and
sustainable.  Even if the request for disclosure was considered to be an additional requirement, he
indicated that this request had been introduced in the patent system for maintaining the balance
between the objectives of providing incentives fo r innovation and of facilitating technological and
industrial progress.  Therefore, in the context of biotechnology and its interaction with  traditional
knowledge, it was only logical for WTO Members to introduce the disclosure requirement to maintain
the credibility of the patent system.
125. The representative of Brazil said that the TRIPS Agreement and the CBD should be
implemented in a mutually supportive manner.  His delegation maintained its position that failure to
address the issue of the relationship between the TRIPS Agreement and the CBD or to effectively takesteps to prevent any potential conflicts between the objectives of the two agreements would ultimately
be detrimental to both instruments. His delegation was aware of several cases in recent years which
had involved bio-piracy and misappropriation of traditional knowledge.  Therefore, there was a
pressing need to adopt measures to prevent bio-piracy and misappropriation of traditional knowledge.
126. He said that disclosure requirements in the context of patent applications, including a
requirement to submit evidence of prior informed consent and of fair and equitable benefit-sharing
under the national regime of the country of origi n, would play a significant role in preventing bio-
piracy and misappropriation.  He noted that some Members had advocated an approach based solely
on privately negotiated bilateral contracts.  However, he believed that such an approach would not be
sufficient.  He said that a comprehensive and in ternational solution was needed so that developing
countries, as victims of bio-piracy, did not need to divert their precious national resources to
expensive judicial proceedings for the revocation of patents that included illegally obtained genetic
resources and associated traditional knowledge.  In his view, the way forward was to amend the
TRIPS Agreement to incorporate the basic and fundamental provisions of the CBD.IP/C/M/39
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127. The representative of the European Communities said that his delegation would be prepared
to examine the establishment of self-standing disc losure requirements at the national level.  He
thought that the disclosure requirement should not have any impact on patentability de jure  or
de facto.  He concurred with the delegate of Brazil in the understanding that the CBD and the TRIPS
Agreement should be mutually supportive and wanted to work out how to implement thisunderstanding in practice.  Referring to the paper submitted by several developing countries
(IP/C/W/356), he said that his delegation was flexible on the inclusion of the subject of amendments
to the TRIPS Agreement to include disclosure requ irements in future negotiations.  His delegation
was also ready to offer equal treatment to all impl ementation-related issues.  However, he reiterated
that, despite its flexibility on the issue, his delegation believed that disclosure requirements should not
have any impact on patentability itself.
128. The representative of the United States said that with respect to several delegations' proposals
on patent applicants' obligations to disclose the source of biological materials in their applications,
his delegation shared these delegations' concerns about bio-piracy but did not believe this was a
productive way forward.  His delegation saw the value in traditional disclosure requirements in patent
systems that were necessary to allow the public to make use of the invention and also to help patent
examiners make searches related to the invent ion.  However, the problem with the disclosure
requirement was that it could discourage patent applicants from applying for patents on their
inventions in the first place and would be a disincentive to innovation.
129. He recalled that the United States had introduced a paper (IP/C/W/257) in 2001, in which it
analysed each of the provisions of the CBD that might bear any relationship to intellectual property.
In that paper, the United States had described in some detail the way in which a contract system thatwas provided for in national laws would be both efficient and effective for granting access to genetic
resources and for ensuring benefit-sharing, including transfer of technology.  He also recalled, that at
the Council's meeting in March 2002, the United States had introduced another paper (IP/C/W/341),
which described the methods used by the US National Cancer Institute (NCI) in collecting genetic
materials for screening for potential therapeutic uses related to cancer and HIV/AIDS.  That paper hadincluded texts of the letters of collection and memorandum of understanding that the NCI had entered
into with relevant agencies or organizations in c ountries in which it was collecting plant materials as
examples of such contracts.  He said that all this information had also been presented to the WIPO
Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge
and Folklore.  WIPO was in the process of collecting other examples of provisions in access and
benefit-sharing contracts concerning intellectual property and genetic resources through a
recently-distributed questionnaire.  When this study was completed and distributed to the members ofthe Intergovernmental Committee, it would provide significant experience in this area and enable
those with less experience to rely on provisions in laws that had withstood the test of time.  He
expected that this exchange of information woul d diminish, to a great extent, any possible uneven
playing field.  Accordingly, he urged Members seeking to regulate access to their genetic resources to
consider carefully adopting an access regime based on such contractual systems associated withMembers' visa systems with respect to foreign nationals seeking to collect materials.
130. He further said that such systems could easily be used to provide for access and benefit-
sharing with citizens and residents as well as foreign nationals.  Such a contractual system was
voluntary and should be the result of negotiations, in as much as the genetic resources being provided
and the parties involved would differ and negotiations could provide the necessary flexibility to takeaccount of those differences.  The contractual system would benefit both sides by establishing the
rights and obligations of the parties to a relationship before access was provided.  The contractual
system could oblige parties being given access to genetic resources to provide an inventory of
materials they had collected, to report regularly on progress in research and development based on
those materials and on any inventions developed, to identify in any patent application filed claimingan invention based on the materials the contract and the source of the genetic materials, and to provide
benefit-sharing with respect to any commercialization of products based on the genetic materials inIP/C/M/39
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accordance with the terms of the contract.  The contractual system could ensure that benefit-sharing
occurred in the event of any commercialization of  the results of research and development based on
materials to which access was provided, whether or not those results were the subject of a patent.  He
also noted that the contract system could specify how any disputes that might arise under the contract
would be handled and in what jurisdiction.  He said that there were already a number of internationalagreements dealing with mutual recognition and enforcement of judgements in connection with
contracts.
131. None of these benefits would be available as a result of a requirement in patent laws to
disclose the source of genetic resources related to research and development of an invention claimed
in a patent.  Such a requirement would impose burdens on applicants that were using genetic materials
as the basis of research and development, regardless of the source of the materials or the significance
of the materials to any end result.  Even if a party that failed to disclose relevant information on thesource of genetic resources were identified and its patent declared invalid or unenforceable, no
benefit-sharing would accrue to the source of those genetic resources.  Successful suits for breach of
contract could, however, result in court orders for specific performance or for damages.  In
conclusion, he recommended that Members take a dispassionate look at the discussions in those two
papers and at the sample memoranda of understanding and letters of collection of the US NationalCancer Institute and consider how a similar system  might be incorporated into their own laws and
practices related to providing access to genetic resources.
132. The representative of China said that there we re two issues related to the relationship between
the TRIPS Agreement and the CBD, that is, whether the TRIPS Agreement was in harmony with the
CBD and how the two agreements could support each other.  She categorized Members' views on thefirst issue as follows.  First, as proposed by Peru, Brazil, China, India and other developing countries,
the TRIPS Agreement and the CBD should be mutually supportive and should promote the
sustainable use of resources.  However, conflicts between the two agreements could arise at the level
of  implementation.  Second, as the European Communities had proposed in its paper (IP/C/W/383),
although there was no conflict between the CBD and the TRIPS Agreement from a legal perspective,it would be wrong to put an end to all discussion by saying that in the absence of legal incompatibility
there could not be any problems with the implementation of the two agreements.  Instead, since there
was considerable interaction between the two agreements, they could and should be implemented in a
mutually supportive way.  Third, the US paper (IP/ C/W/257) suggested that the objectives of the two
agreements, though disparate, did not conflict.  Serious discussion of the provisions of both
agreements could assist those WTO Members that were contracting parties of the CBD to implement
their obligations under both agreements with an emphasis on the complementarity of the provisions ofthe two agreements.  In the view of her  delegati on, although these three views were slightly different,
Members seemed to believe that the objectives of the two agreements did not conflict with each other
and that they should be implemented in a mutually supportive and complementary manner.
133. With regard to the second issue, she categori zed Members' views as follows.  First, some
developing country Members proposed that the TRIPS Agreement be amended to the effect thatMembers should require, as a condition to the granting of a patent, that a patent application contains
the following:  (i) disclosure of the source and c ountry of origin of biological resources and of the
associated traditional knowledge used in the invention;  (ii) evidence of prior informed consent
through approval of authorities under relevant national regimes;  and (iii) evidence of fair and
equitable benefit-sharing under relevant national regimes.  Second, the European Communitiesproposed that national regulation on access and benefit-sharing under the CBD was essential to
guarantee legal security for all parties involved and to protect the right of providers of genetic
resources.  Further details could be set up through contracts.  Legislation, policy measures and
contracts were complementary instruments for ensuring the fair implementation of the CBD.  The
European Communities also proposed self-standing disclosure requirements, which would allowMembers to keep track, at the global level, of all patent applications with regard to genetic resources.
The European Communities had made it clear that disclosure requirements should be limited to theIP/C/M/39
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information on the geographic origin of genetic resources or traditional knowledge used in the
invention and such disclosure requirements should not act, de facto or de jure , as an additional formal
or substantial criterion of patentability.  Legal consequences to the failure of the requirement should
lie outside the ambit of patent laws.  Third, as proposed by the United States (IP/C/W/257), seeking
information and creating organized searchable databases of all knowledge, innovations and practicesof indigenous and local communities embodying traditional lifestyles were important for the
sustainable use of biological diversity.  According to her understanding, the United States thought that
Members had sovereign rights over their natural resources and they were responsible for determining
access to their genetic resources in accordance with their national laws.  Access to genetic resources
was subject to prior informed consent of contra cting parties providing the resources, unless they
decided otherwise.  She understood that the United States believed that the most effective means for
providing access to genetic resources and for ensuring that any benefits that arose from their use wereshared fairly and equitably would be through contra cts between those granting access to the resources
and those to whom access was granted.  Such contract systems might include a requirement that a
party to which access was to be given identified the contract in the specification of patent applications
it filed claiming an invention developed through use of the genetic resources obtained.
134. She went on to indicate that although Member s had different opinions on how to implement
the two agreements in a mutually supportive and complementary way, they acknowledged national
sovereign rights over natural resources, includin g knowledge, innovations and practices of indigenous
and local communities embodying traditional lifestyles.  They agreed with the prior informed consent
by the State of origin with respect to access to thes e resources.  They also agreed that there should be
a system to ensure fair and equitable benefit-shar ing under national regulatory regimes either through
national administrative laws or through contract laws and trade secret laws or through both.
135. With respect to  the EC proposal, she wondere d what the legal consequence would be for the
violation of the disclosure requirement under relevant laws implementing the CBD;  whether it would
be civil monetary compensation, in addition to appropriate profit sharing, or criminal penalty;
whether Members should grant a patent if an invention had infringed the right of local people overgenetic resources;  and whether it was reasonable to keep valid a patent that had been obtained
through bio-piracy.  With regard to the US proposal, she questioned what the legal mechanism was
that could secure the prior informed consent approval by relevant States and what the legal
consequence would be for any contract or exploitation without contract but consistent with these legal
requirements.  She also wondered how this disclosure requirement could be fully implemented merely
based on private contracts.  She understood that the United States recognized that it was possible that
a few individuals could ignore the legal requirement in the same way that some individualscounterfeited trademarks or pirated copyrighted works, but believed that this did not negate the value
of a contractual system that would apply to the vast majority of those seeking access.  She indicated
that while there were penalties to redress trademark and copyright infringement, such as the
revocation of the right itself, such remedies could not be found in the contractual system.
136. Thus, in her view, only amendments to the TRIPS Agreement could make for the
implementation of the TRIPS Agreement and the CBD in a fully supportive and complementary way.
She said that the Doha Declaration put the development dimension in an important position and
reaffirmed the objective of sustainable development.  Therefore, she believed that the discussion on
the relationship between the TRIPS Agreement and the CBD, and the protection of traditional
knowledge and folklore should be guided by these principles.
137. The representative of Japan said that the TRIPS Agreement and the CBD had different
objectives and were not mutually exclusive.  The implementation of the two agreements could not
conflict with each other.  Referring to the intensive discussion in the Standing Committee on the Law
of Patents in WIPO in November 2002, he said that, as proposed by the Dominican Republic, Brazil
and other members, the Standing Committee had agreed to incorporate the CBD-related issue into thedraft patent law treaty within square brackets.  The Standing Committee had also decided that theIP/C/M/39
Page 27
substantive discussion on this issue would be postponed.  Therefore, taking into account the
discussion in WIPO, he thought that it was appropriate to discuss this issue carefully and cautiously.
With respect to  disclosure requirements of the or igin of genetic resources and prior informed consent,
he said that these requirements could not be consid ered to be part of the disclosure requirements in
Article 29.1 of the TRIPS Agreement, taking into account the nature of this information and thepractice of patent offices.  Therefore, he thought that it was inappropriate to put additional obligations
for patent applicants in the TRIPS Agreement by requiring applicants to disclose this information in
their patent applications.
138. The representative of Malaysia thanked the de legation of Peru for the information it had
forwarded to the Council on the recent activities of the mega bio-diversity group of which Malaysia
was a member.  She said that this information highlighted the importance attached by the members of
this group to the protection of genetic resources and traditional knowledge.  She indicated that thisgroup was keen to ensure that the CBD could be fully implemented to promote the protection of
genetic resources and provide for benefit-sharing with   the owner of genetic resources.  She noted that
the requirement of disclosure of the origin of gene tic resources in patent applications and the linkage
to benefit-sharing under the CBD would shift the focus to the patent provisions in the TRIPS
Agreement, particularly the patentability criteria.  She said, however, that the CBD could beimplemented without any conflict with the TRIPS Agreement.  The issue was whether the TRIPS
Agreement needed to be amended for this purpose.  Furthermore, she said that the Council needed to
take into account the implementation of disclosure requirements and benefit-sharing at national levels
and to assess effectiveness of such implementation be fore taking any further steps.  Referring to the
proposal made by Norway, she noted that false disclosure could invoke fines or other penalties butwould not affect the material outcome of patent ap plications.  She wondered therefore whether such a
proposal would have the intended effect to ensure the needed disclosure.  Turning to China's
intervention about the legal issues related to disc losure requirements and the adherence of the CBD,
she said that the TRIPS Council could provide a forum for Members to discuss these issues.
F. P
ROTECTION OF TRADITIONAL KNOWLEDGE AND FOLKLORE
139. The representative of Australia attached great importance to addressing the protection of
traditional knowledge.  Referring to the pape r presented by his delegation in the Council in
October 2001 (IP/C/W/310), he said that this paper outlined some of the Australian experience in the
protection of traditional knowledge.  The paper also referred to a series of Australian case studies
undertaken by WIPO in the period 2000-2001.  These case studies provided specific examples in
which a holder of traditional knowledge or an indigenous or local community used a domestic
intellectual property system to protect traditional knowledge.  It was also argued in the paper thatbetter use could be made not only of existing intellectual property rights, but also of heritage, trade
secrets and contract law to protect traditional knowledge.
140. Furthermore, he said that his delegation was interested in exploring the protection of
traditional knowledge through the WIPO Intergovernmental Committee on Intellectual Property and
Genetic Resources, Traditional Knowledge and Folklore, which was one of the bodies that had beendoing valuable work in this area.  He said that there was a clear recognition that a single solution
could not be expected to meet the wide range of concerns and objectives behind calls for the
protection of traditional knowledge and folklore.  The type of measures required to prevent the
misappropriation of traditional knowledge might not be the same as those needed to enable the
commercialization of traditional knowledge.  He noted that the work in WIPO was aimed atdeveloping some practical tools to address the concerns in this area.  For example, a so-called toolkit
was designed to assist indigenous people in better documenting their traditional knowledge, whether
this was for conservation or commercialization objectives.  He expressed that his delegation would
support further technical cooperation work in WIPO on the legal protection of folklore as well as
preparing a practical guide on the legal protection of traditional cultural expressions.  He noted that anumber of Members had provided technical assistance to the countries who had taken steps eitherIP/C/M/39
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nationally or regionally to protect traditional knowledge.  For example, the South Pacific
Commission, the Pacific Island Forum Secretariat and UNESCO had developed a model law, with
technical assistance from WIPO and Australia, for the protection of traditional knowledge and
expressions of culture which was tailored to meet the specific needs of the Pacific island countries.
He indicated that this draft model law merely represented one kind of approach for the protection oftraditional knowledge.  Other countries considering the development of legislation for the protection
of traditional knowledge could take different approaches to take account of their particular
circumstances.
141. In conclusion, he said that his delegation looked forward to further discussion on the issue of
the protection of traditional knowledge since there were a number of different positions even among
the group of mega bio-diverse countries.  This issue would benefit from further technical discussion in
the TRIPS Council and other relevant international bodies.
142. The Council took note of the statements made.
G. REVIEW OF THE IMPLEMENTATION OF THE AGREEMENT UNDER ARTICLE 71.1
143. The Chairman recalled that, at the Council's meeting in March 2002, his predecessor had
noted that a substantial number of suggestions for topics to be considered under Article 71.1 review
had been made prior to the Doha Ministerial Conference, but some of them overlapped with otheritems on the Council's post-Doha agenda.  In cons idering how to organize its work, the Council had
invited Members to submit ideas for issues to be taken up under this agenda item by the June 2002
meeting, without prejudice to the right of Members to submit ideas at a later stage.  To date, no
suggestions had been tabled by any Members.
144. The representative of the United States said  that the TRIPS Agreement was functioning well
and that its implementation was helping WTO Members establish favorable climates in their
territories for creativity, innovation and investment.  To further enhance transparency, he urged those
countries that had not done so to notify their intellectual property legislation to the TRIPS Council.
He said that technological developments, particularly with regard to the Internet, had led to the broad
acceptance by WTO Members of the WIPO Internet treaties.  He also urged those Members who hadnot acceded to these treaties to consider doing so.
145. The Council took note of the statements made.
H. IMPLEMENTATION OF ARTICLE 66.2
146. The Chairman recalled that, at its meeting in September 2002, the Council had requested
developed country Members to make available information on their implementation of Article 66.2
for the Council's meeting in November.  Given that some of these reports had been submitted just
prior to or in the course of the Council's meeting in November and December, he had indicated at thatmeeting that he would provide delegations the opportunity to also comment on them at the present
meeting.  Since that meeting, further information had been received from the Czech Republic
(IP/C/W/388/Add.8).  In addition, the Council ha d received a communication from the European
Communities and their member States entitled a "Reflection Paper on Transfer of Technology to
Developing and Least-Developed C ountries" (IP/C/W/398).  After the discussion of the reports and
other submissions received from the developed country Members, he intended to turn to the
instruction that Ministers had given at Doha to the TRIPS Council to put in place a mechanism for
ensuring the monitoring and full implementation of the obligations under Article 66.2.
147. Introducing its Reflection Paper, the representative of the European Communities said that, at
the Doha Ministerial Conference, Members had emphasized the importance of technology transfer for
development and decided to establish a Working Group on Trade and Transfer of Technology and callIP/C/M/39
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for the establishment of a monitoring mechanism in the TRIPS Council on the implementation of
Article 66.2.  Wishing to make an active contribution to these two exercises, his delegation had
already produced a communication to the working group (WT/WGTTT/1 of 10 June 2002) and was
now submitting a Reflection Paper which focused more specifically on Article 66.2.  This paper
clarified the choices that the European Communities had made at the time of its notification of itsimplementation of Article 66.2, including in pursuanc e of the commitments made at Doha.  These two
documents were complementary and had the same objective, namely, to honour the European
Communities' commitments and to do so in the interest of consistency with other policies, keeping an
eye on the work of the horizontal working group, and in the interest of sustainable development,
bearing in mind that the ultimate objective was to help the countries concerned "to create a sound and
viable technological base".
148. The method selected by the European Communities was three-fold:  (i) a review of the
definition of technology and the way in which it could effectively help LDCs to improve their
economic and social well-being;  (ii) an examination of the practical problems posed;  Given the
dearth of available data on the LDCs, the European Communities had drawn in part on the work done
on developing countries and had attempted to envision the specific problems encountered by
economic operators in the LDCs;  (iii) a deduction of avenues of reflection for the implementation ofArticle 66.2, the present paper being a preliminary contribution to this end.
149. It was pertinent to ask what technology meant.  In the TRIPS context, one could choose to
confine oneself only to IPR aspects.  In that case, it would be a matter of patented technologies, and
transfers could easily be measured by examining licensing operations.  In this sense, it could be said
that the patent system enabled the dissemination of  knowledge.  It was his delegation's view, however,
that this would be a very restrictive way of dealin g with the issue of technological development, and
that the drafters of Article 66.2 certainly had other ambitions.  The European Communities had,
therefore, based itself on a more complete definition, as was sometimes used by the United Nations:
"technoware", meaning production of goods and m achinery;  "humanware", meaning know-how;
"infoware" meaning  pure knowledge and theoretical knowledge;  and "orgaware", meaning thecapacity to operate a technology in a given environment.  Analysis and experience obviously had
shown that know-how was essentia l in incorporating new technologies in production systems.  These
points had been elaborated in more detail in the Reflection Paper.
150. The representative of the European Communities said that a second important question was
what the transfer channels were.  It was clear that the private sector was the main repository of
technologies, even though the know-how acquired by the public authorities in their sphere of
competence should not be overlooked.  Machinery and intermediate goods might be importedindependently or accompany foreign direct investme nt (FDI).  Information and knowledge were ever
more readily accessible, mainly through patent databases, but LDCs might still encounter numerous
difficulties, particularly on account of a low level of Internet access.  Know-how and orgaware were
seldom codified and were usually acquired by LDCs under another associated operation such as sub-
contract, foreign investment, common research programme and training.  In the realm of businesspartnerships, FDI appeared to have the greatest potential, inasmuch as it was an operation that could
be used to transfer a package combining the four components referred to above.  The investor had a
direct interest in training local staff, modernizing facilities and future proofing of his investment.
151. An additional question was to ask how transfers could be increased.  Among the available
options were:  (i) encouraging business partnerships when accompanied by transfers comprising thefour components;  (ii) providing expert assistance necessary to identify technologies suited to the
local context, to identify the right partners, and to draw up complex contracts;  and (iii) improving the
absorption capacity of LDCs through technical development cooperation.  In this connection, IPRs
played an important role, particularly in creating a legal environment which would encourage firms in
developed countries to transfer technologies and in disseminating knowledge.  While many veryuseful inventions had fallen into the public domain, patents by themselves had not explained theIP/C/M/39
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problem of the technology gap.  For that reason, the EC communication was deliberately based on a
broader, more complete perspective, covering, for example, joint research programmes, provision of
advice and expert assistance, investment assistance programmes, and the establishment of contacts
between partners from the North and the South.
152. Summing up, he said that the EC contribution cl early showed that restricting the question of
transfer of technology exclusively to aspects relating to intellectual property rights could not lead the
Council very far in its discussion.  In his view, it was necessary to view the question in a larger
context and to keep other factors in mind, such as those he had just enumerated.  Finally, he expressed
his hope that the Reflection Paper could serve as a basis for further discussion on the matter.
153. The representative of Bangladesh said that implementation of Article 66.2 was of prime
importance to LDCs.  Developing countries, and in particular LDCs, had assumed onerous
responsibilities in the TRIPS Agreement.  Article 66.2 was one of the few provisions in UruguayRound agreements that provided LDCs opportunities  to build up their economies, and thereby helped
them to comply with TRIPS provisions.  It was th rough Article 66.2 that LDCs would be able to see
that appropriate technology would be transferred to them and a sound and viable technological base
would be established.  To this end, Ministers at Doha had directed Members to put in place a
mechanism for ensuring the monitoring and full implementation of the obligations in Article 66.2.Article 66.2 clearly talked of incentives that had to be provided by developed countries to their
enterprises for the purpose of promoting and encouraging technology transfer to LDCs.  It was
therefore essential for any mechanism developed by the Council to contain an overview of the
incentive regime to be put in place to fulfil the obligations in Article 66.2, in particular the specific
legislative, policy and regulatory framework.  There existed a need to review the incentives, with aview to observing them in action and in assessing th eir outcomes, with the objective of fulfilling the
requirements of the TRIPS Agreement and the directives of the Ministers in Doha.
154. Thanking the developed country Members which had submitted their reports on the
implementation of Article 66.2, he noted that many of the reports had been made available only
recently and that his delegation would require a reasonable time to analyse the information containedin those reports.  The type and nature of any such report was critical for ensuring the monitoring and
full implementation of Article 66.2.  The Doha mandate said that such reports should focus on the
functioning in practice of the incentives provided by developed countries to their enterprises for the
transfer of technology.  Therefore, any report should contain information on the specific incentives
given to enterprises and institutions for transferring  technology to LDCs.  In general, the submissions
by developed countries contained information on bilateral, regional and multilateral development
assistance, aid programmes, technical assistance and capacity-building activities.  He appreciated thewide-ranging support from developed country Members to LDCs' efforts to accelerate
socio-economic development.  However, the manner in which the information had been provided
made it extremely difficult to identify those activities that were specific to fulfilling the requirements
of the TRIPS Agreement.  Therefore, reporting should be precise and conform to the requirements of
the mandate given to this Council.
155. Some of the developed country Members had seen  technology transfer as part of an overall
process of growth and development.  It also appeared that many saw technology transfer as being
fostered in an efficient, open and market-based economy.  The LDCs, in cooperation with the Bretton
Woods institutions, had undertaken wide-ranging reforms to develop their economies.  For the
purposes of the exercise under Article 66.2, a discussion on these maters was unnecessary and woulddivert Members from the context of the Agreement and the need for its separate implementation.  On
a conceptual plane, he believed that Members would agree that imperfections in the market would not
encourage transfer of technology to LDCs in the normal course of events.  This was why special
measures were required for technology transfer, as per the provisions of Article 66.2.  Such incentives
from developed countries could be a decisive factor in the transfer of technology, such as from aprivate company.IP/C/M/39
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156. In conclusion, he said that the LDCs Group was examining the information provided so far
and was open to any suggestion or recommendation from any Member concerning the implementation
of the provisions of Article 66.2.  It was the expectation of the LDC Group that the Council would be
precise and would focus its attention to the letter and spirit of the TRIPS Agreement and the directives
given by Ministers in Doha.
157. The representative of Zambia recalled that, at the Council's previous meeting, he had
suggested three to four amendments to the draft decision on the implementation of Article 66.2 that
the Chair had circulated at that meeting.  His delegation,  as the focal point on TRIPS for LDCs, had
sought to consult some of their trading partners on the matter.  He had had a positive impression from
his consultation with the United States on his suggestions.  He intended to consult also with other
delegations, including the European Communities, with a view to finalizing the decision soon.
158. The representative of the United States said that her delegation had positively engaged in
consultations with LDCs regarding the ideas that Zambia had concerning the Chair's text.  She hoped
that, once the LDCs had finished their further c onsultations, the Council would be able to discuss
those ideas and the Chair's draft decision.
159. The representative of the European Communities said that some of the concerns his
delegation had expressed in the past were of a purely drafting nature, and believed that they could be
sorted out very soon.
160. The Chairman proposed that the Council revert to this matter later in the course of the present
meeting and that, in the meantime, he hold informal co nsultations in order to enable him to put to the
Council a draft decision on the implementation of Article 66.2 of the TRIPS Agreement.
161. Following these consultations, the Chairman said that, as a result of the consultations, he was
pleased to circulate to the Council a draft decision on the implementation of Article 66.2 of the TRIPS
Agreement.  This draft decision was based on the text that he had circulated in document JOB(02)/195
of 26 November 2002 with some alterations to its paragraphs 2, 3(d) and 4, together with a new
subparagraph 3(a).  As regards paragraph 1, he suggested that the first set of new detailed annual
reports to be presented under the proposed decision be submitted at the end of 2003.  He also pointedout that many Members had already submitted detailed reports, and he would expect those reports to
be updated and revised in light of this proposal, if it became a decision.  He proposed that the Council
adopt the draft decision on this basis.
162. The Council so agreed.
2
163. The representative of Zambia, speaking on behalf of the LDC group, thanked the Chair and
all the delegations for having worked very positively with the LDC group on this issue and the
Secretariat for the valuable support it had provided to Members since the negotiations had startedsome three years ago.  He expressed his satisfaction about the fact that the TRIPS Council had now
recorded two positive Doha achievements related to LDCs, namely, the recent extension of
transitional periods together with a waiver concerning pharmaceuticals and the new decision on the
implementation of Article 66.2.
164. The Chairman said that he was also pleas ed that the Council had adopted two important
decisions regarding LDCs, namely, on paragraph 7 of the Doha Declaration on the TRIPS Agreement
and Public Health and on the implementation of Article 66.2.  He shared Zambia's gratitude towards
the Secretariat for helping the Council to find ways of bringing new ideas and finding middle ground.
He was also grateful to all the delegations which had taken part in the negotiations.
                                                     
2 The decision on the "Implementation of Article 66.2 of the TRIPS Agreement" was subsequently
circulated in document IP/C/28.IP/C/M/39
Page 32
165. The representative of the United States hoped this decision would facilitate the effective
implementation of Article 66.2.  She said that her delegation had already been implementing this
provision and believed that the decision would help to further improve implementation of
Article 66.2.  Referring to paragraph 2 of the decision, she expected to hear in the course of future
reviews from the beneficiaries about their experience s so that her delegation would be able to better
examine the effectiveness and the quality of the results of this decision.  Furthermore, she noted that
paragraph 4 contained a provision concerning the review of the arrangements with a view to
improving them.  She believed that an area where it would be possible to improve the review would
be the monitoring of the results of this decision on specific beneficiary countries.  Finally, she
applauded the LDCs, in particularly Edward Ch isanga of Zambia, with whom she had personally
worked in 1999, when he had come up with some ideas concerning Article 66.2.
I. NON-VIOLATION AND SITUATION COMPLAINTS
166. The Chairman recalled that, at Doha, the Ministerial Conference had adopted a decision on
Implementation-Related Issues and Concerns (WT/MIN(01)/17).  Paragraph 11.1 of the Decision
stated that "[t]he TRIPS Council is directed to continue its examination of the 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 Fifth Session of the Ministerial Conference.  It is agreed that,in the meantime, Members will not initiate such complaints under the TRIPS Agreement."  He also
recalled that, at its meeting in September 2002, the Council had set the first meeting of the Council in
2003 as a target date for the submission of specific proposals from delegations.  This, however, was
not to preclude earlier papers or later ones in an effort to find common ground.  Since then, the
Council had received one specific proposal on a recommendation that the Council could make to theCancún Ministerial Conference.  This proposal, introduced by Peru at the Council's previous meeting,
had been circulated in document IP/C/W/385.  Points raised by delegations in the substantive
discussion on this agenda item earlier in the course of the debate had been summarized in a Secretariat
note that was circulated prior to the Council's June 2002 meeting in document IP/C/W/349.
Subsequent discussions had been based on the annotated agenda that had been circulated prior to thatmeeting in document Job(02)/66 raising a number of questions that Members might wish to address.
Summing up, he said that the Council should soon agree on the recommendation it had been
instructed to make to the Cancún Ministerial Conference.  Since the Council had agreed on the date
for the submission of specific proposals on the matter, the Secretariat had received one proposal.  He
invited Members to comment on two issues, namely, how the Council should proceed on this matter
and, second, what in their view should be the contents of the Council's recommendation to the
Ministerial Conference.
167. The representative of Peru recalled that her delegation, together with 13 other developing
countries, had submitted document IP/C/W/385 in September 2002, proposing that the TRIPS Council
recommend to the Fifth Ministerial Conference of the WTO, to be held in Cancún, that
Article XXIII:1(b) and (c) of GATT 1994 be determined inapplicable to the TRIPS Agreement.  Peru
and the other co-sponsors of this proposal believed that this was a highly important issue on which adecision should be adopted in Cancún in order to fulfil the mandate adopted by Ministers in Doha.
She reiterated their view that the application of non-violation and situation complaints was
unnecessary, undesirable and impossible.  First of all, non-violation and situation complaints were
unnecessary to protect the delicate balance of rights and obligations inherent in the TRIPS Agreement,
as reflected in its Preamble and main obligations and flexibilities.  Article 1 of the TRIPS Agreementclearly stated that WTO Members shall not be obliged to provide more extensive protection than that
conferred.  Non-violation and situation complaints were also unnecessary to protect the market-access
commitments under GATT 1994 and GATS, or any other concessions agreed in the Uruguay Round,
since these were adequately protected by those and other Annex 1 agreements.
168. The best way to secure the rights and obligations under the TRIPS Agreement was through
good faith application of its provisions, in accordance with established principles of international law,IP/C/M/39
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as recognized by the Appellate Body.  This did not require recourse to the legally imprecise notion of
non-violation and situation complaints.  She believed that all the benefits negotiated and accruing
under the TRIPS Agreement were applicable automatically, as they were explicitly set out in the
provisions of the Agreement, which encompassed specific rules as well as enforcement of those rules.
In any case, if one wanted to discuss benefits accruing, one would have to deal with issues relating tothe development dimension and technology transfer, since those were the only benefits not made
mandatory by binding provisions.
169. She invited those Members in favour of maintaining this remedy in the context of the TRIPS
Agreement to provide her delegation with concrete examples of situations in which a good faith
application of the provisions of the Agreement would not be sufficient to achieve its objectives.  She
believed that the Council's deliberations would greatly benefit from such concrete examples.
170. Peru and the other co-sponsors also believed that the application of non-violation and
situation complaints was undesirable in the context of the TRIPS Agreement.  As their proposal
stated, the application of such complaints could introduce incoherence among the various WTO
Agreements by allowing something which a WTO Member had agreed to accept in one part of the
single undertaking (e.g. GATT or GATS) to be challenged on the basis that it could nullify or impair
benefits in another area (e.g. TRIPS).  In their view, this remedy could expand the scope of the TRIPSAgreement and introduce legal uncertainty in such a way as to undermine regulatory authority and
infringe sovereign rights by exposing to challenge any measure that affected intellectual property and
that could not have been foreseen at the time of the Uruguay Round.  They also considered that this
remedy could limit use of the flexibilities contai ned in the TRIPS Agreement to secure objectives
relating to public health, nutrition, protection of the environment and biodiversity, technologytransfer, and other issues of public interest in sectors of vital importance to socio-economic, cultural
and technological development.
171. She noted also that other concerns were raised in the proposal Peru had co-sponsored, and
said that she would welcome an explanation from those who defended these ideas as to why this
remedy was desirable and how its undesirable effects could be avoided.  She contended thatapplication of non-violation and situation complaints was impossible within the framework of the
TRIPS Agreement for a series of reasons set forth in the proposal.  In particular, authorizing the non-
violation and situation remedy under the TRIPS Agreement – and with it the right to challenge
measures that were otherwise consistent with WTO obligations – might unbalance the proper
distribution of responsibilities between WTO Members, panels and the Appellate Body.
172. She said that she would welcome evidence from those in favour of this remedy that it would
promote the fundamental objectives of the TRIPS Agreement and of the multilateral trading system.In the absence of such evidence, she believed that the introduction of non-violation and situation
complaints continued to be unnecessary and inconsistent with the interests of WTO Members.
Benefits under the TRIPS Agreement could be adequately protected by applying the text of the
Agreement, in accordance with the principles of international law, and without introducing the legally
uncertain notion of non-violation and situation complaints.  She maintained that it was both necessaryand desirable to agree that such complaints were inapplicable to the TRIPS Agreement.
173. If one could not identify a clear need to in troduce this remedy into the framework of the
TRIPS Agreement, one should at least determine that the scope of application of this kind of
complaint did not extend to the Agreement.  Nevertheless, she believed that the best solution, the one
providing the most legal security and predictability  to the multilateral trading system, was the one set
out in the proposal co-sponsored by Peru.
174. In conclusion, she said that, for all the reasons given above, Peru remained convinced that
application of this remedy was unnecessary, undesirable and impossible in the context of the TRIPS
Agreement.  Therefore, Peru urged the Council to recommend to the Fifth Ministerial Conference ofIP/C/M/39
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the WTO, to be held in Cancún, that Article XXIII:1(b) and (c) of the GATT 1994 be determined
inapplicable to the TRIPS Agreement.
175. The representative of the Czech Republic joined those delegations that had taken the view
that non-violation and situation complaints were inconsistent with the TRIPS Agreement.  She was
aware that the issue of non-violation and situation complaints was delicate and difficult.  Given thecomplexity of the issue, she did not think that al l relevant points had been sufficiently discussed.
There persisted a great uncertainty regarding the app lication of such complaints with respect to the
TRIPS Agreement.  Therefore, the debate on the scope and modalities of non-violation and situation
complaints should be continued in order to clarify whether the availability of such complaints would
be appropriate in the context of the TRIPS Agreement, which was not a market access agreement but
a treaty establishing minimum standards of protection of IPRs.  Moreover, even the possibility of such
an application would have no advantages for Members or positive impact on their mutual trade.  Onthe contrary, it would introduce legal uncertainty and unpredictability.
176. In her view, document IP/C/W385, supported by many Members, created a very good basis
for discussion and for the adoption of a recommendation for the Fifth Ministerial Conference in
Cancún.  It elaborated many poi nts which were reflected also in document IP/C/W/191, which had
been tabled by a number of Members, including the Czech Republic.  She suggested that therecommendation to the Ministerial Conference, which should be approved by consensus, be based on
document IP/C/W/385.  It was her delegation's understanding that, until the Council had duly finished
the debate on the scope and modalities of non-violation complaints or until a consensual proposal to
the Ministerial Conference had been presented, non-violation and situation complaints should not be
applicable to the TRIPS Agreement.
177. The representative of Malaysia, speaking on behalf of the ASEAN group, said that ASEAN
welcomed the remarks made by the delegations of Peru and the Czech Republic to the effect that there
was no justification for non-violation and situation complaints, and that they should not be made
applicable to the TRIPS Agreement.  Non-violation and situation complaints were issues that had not
been tested and were considered extremely complex and difficult.  This task had not been attemptedduring the Uruguay Round nor during the seven years after the implementation of the Uruguay Round
agreements.  This therefore reinforced the view of the complexity of such issues.  All Members
should be able to conclude that the TRIPS Council should recommend to the Ministerial Conference
that non-violation and situation complaints should not apply to the TRIPS Agreement.
178. The representative of Egypt supported Peru's remarks, especially regarding the importance of
making a recommendation to the Fifth Ministerial Conference that non-violation and situation
complaints should not be applicable to the TRIPS Agreement.  It was her delegation's understandingthat non-violation and situation complaints would increase legal uncertainty and that this would make
it harder for Members to rely on the text of the Agreement in defining their rights and obligations.
Given the fact that inherent ambiguity still persisted in the non-violation provisions and the risk that
they might be misused both by panels attempting to resolve disputes under these provisions and by the
WTO system as a whole, she believed that it was inappropriate to introduce these complaints into thesettlement of TRIPS-related disputes.  TRIPS di sputes were totally different from GATT or GATS
disputes because, as negative rights, IPRs only allowed action against infringement by third parties.
IPRs themselves did not confer positive rights such  as the right to produce or to market a product.
179. The representative of Brazil said that his delegation was one of the co-sponsors of document
IP/C/W/385, which had been circulated to the TRIPS Council in September 2002.  In this regard, his
delegation fully associated itself with the statement made by the delegation of Peru.  Brazil held firm
to the belief that there was no room for the application of non-violation and situation complaints in the
context of the TRIPS Agreement for the many reasons exposed in that document.  He stated that
attempts to apply non-violation complaints in the context of the TRIPS Agreement raised a number of
systemic concerns, both for the TRIPS Agreement and for the multilateral trading system.  As wasIP/C/M/39
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stated in document IP/C/W/385, attempts to apply such claims in the context of TRIPS could
introduce incoherence between WTO Agreements, upset the balance of rights and obligations under
the TRIPS Agreement, undermine regulatory authority and limit flexibilities inherent in the TRIPS
Agreement, among other reasons.  For all of these reasons he believed that it was very important that
the TRIPS Council recommend to the Fifth Ministerial Conference that non-violation and situationcomplaints should not be applicable in the context of TRIPS.  He also asked those Members who
wished to retain the right to apply such measures  in the context of TRIPS to provide examples of
situations in which they felt that a good faith app lication of TRIPS provisions would not be sufficient
for the attainment of the objectives of the Agreement.  He believed that if the Members who
supported this view could perhaps elaborate on their concerns, the Council might be able to have a
more interesting debate.
180. The representative of the European Communitie s said that he had little to add to the
discussions that had already taken place.  His delegation already had, two or three years previously,
expressed its concern that the application of non-violation complaints could lead to a lack of clarity
and uncertainty.  This was based on the European Communities' understanding that the TRIPS
Agreement was not an agreement aiming at market access and not linked to any tariff concessions,
which therefore made it fundamentally different from the GATS Agreement.  This conclusion wasalso based on the question of coherence between benefits which accrue under those agreements and
what could be done under the TRIPS Agreement.  He added that he had sympathy for many of the
arguments that had been raised in document IP/C/W/385 submitted by a number of developing
countries.
181. As to the way the Council should proceed on the matter, he believed that Members had three
options:  (i) to recommend the full application of non-violations complaints to the TRIPS Agreement -
however, there appeared to be little support for this  option;  (ii) extend the examination period of the
scope and modalities;  and (iii) close this chapter and agree not to apply non-violation complaints to
the TRIPS Agreement - this option would be in line with the suggestion by a number of developing
countries.
182. Concluding, he said that the his delegation wished to continue examining the scope and
modalities, which it was still reflecting.  His delegation would need until the Council's next formal
meeting in June to decide its view on which of  the two options would be plausible in terms of
proceeding further.
183. The representative of the United States said that in his view the moratorium on non-violation
complaints was extended to the Fifth Ministerial Conference in order to allow Members to submit
proposals on scope and modalities.  His delegation had not seen these proposals and believed that themoratorium should be terminated at the Fifth Ministerial Conference with a recommendation that
non-violation complaints apply equally to the TRIPS Agreement as they do to other WTO
Agreements.  He added that the past GATT and WTO practices and the provisions of Article 26 of the
DSB provided ample guidance for parties to any disputes that might be brought, to panels and to the
Appellate Body.
184. The representative of China associated herself with the remarks made by Peru on behalf of 13
developing countries on non-violation and situat ion complaints and supported document IP/C/W/385.
Non-violation and situation complaints were a mechanism to guarantee the benefits arising from
bilateral negotiations on concessions.  Non-violation complaints were created as a legal basis for
maintaining the balance of interest of each contracting party, especially in relation to concessionsmade.  But even so, only three cases had involved such complaints.  The TRIPS Agreement
established minimum standards for IPRs laws of WTO Members.  There were great differences as
compared to negotiations based on concessions in the area of GATT and GATS.  The TRIPS
Agreement itself contained the balance of rights and obligations.  There were no precedents on the
application of situation complaints even in the area of GATT and GATS.  Non-violation and situationIP/C/M/39
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complaints might cause a systemic concern if appl ied to the TRIPS Agreement.  Her delegation was
therefore of the view that the Council should reco mmend to the Fifth Ministerial Conference that non-
violation and situation complaints should not be applied to the TRIPS Agreement.
185. As a co-sponsor of document IP/C/W/385, the representative of India fully associated himself
with the statement of Peru and supported the r ecommendation to the Fifth Ministerial Conference that
non-violation and situation complaints should not be applicable to the TRIPS Agreement.
186. The representative of Australia said that he supported some of the valid points that had been
raised by a number of Members, including Peru and other developing countries, concerning the lack
of clear rationale for applying non-violation complaints under TRIPS.  He supported a further
examination of these complex issues, as required by the Doha mandate, to address many of the points
that had been made by some Members in the discussions held so far, particularly those relating to
legal uncertainty.  He drew Members' attention to a paper on this issue that Australia had submitted inSeptember 2002.  This paper was not a formal position paper but intended to facilitate discussion of
the key issues.
187. The representative of Nigeria associated himself with the statement of Peru and supported the
recommendation to the Fifth Ministerial Conference that non-violation and situation complaints
should not be applicable to the TRIPS Agreement.
188. The Chairman reminded delegations that there was only one more formal meeting for the
Council to agree on its recommendations in time for the Cancún Ministerial Conference, as called for
in paragraph 11.1 of the Decision on Implementation-Related Issues and Concerns.  He therefore
urged Members to make an effort to come to a decision regarding what type of report should be sent
to Ministers in Cancún.
189. The Council took note of the statements.
J. ELECTRONIC COMMERCE
190. The Chairman said that no communications on this matter had been received from Members.
He recalled that, at its meeting in March 2002, the Secretariat had been requested to update its factual
background note on intellectual property and electronic commerce circulated in documentIP/C/W/128 in February 1999.  The representative of the Secretariat informed the Council that, due to
the heavy workload and shortage of staff resources, it had been necessary to postpone the preparationof the updated background note.
191. The representative of the United States said that in all intellectual property systems the
application of TRIPS provisions in the digital environment was necessary and should be encouraged.
The United States continued to support the statement put forward by Australia in its submission of
7 December 2000 (IP/C/W/233) that it was unnecessary to create a whole new, parallel set ofintellectual property norms and principles in the context of the WTO because of the increased
utilization of electronic commerce technologies.  The theft of copyrighted materials over the Internet
was widespread and growing.  What was merely harmful to a creator offline was devastating online.
The United States was very happy that the WIPO Copyright Treaty and the WIPO Performances and
Phonogram Treaty had come into force and were seei ng growth in their memberships.  These treaties,
often referred to together as the "Internet treaties," set down international norms aimed at preventing
unauthorized access to and use of creative works on the Internet or other digital networks.  While it
would be premature at this time to study other emerging intellectual property issues related to
electronic commerce to determine whether it would be appropriate to develop additional norms in
relation to such issues, the proposal by Australia to consider the possibilities of linking the WIPOInternet treaties to the TRIPS Agreement was appealing.  The United States wholeheartedly supportedIP/C/M/39
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Australia's proposal to encourage Members to consider revising their national laws to bring them in
line with the WIPO treaties.
192. The Council took note of the statements.
K. REVIEW OF THE APPLICATION OF THE PROVISIONS OF THE SECTION ON GEOGRAPHICAL
INDICATIONS UNDER ARTICLE 24.2
193. The Chairman recalled that, at its meeting in March 2002, the Council had urged those
Members that had not provided responses to the checklist of questions contained in document IP/C/13
and Add.1 to do so before the present meeting, if  possible.  The Secretariat had issued airgram
WTO/AIR/1756 on 26 March 2002 to remind Members of the Council's invitation to provide this
information.  Since the Council's meeting in November 2002, further responses had been received
from Slovenia, and circulated in addendum 27 to document IP/C/W/117.  To date, the Council had
received responses to the Checklist from 44 Members.  These responses, except for the six mostrecent ones, had been summarized in a Secretariat note contained in document IP/C/W/253.
194. The representative of the European Communities said that, at the Council's last two meetings,
his delegation had expressed its view that a more structured debate was needed under this agenda
item.  There were many delegations that seemed not to understand some aspects of the TRIPS regime
on GIs and had a number of questions on how other Members had implemented those obligations.  Hebelieved that comfort should be given to those delegations.  With this aim, his delegation had
requested at the Council's last meeting other Memb ers to come up with proposals on how to conduct
the work under this agenda item.  None had been made so far.  He wondered whether the Chair had, at
this stage, any ideas on how to proceed on this debate.
195. The Chairman said that the WTO was a member-driven organization, and encouraged
Members to consider how they would like to deal with this matter.
196. The representative of the United States said that, during the Council's discussions on
Article 23.4, his delegation had already indicated that  it believed that the Council should follow the
proposal made by Australia to "walk through" the provisions on geographical indications paragraph
by paragraph.  Were developing country Members to provide responses to the checklist of questionson geographical indications, the Council would be provided with a more complete picture of the
variety of ways in which Members had been implementing their obligations in this area and, therefore,
this would make such a discussion more meaningful.  His delegation was particularly interested in this
regard to see how countries ensured that protection was available for nationals of other Members to
protect their GIs, since, as his delegation had already noted before the Council, not all WTO Members
already provided such protection.
197. The representative of Australia said that his country had also been interested to see a more
substantial discussion under this agenda item. Members might wish to steer the discussion towards a
more substantive examination of the underlining interests that the GI provisions sought to both
promote and balance.  In that regard, Australia ha d previously suggested a more structured discussion.
His delegation had many questions regarding GIs and it believed that it would be useful to have a
productive discussion in a more structured way, perhaps along the lines of what had been suggestedby the European Communities.  This was because a more general discussion did not seem to get into
the core of the issue.  He was interested in any views that other Members might have on how the
Council could make this discussion more productive.
198. The Chairman said that he would convey to his successor the interest expressed by some
delegations to have a more structured discussion on this agenda item and ask his successor to consult
Members to see what their thinking was in this regard.IP/C/M/39
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199. The Council took note of the statements.
L. TECHNICAL COOPERATION AND CAPACITY -BUILDING
200. The Chairman recalled that the WIPO and WTO Secretariats had launched on 14 June 2001 a
Joint Initiative on Technical Cooperation for Least-Developed Countries.  Since then, the WTO
Secretariat had kept the Council informed a bout the implementation of the Joint Initiative.
201. The representative of the Secretariat said that under the Joint Initiative the two organizations
had organized a joint regional workshop in cooperation with the Government of Bangladesh for the
LDCs in the Asian-Pacific region, which was held on 11-14 December 2002 in Dhaka, Bangladesh.
He thanked the Government of Bangladesh for hosting this workshop and Ambassador Toufiq Ali for
his active participation in this event, which had contributed significantly towards its success.  There
were two elements under the Joint Initiative:  one was regional workshops and the other specific
activities related to the needs of individual countries.  As to the latter, he informed the Council thatfrom 18-25 March the WIPO and the WTO were holding two national seminars in cooperation with
the national authorities of Benin and Mali.
202. The representative of the WIPO joined the WTO Secretariat in thanking the Government and
Ambassador of Bangladesh for their involvement in the WTO-WIPO joint regional workshop.  She
said that Organizations had invited the WHO to be represented in the Bangladesh meeting, as they haddone in respect of the joint regional seminar in Tanzania.  Unfortunately, it had not been able to be
present this time.  She also informed the Council that many extremely positive reports had been
received from the participants of the WIPO-WTO joint meetings.  She noted that this showed the
importance of such activities between the two Organizations and thanked those Members who had
expressly shown their appreciation.  This encouraged  the two Organizations to hold such meetings in
the future and to reaffirm their commitment to do so.
203. The Council took note of the statements.
M. INFORMATION ON RELEVANT DEVELOPMENTS ELSEWHERE IN THE WTO
204. The Chairman said that Armenia had become the 145th Member of the WTO on
5 February 2003.  In paragraph 197 of the Report of the Working Party on the Accession of the
Republic of Armenia (WT/ACC/ARM/ 23), the representative of Armenia had stated that "[t]he
Government of Armenia would apply the provisi ons of the Agreement on TRIPS no later than the
date of its accession to the WTO, without recourse to any transitional periods".  This commitment had
been incorporated in paragraph 2 of the Protocol of Accession of the Republic of Armenia to the
WTO (WT/L/506).
N. OBSERVER STATUS FOR INTERNATIONAL INTERGOVERNMENTAL ORGANIZATIONS
205. The Chairman said that the list of the 16 pending requests for observer status in the TRIPS
Council by other intergovernmental organizations was contained in document IP/C/W/52/Rev.10.  He
recalled that, at the Council's meeting in June 200 2, he had proposed, following consultations, that the
Council grant observer status to ARIPO, OAPI and the GCC on an ad hoc  basis, i.e. subject to review
in the light of any further guidance from the General Council on the grant of observer status to other
intergovernmental organizations.  However, at that time, not all delegations were prepared to take adecision on the matter, and the situation also remained the same at the September and November
meetings.  He asked delegations whether there were any developments in their thinking concerning
the pending requests by these three organi zations or by any other organizations.IP/C/M/39
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206. The representative of Egypt said that her country's position on this item had not changed.  Her
delegation did not object to the granting of observer status to any of the organizations in question,
however it could not support a selective decision .
207. The Council took note of the statements.
O. OTHER BUSINESS
208. No matters were raised under other business.
P. ELECTION OF CHAIRPERSON
209. The Chairman said that, at its meeting of 10 February 2003, the General Council had noted
the consensus on the slate of names of chairpersons for WTO bodies.  On the basis of the
understanding reached, he proposed that the Council for TRIPS elect
H.E. Ambassador Vanu Gopala Menon of Singapore as its Chairman for the coming year by
acclamation.
210. The Council so agreed.
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