WORLD TRADE
ORGANIZATIONIP/C/W/405
28 August 2003
(03-4498)
Council for Trade-Related Aspects
of Intellectual Property Rights
IMPLEMENTATION OF PARAGRAPH 6 OF THE DOHA DECLARATION ON
THE TRIPS AGREEMENT AND PUBLIC HEALTH
Draft Decision of […] 2003
At its meeting of 28 August 2003, the Council for TRIPS approved the following draft
decision and agreed to forward it to the General Council for adoption.
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The General Council,
Having regard to paragraphs 1, 3 and 4 of Article IX of the Marrakesh Agreement
Establishing the World Trade Organization ("the WTO Agreement");
Conducting the functions of the Ministerial Conference in the interval between meetings
pursuant to paragraph 2 of Article IV of the WTO Agreement;
Noting  the Declaration on the TRIPS Agreement and Public Health (WT/MIN(01)/DEC/2)
(the "Declaration") and, in particular, the instruct ion of the Ministerial Conference to the Council for
TRIPS contained in paragraph 6 of the Declaration to find an expeditious solution to the problem of
the difficulties that WTO Members with insufficient or no manufacturing capacities in thepharmaceutical sector could face in making effective use of compulsory licensing under the TRIPS
Agreement and to report to the General Council before the end of 2002;
Recognizing, where eligible importing Members seek to obtain supplies under the system set
out in this Decision, the importance of a rapid response to those needs consistent with the provisionsof this Decision;
Noting  that, in the light of the foregoing, exceptional circumstances exist justifying waivers
from the obligations set out in paragraphs (f) and (h) of Article 31 of the TRIPS Agreement with
respect to pharmaceutical products;
Decides  as follows:
1. For the purposes of this Decision:
(a) "pharmaceutical product" means any patented product, or product manufactured
through a patented process, of the pharmaceutical sector needed to address the public
health problems as recognized in paragraph 1 of the Declaration.  It is understood thatIP/C/W/405
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active ingredients necessary for its manufacture and diagnostic kits needed for its use
would be included1;
(b) "eligible importing Member" means any least-developed country Member, and any
other Member that has made a notification2 to the Council for TRIPS of its intention
to use the system as an importer, it being understood that a Member may notify at anytime that it will use the system in whole or in a limited way, for example only in the
case of a national emergency or other circ umstances of extreme urgency or in cases
of public non-commercial use.  It is noted that some Members will not use the system
set out in this Decision as importing Members
3 and that some other Members have
stated that, if they use the system, it would be in no more than situations of national
emergency or other circumstances of extreme urgency;
(c) "exporting Member" means a Member using the system set out in this Decision to
produce pharmaceutical products for, and export them to, an eligible importing
Member.
2. The obligations of an exporting Member under Article 31(f) of the TRIPS Agreement shall be
waived with respect to the grant by it of a compulsory licence to the extent necessary for the purposes
of production of a pharmaceutical product(s) and its export to an eligible importing Member(s) inaccordance with the terms set out below in this paragraph:
(a) the eligible importing Member(s)
4 has made a notification2 to the Council for TRIPS,
that:
(i) specifies the names and expected quantities of the product(s) needed5;
(ii) confirms that the eligible importing Member in question, other than a
least-developed country Member, has established that it has insufficient or no
manufacturing capacities in the pharmaceutical sector for the product(s) in
question in one of the ways set out in the Annex to this Decision;  and
(iii) confirms that, where a pharmaceutical product is patented in its territory, it
has granted or intends to grant a compulsory licence in accordance withArticle 31 of the TRIPS Agreement and the provisions of this Decision
6;
(b) the compulsory licence issued by the exporting Member under this Decision shall
contain the following conditions:
(i) only the amount necessary to meet the needs of the eligible importing
Member(s) may be manufactured under the licence and the entirety of this
                                                     
1 This subparagraph is without prejudice to subparagraph 1(b).
2 It is understood that this notification does not need to be approved by a WTO body in order to use the
system set out in this Decision.
3 Australia, Austria, Belgium, Canada, Denmark, Fi nland, France, Germany, Greece, Iceland, Ireland,
Italy, Japan, Luxembourg, the Netherlands, New Zealan d, Norway, Portugal, Spain, Sweden, Switzerland, the
United Kingdom and the United States.
4 Joint notifications providing the information required under this subparagraph may be made by the
regional organizations referred to in paragraph 6 of this Decision on behalf of eligible importing Members using
the system that are parties to them, with the agreement of those parties.
5 The notification will be made available publicly by the WTO Secretariat through a page on the WTO
website dedicated to this Decision.
6 This subparagraph is without prejudice to Article 66.1 of the TRIPS Agreement.IP/C/W/405
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production shall be exported to the Member(s) which has notified its needs to
the Council for TRIPS;
(ii) products produced under the licence shall be clearly identified as being
produced under the system set out in this Decision through specific labelling
or marking.  Suppliers should distinguish such products through specialpackaging and/or special colouring/shaping of the products themselves,
provided that such distinction is feasible and does not have a significant
impact on price;  and
(iii) before shipment begins, the licensee shall post on a website
7 the following
information:
- the quantities being supplied to each destination as referred to in
indent (i) above;  and
- the distinguishing features of the product(s) referred to in indent (ii)
above;
(c) the exporting Member shall notify8 the Council for TRIPS of the grant of the licence,
including the conditions attached to it.9  The information provided shall include the
name and address of the licensee, the product(s) for which the licence has beengranted, the quantity(ies) for which it has been granted, the country(ies) to which the
product(s) is (are) to be supplied and the duration of the licence.  The notification
shall also indicate the address of the website referred to in subparagraph (b)(iii)
above.
3. Where a compulsory licence is granted by an exporting Member under the system set out in
this Decision, adequate remuneration pursuant to Article 31(h) of the TRIPS Agreement shall be paid
in that Member taking into account the economic value to the importing Member of the use that has
been authorized in the exporting Member.  Wh ere a compulsory licence is granted for the same
products in the eligible importing Member, the obligation of that Member under Article 31(h) shall be
waived in respect of those products for which remuneration in accordance with the first sentence ofthis paragraph is paid in the exporting Member.
4. In order to ensure that the products imported under the system set out in this Decision are
used for the public health purposes underlying their importation, eligible importing Members shall
take reasonable measures within their means, propo rtionate to their administrative capacities and to
the risk of trade diversion to prevent re-exportation of the products that have actually been imported
into their territories under the system.  In the ev ent that an eligible importing Member that is a
developing country Member or a least-developed country Member experiences difficulty inimplementing this provision, developed country Me mbers shall provide, on request and on mutually
agreed terms and conditions, technical and financial cooperation in order to facilitate its
implementation.
                                                     
7 The licensee may use for this purpose its own website or, with the assistance of the WTO Secretariat,
the page on the WTO website dedicated to this Decision.
8 It is understood that this notification does not need to be approved by a WTO body in order to use the
system set out in this Decision.
9 The notification will be made available publicly by the WTO Secretariat through a page on the WTO
website dedicated to this Decision.IP/C/W/405
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5. Members shall ensure the availability of effective legal means to prevent the importation into,
and sale in, their territories of products produced under the system set out in this Decision and
diverted to their markets inconsistently with its provisions, using the means already required to be
available under the TRIPS Agreement.  If any Member considers that such measures are proving
insufficient for this purpose, the matter may be re viewed in the Council for TRIPS at the request of
that Member.
6. With a view to harnessing economies of scale for the purposes of enhancing purchasing
power for, and facilitating the local production of, pharmaceutical products:
(i) where a developing or least-developed country WTO Member is a party to a regional
trade agreement within the meaning of Article XXIV of the GATT 1994 and the
Decision of 28 November 1979 on Differential and More Favourable Treatment
Reciprocity and Fuller Participation of Developing Countries (L/4903), at least halfof the current membership of which is made up of countries presently on the United
Nations list of least-developed countries, the obligation of that Member under
Article 31(f) of the TRIPS Agreement shall be waived to the extent necessary to
enable a pharmaceutical product produced or imported under a compulsory licence in
that Member to be exported to the markets of those other developing orleast-developed country parties to the regional trade agreement that share the health
problem in question.  It is understood that this will not prejudice the territorial nature
of the patent rights in question;
(ii) it is recognized that the development of  systems providing for the grant of regional
patents to be applicable in the above Members should be promoted.  To this end,developed country Members undertake to provide technical cooperation in
accordance with Article 67 of the TRIPS Agreement, including in conjunction with
other relevant intergovernmental organizations.
7. Members recognize the desirability of promoting the transfer of technology and capacity
building in the pharmaceutical sector in order to overcome the problem identified in paragraph 6 ofthe Declaration.  To this end, eligible importing Members and exporting Members are encouraged to
use the system set out in this Decision in a way which would promote this objective.  Members
undertake to cooperate in paying special attention to the transfer of technology and capacity building
in the pharmaceutical sector in the work to be undertaken pursuant to Article 66.2 of the TRIPS
Agreement, paragraph 7 of the Declaration and an y other relevant work of the Council for TRIPS.
8. The Council for TRIPS shall review annually th e functioning of the system set out in this
Decision with a view to ensuring its effective operation and shall annually report on its operation to
the General Council.  This review shall be deemed to fulfil the review requirements of Article IX:4 of
the WTO Agreement.
9. This Decision is without prejudice to the rights, obligations and flexibilities that Members
have under the provisions of the TRIPS Agreement other than paragraphs (f) and (h) of Article 31,
including those reaffirmed by the Declaration, and to their interpretation.  It is also without prejudiceto the extent to which pharmaceutical products produced under a compulsory licence can be exported
under the present provisions of Article 31(f) of the TRIPS Agreement.
10. Members shall not challenge any measures taken in conformity with the provisions of the
waivers contained in this Decision under subparagraphs 1(b) and 1(c) of Article XXIII of
GATT 1994.IP/C/W/405
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11. This Decision, including the waivers granted in it, shall terminate for each Member on the
date on which an amendment to the TRIPS Agreement replacing its provisions takes effect for that
Member.  The TRIPS Council shall initiate by the end of 2003 work on the preparation of such an
amendment with a view to its a doption within six months, on the understanding that the amendment
will be based, where appropriate, on this Decision and on the further understanding that it will not bepart of the negotiations referred to in paragraph 45 of the Doha Ministerial Declaration
(WT/MIN(01)/DEC/1).IP/C/W/405
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ANNEX
Assessment of Manufacturing Capacities in the Pharmaceutical Sector
Least-developed country Members are deemed to have insufficient or no manufacturing
capacities in the pharmaceutical sector.
For other eligible importing Members insufficient or no manufacturing capacities for the
product(s) in question may be established in either of the following ways:
(i) the Member in question has established that it has no manufacturing capacity in the
pharmaceutical sector;
OR
(ii) where the Member has some manufacturing capacity in this sector, it has examined
this capacity and found that, excluding any capacity owned or controlled by the
patent owner, it is currently insufficient fo r the purposes of meeting its needs.  When
it is established that such capacity has become sufficient to meet the Member's needs,
the system shall no longer apply.
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