 
 RESTRICTED  WORLD TRADE  
ORGANIZATION  IP/C/M/45 
27 October 2004 
 
 (04-4557) 
Council for Trade-Related Aspects 
of Intellectual Property Rights  
 
 
 
 
MINUTES OF MEETING 
 
Held in the Centre William Rappard  
on 21 September 2004  
 
Interim Chairperson:  Ambassador Puangrat Asavapisit (Thailand) 
 
The present document contains the record of  the discussion which took place during the 
TRIPS Council meeting held on 21 September 2004. 
Subjects discussed  Page nos.  
A. ELECTION OF CHAIRPERSON .......................................................................................................2  
B. NOTIFICATIONS UNDER PROVISIONS OF THE AGREEMENT ........................................................2  
C. FOLLOW -UP TO REVIEWS OF NATIONAL IMPLEMENTING LEGISLATION ALREADY 
UNDERTAKEN ..............................................................................................................................2  
D. REVIEW OF THE PROVISIONS OF ARTICLE 27.3( B)......................................................................4  
E. RELATIONSHIP BETWEEN THE TRIPS AGREEMENT AND THE CONVENTION ON 
BIOLOGICAL DIVERSITY .............................................................................................................4  
F. PROTECTION OF TRADITIONAL KNOWLEDGE AND FOLKLORE ...................................................4  
G. REVIEW OF THE IMPLEMENTATION OF THE AGREEMENT UNDER ARTICLE 71.........................12  
H. REVIEW OF THE APPLICATION OF THE PROVISIONS OF THE SECTION ON 
GEOGRAPHICAL INDICATIONS UNDER ARTICLE 24.2...............................................................12  
I. DECISION ON THE IMPLEMENTATION OF PARAGRAPH 6 OF THE DOHA DECLARATION 
ON THE TRIPS AGREEMENT AND PUBLIC HEALTH ....................................................................12  
J. REVIEW UNDER PARAGRAPH 2 OF THE DECISION ON THE IMPLEMENTATION OF 
ARTICLE 66.2  OF THE TRIPS AGREEMENT .................................................................................15  
K. TECHNICAL COOPERATION AND CAPACITY -BUILDING ............................................................16  
L. REQUEST FROM THE MALDIVES FOR AN EXTENSION OF THE TRANSITION PERIOD 
UNDER ARTICLE 66.1  OF THE TRIPS AGREEMENT ....................................................................17  
M. FOLLOW -UP TO THE DECISION ON THE DOHA WORK PROGRAMME ADOPTED BY THE 
GENERAL COUNCIL ON 1 AUGUST 2004 ...................................................................................17  
N. INFORMATION ON RELEVANT DEVELOPMENTS ELSEWHERE IN THE WTO ..............................18  
O. OBSERVER STATUS FOR INTERNATIONAL INTERGOVERNMENTAL ORGANIZATIONS ...............18  
P. OTHER BUSINESS ......................................................................................................................18  IP/C/M/45 
Page 2  
 
 A. E
LECTION OF CHAIRPERSON  
1. Since the former Chair of the TRIPS Council ha d relinquished his post and the Chair of the 
General Council had not yet been in a position to conclude his consultations on a new Chair, the 
Council elected the Chairperson of the Trade Policy Review Body, H.E. Mrs Puangrat Asavapisit of 
Thailand, to act as interim Chair of the Council for the meeting. 
B. NOTIFICATIONS UNDER PROVISIONS OF THE AGREEMENT  
2. The Chairperson  drew attention to the latest Secretariat note reflecting the status of the 
notifications of laws and regula tions under Article 63.2 received from Members whose transitional 
periods under Article 65.2 or 65.3  had expired on 1 January 2000 or who had acceded to the WTO 
after that date (JOB(04)/117).  The note showed fro m which of the Members in question notifications 
had been received as at 3 September 2004.  Among th e 81 Members in question, there remained three 
who had not yet submitted any notification concerni ng their implementing legislation.  These were 
Papua New Guinea;  Saint Kitts and Nevis;  and Sa int Vincent and the Grenadines.  As requested by 
the Council at its last meeting, the Chair had written to these three Members concerning the notification of their TRIPS implementing legislation. 
3. Since its meeting in June, the Council had r eceived the following supplements and updates to 
earlier notifications.  China had notified regulati ons on customs protection for intellectual property 
rights;  the Slovak Republic had notified regulations  on designs, designations of origin, geographical 
indications and trademarks;  Saint Lucia had notified a number of laws in the areas of copyright and industrial property;  Uruguay had notified the texts of a Law of January 2003 on Copyright and 
Related Rights and regulations relating to that law;   Japan had notified updated texts of a number of 
laws in the area of copyright and industrial prope rty, as well as enforcement;  and Hong Kong, China 
had notified recent amendments to its copyright law.   Norway had notified amendments to its patent 
legislation made pursuant to the General Council Decision on the Implementa tion of Paragraph 6 of 
the Doha Declaration on the TRIPS Agreement and Public Health, background information on which 
was contained in document IP/C/W/427.  These notifi cations were being circulated in the IP/N/1/- 
series of documents. 
4. The Chairperson urged those Members whose in itial notifications remained incomplete to 
submit the outstanding material wit hout delay.  She reminded the other Members of their obligation to 
notify any subsequent amendments of their laws a nd regulations without delay after their entry into 
force. 
5. Since the Council's meeting in June, updates to notifications of contact points under 
Article 69 had been received from El Salvador;  Ma cao, China;  and Turkey.  These notifications had 
been circulated in document IP/N/3/Rev.7/Add.3.   There were now 120 Members who had notified 
contact points under Article 69.   
6. The representative of Kenya
 said that there had been some changes to Kenya's notification 
and that he would provide details of these soon.  He said that he would also provide a correction to the 
information on Kenya's notifications, contained in document JOB(04)/68, which at present was not 
entirely accurate. 
7. The Council took note  of the statements made. 
C. FOLLOW -UP TO REVIEWS OF NATIONAL IMPLEMENTING LEGISLATION ALREADY 
UNDERTAKEN  
8. The Chairperson  said that the Secretariat had updated its informal note that listed all the  IP/C/M/45 
 Page 3 
 
 
 outstanding material required to complete the reviews that the Council had already undertaken 
(JOB(04)/123).  The table attached to the note lis ted 16 Members whose reviews had been initiated at 
the Council's meetings since April 2001 but which remained on the Council's agenda.  The table 
referred to submissions, including both resp onses and follow-up questions, received as at 
13 September 2004. 
9. Since the circulation of the note, Nigeria had provided responses to all of the outstanding 
questions and all of these responses had been circul ated to Members prior to the meeting (documents 
IP/Q/NGA/1 and Add. 1).  The Chairperson suggested that the regular review of the legislation of 
Nigeria be deleted from the agenda, it being understood that any delegation could revert to any matter 
stemming from this review at any time. 
10. The Council so agreed . 
11. The Chairperson  recalled that, at its last meeting, the Council had initiated the review of 
national implementing legislation of Armenia.  Since that meeting, Switzerland had posed two 
follow-up questions to Armenia (IP/C/W/419/Add.2) .  The Former Yugoslav Republic of Macedonia 
had provided responses to the follow-up question po sed to it by Switzerland.  However, since the 
circulation of the updated Secretariat note, Switzer land had posed one more follow-up question to it 
(IP/C/W/419/Add.3).  In addition, Pakistan had ju st provided a response to the last outstanding 
question.1 
12. The representative of Switzerland  thanked the delegation of Pakist an for its response.  He also 
thanked the delegation of the Former Yugoslav Re public of Macedonia for its response to the follow-
up question and said that his delegation was looking fo rward to a clarification of that reply.   
13. The Chairperson  said that the Secretariat note also listed six Members 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.  She said that in this connection, 
certain questions had been raised with regard to  the implementing legislation of these countries.  
Since the Council's last meeting, Japan had posed further follow-up questions to China 
(IP/C/W/362/Add.6).  
14. The representative of Japan  expressed his appreciation of the response from China, which his 
delegation was still studying.  He wished to reserve  his right to put further questions to China. 
15. The representative of China  said that the outstanding res ponse to the Japanese follow-up 
question was being finalized in its English versi on and that it would be provided as soon as possible. 
16. The Chairperson  urged Members to provide the outstanding material as soon as possible.  She 
suggested that the Council request the Secretariat to update its note on pending reviews before the 
next meeting and that the Council revert to this matter at its next meeting. 
17. The Council took note  of the statements made and agreed  to proceed as suggested by the 
Chair. 
                                                      
1 Subsequently circulated in IP/Q/PAK/1/Add.1. IP/C/M/45 
Page 4  
 
 D. R
EVIEW OF THE PROVISIONS OF ARTICLE 27.3( B) 
E. RELATIONSHIP BETWEEN THE TRIPS AGREEMENT AND THE CONVENTION ON BIOLOGICAL 
DIVERSITY  
F. PROTECTION OF TRADITIONAL KNOWLEDGE AND FOLKLORE  
18. The Chairperson  suggested that, since the practice in the Council's past meetings had been 
that the delegates address these th ree agenda items together, the Council again take them up at the 
same time.  She informed the Council that it had ju st received a new submission from Brazil, India, 
Pakistan, Peru, Thailand and Venezuela entitled "Ele ments of the Obligation to Disclose the Source 
and Country of Origin of Biological Resource and/ or Traditional Knowledge Used in an Invention" 
(IP/C/W/429).2  She also recalled that, at its meeting in June, the Council had agreed to revert at the 
present meeting to questions raised concerning a paper presented by Switzerland at that meeting 
(IP/C/W/423).  She recalled that, at that meeting,  the Chair had reported on his consultation on how 
future work on these items should be organized.  He  had said that, despite the efforts made by all 
parties, the consultations had not de veloped to a point where he would have been able to put a set of 
suggestions to the Council.  After discussing the matt er, the Council had agreed that the Chair should 
continue these consultations.  However, in the abse nce of a Chair, it had not yet been feasible to 
pursue these consultations.  
19. The representative of India  introduced the paper submitted by Brazil, India, Pakistan, Peru, 
Thailand and Venezuela (IP/C/W/429).  He r ecalled that, by means of two communications, 
IP/C/W/420 and Add.1 dated 2 Marc h 2004 and 5 March 2004 resp ectively, the delegations of 
Bolivia, Brazil, Cuba, Ecuador, India, Peru, Tha iland and Venezuela had submitted a Checklist of 
Issues on the relationship between the TRIPS Agreem ent and the Convention on Biological Diversity 
(CBD) (hereinafter "Checklist") with the aim of  facilitating more focused, structured and result-
oriented discussions on this issue.  Most Members had agreed that the Checklist identified in that 
communication formed a good basis for further delib erations in the Council and some had already 
made presentations based on it at the last m eeting.  He said that the present communication 
(IP/C/W/429) was aimed at carrying the process forwar d by developing some of the issues relating to 
the first of the three sets of issues identified in the Checklist, i.e. the disclosure of source and country of origin of biological resources and/or traditional knowledge used in inventions.  He said 
that the communication developed five issues, which had been raised in the discussion on the Checklist in the past.  
20. The first issue dealt with how such an ob ligation for disclosure would help in better 
examination of patents and in preventing cases of bad patents.  A number of cases had been 
documented, such as those relating to neem, turmer ic, hoodia and ayahuasca, where patents had been 
issued with respect to genetic resources and produc ts or processes that had been known and used by 
traditional or local communities for many years a nd even centuries.  These cases, involving various 
levels of bio-piracy, had raised serious questions about the quality of patent examination.  While a 
number of mechanisms to improve the availability of  prior art information with respect to genetic 
resources and traditional knowledge used in patent examination had been suggested, none of these 
mechanisms was likely to make available all prior ar t information in the context of important cultural 
and religious sensitivities associated in particul ar with traditional knowledge.  Many of these 
mechanisms were voluntary and provided no guarantee that in fact patent examiners in different 
countries would consider this information in their prior art search.  Consequently, a legally binding 
obligation to disclose the source and country of origin of biological resources and/or traditional 
knowledge used in inventions would he lp ensure that all relevant prio r art information is available to 
the patent examiners.  Furthermore, disclosure w ould help determine whether the claimed invention 
                                                     
 
2 Subsequently recirculated as IP/C/W/429/Rev.1.  IP/C/M/45 
 Page 5 
 
 
 was excluded from patentability under paragraphs 2 and 3 of Article 27 of the TRIPS Agreement and 
would serve as part of a process to systematize available information of biological resources and 
traditional knowledge.  Lastly, the disclosure requireme nts would also be useful in cases of challenges 
to patent grants, disputes on inventorship or entitle ment to a claimed invention and in infringement 
cases, all of which formed important components of pr ocesses to ensure patent quality.  He added that 
disclosure requirements of various types were alr eady an accepted norm in international patent law 
practice. 
21. The second issue concerned the meaning of disclosure of source and country of origin of 
biological resources and of the traditional knowledge u sed in the invention.  He said that the purpose 
of disclosure was primarily to prevent bio-piracy, to  prevent the granting of bad patents and to curb 
misappropriation.  It could also help in pursu ing prior informed consent and benefit-sharing 
obligations under the appropriate na tional regimes.  Such disclosure obligations would be triggered 
wherever the biological resources and/or traditional knowledge were used:  (a) to form part of the 
claimed invention;  (b) during the process of deve loping the claimed invention;  (c) as a necessary 
prerequisite for the development of  the invention;  (d) to facilitate  the development of the invention 
and (d) as necessary background material for the deve lopment of the invention.  He said that the 
communication showed that the administrative a nd cost burden on patent applicants would be 
minimal as the information to be disclosed would most  likely be available to the patent applicant as 
part of the process of developing an invention.  
22. The third issue concerned the legal effects of wrongful disclosure or non-disclosure.  In this 
regard, he said, the paper proposed that the di sclosure requirement would have both formal and 
substantive components and implications.  The nature of the legal effect of insufficient, wrongful or 
non-disclosure would depend on whether one was deali ng with a formal or substantive component of 
the disclosure or whether it was at the level of pre- or post-grant.   Where such failure to disclose was 
discovered before the examination or grant of a pate nt, the legal effect could be that the application 
would not be processed any further until the necessary information had been submitted.  This could be 
accompanied with penalties and time-limits within  which the proper disclosure should be made, 
failing which the application could be deemed withdrawn.  The non-processing of the patent 
application was justified as such failure to di sclose affected the determination of prior art, 
inventorship or entitlement to the claimed inventi on, the scope of the claim and/or whether it was 
necessary for understanding or carrying out the inve ntion.  Where such failure to disclose was 
discovered after the grant of a patent, the legal effe ct could include revocation of the patent in cases 
where it was determined that proper disclosure would ha ve led to the refusal to grant the patent, or in 
cases where there was a fraudulent inte ntion.  In addition to revocation, criminal and/or administrative 
sanctions could be imposed, for example, where such failure to disclose amounted to a false 
representation.  The legal effect could also include fu ll or partial transfer of the rights to the invention 
where complete disclosure would have shown that  another person or community or governmental 
agency was the inventor or part-inventor, or would otherwise be entitled to all or part of the claimed 
invention.  In addition, the legal effect could incl ude narrowing the scope of th e claims where parts of 
the claims were affected due to lack of novelty or fraudulent intention or where full disclosure would 
have led to refusal to admit those parts of the claims. 
23. He said that the above-mentioned concepts would be further developed when Members 
reflected on the mechanism to impl ement such concepts and could include judicial review.  While a 
certain flexibility could be incorporated as to th e exact legal effect of each infraction, Members 
should nevertheless have an obligation to ensure th at the effect of such a failure to disclose was 
effective in terms of its deterrent, compensatory and equity value.  He said that, apart from the above, 
there could be separate and additional legal effects related to enforcing obligations on prior informed 
consent (PIC) and benefit sharing (BS) which would be introduced in later submissions. IP/C/M/45 
Page 6  
 
 24. Regarding the fourth issue as to who should bear the burden of proof, he said that an 
application would be deemed prima facie to comply with the disclosure requirement if it contained a 
declaration in the prescribed form indicating the source and country of origin of the biological resources and/or traditional knowledge.  However the applicant would be required to positively 
discharge the burden of proof that the genetic r esources and/or traditional knowledge had been legally 
and legitimately accessed and that benefit-sharing had taken place or would take place if a patent was 
granted with respect to the invention covered.   
25. The fifth and final issue related to the manner in which the proposed obligation of disclosure 
should be introduced into the TRIPS Agreement.  In th is regard he said that a positive obligation to be 
imposed on patent applicants was envisaged to be  introduced into the TRIPS Agreement either by 
appropriately amending the existi ng provisions or by introducing a new article into the Agreement 
and that a number of Members already required pate nt applicants in their territories to make such 
disclosures.  However, because of the global dime nsion of bio-piracy, relying on national measures 
alone was not sufficient to address the problem.   
26. The representative of Thailand
 said his delegation was of the view that the TRIPS Agreement 
and Article 15 of the CBD should be implemented in a mutually supportive manner.  He recalled  that 
Thailand had co-sponsored the Checklist, together  with many developing country Members.  
However, the Checklist needed elaboration and Me mbers had agreed on the need for more focused 
and structured discussions on this issue.  He said that Article 29 of the TRIPS Agreement did not adequately deal with the issue of disclosure and di d not make disclosure obligatory.  For this reason, 
many patents had been granted causing serious problems of bio-piracy.  He hoped that the 
communication could be a basis for further exploration of this issue in a more focused and structured 
manner and could give other Members a better unders tanding on the rationale behind this obligation. 
27. The representatives of Cuba
 and Ecuador  supported document IP/C/W/429 and requested that 
their countries be added as co-sponsors of the document. 
28. The representative of Pakistan  noted that the paper elaborated on the Checklist that had 
previously been submitted and that had been we ll received by Members.  He hoped that the paper 
clarified some of the points raised in previous discussions and urged Members to give thought to the communication and engage in a meaningful discussion on its content. 
29. The representative of Peru
 said that document IP/C/W/429 enabled the Council to follow up 
on the Checklist which had been almost universally  recognized as a positive step towards negotiations 
on this item.  He pointed out that the sponsoring countries would continue to elaborate and develop 
the issues contained in the Checklist and that they ho ped to put disclosure into context with the issues 
of prior informed consent, access and be nefit sharing in future papers.   
30. He highlighted the importance of disclosure of  origin for giving national patent offices a 
better basis for examining patent applications, especi ally for determining the scope of a patent.  He 
believed that administrative costs would not be as relevant as the increased assistance available to 
examiners if the burden of proof was shifted to the applicants.  He said that the useful information 
available to the national offices would help avoid cases of bio-piracy such as those mentioned in the 
document.  He said that Peru had recently fought a case regarding the substance "Maca" and said that 
a more detailed presentation of this case would be  made at the next meeting of the Council. 
31. He informed the Council that last May th e Peruvian Congress had passed a law for the 
protection of and access to biological diversity a nd collective knowledge of indigenous peoples.  A 
national Commission consisting of representatives from the National Intellectual Property Office, 
ministries, public institutions, academia and civil so ciety had been created which was responsible for 
creating and maintaining a register of biologi cal resources and traditional knowledge of Peru's  IP/C/M/45 
 Page 7 
 
 
 indigenous peoples.  This  was to be used to identify and follow up applications for patents which 
were sought abroad on the basis of genetic r esources and traditional knowledge from Peru, as had 
been the case with "Maca", and to protect communities from bio-piracy.   
32. In the light of this effort aimed at compleme nting existing national le gislation, he believed 
that an obligation to disclose would put all c ountries in a better position to defend their genetic 
resources and traditional knowledge with ensuing bene fits for indigenous peoples.  As discussions in 
other forums did not directly tackle this issue,  his delegation believed that it was in the TRIPS 
Council that this issue should be discussed as th is was the only way in which the WTO could 
implement the Doha Development Agenda in an authentic manner. 
33. The representative of Venezuela  said that the Checklist had been widely accepted by 
Members and provided a useful structure for the discussion.  He said that it was the responsibility of 
developing countries to keep up the momentum from th e July package for this implementation-related 
issue of the relationship between the TRIPS Agre ement and the CBD and to discuss it with other 
Members.  Commenting on the substance of submis sion IP/C/W/429, he said that disclosure of the 
source and country of origin would help determin e problems relating to prior art, patentability and 
exclusions, help resolve disputes relating to patents and generally help to impr ove patent quality.  To 
prevent bio-piracy, it was important that a patent a pplicant be required to prove that he had obtained 
the prior informed consent of the country or indige nous community in question.  He said clarification 
was still required in relation to the fa ir and equitable distribution of be nefits between the patent holder 
and the country of origin.  
34. The representative of Brazil  supported the statements made by the co-sponsors of document 
IP/C/W/429 and recalled that the defence and protec tion of national genetic resources and the fight 
against bio-piracy had been referred to as a matte r of defending national sovereignty by the Foreign 
Minister of Brazil.  Referring to the Checklist, he said that the group intended to make future 
submissions to address the remaining questions from that list at a later time.  
35. The representative of Norway  said that document IP/C/W/429 was a useful contribution to the 
discussion and agreed with the need  for a structured and focused discussion in order to complete the 
review of the TRIPS Agreement in this area.  With  regard to the Checklist, he said that while it had 
provided a very useful tool, discussions and mate rial developed in other forums, such as WIPO, 
should also be taken into account. 
36. The representative of Nigeria , speaking on behalf of the African Group, said that 
document IP/C/W/429 went a long way in addressing the problems associated with bio-piracy and the 
issues related to safeguarding the ri ghts and obligations of Members. 
37. The representative of Malaysia  said that both IP/C/W/429 as well as the Swiss proposal in 
IP/C/W/423 provided useful contributions to the discussion by highlighting different approaches to 
the issue of disclosure.  In the context of these papers, she sought to clarify, first, whether the 
reference to the obligation to disclose the "source a nd country of origin" in the heading of IP/C/W/429 
meant that separate pieces of information were to be given with respect to "source" and "country";  
second, whether the words "biological resources" c ould be used interchangeably with "genetic 
resources";  third, whether, with regard to the "trigger for the disclosure obligation", there were 
differences between the Swiss proposal and the proposal  in document IP/C/W/429.  The latter stated 
that the trigger for disclosure was "any use" even if such use was incidental as long as such use would 
be relevant for prior art, inventorship or entitleme nt determinations and fo r understanding or carrying 
out the invention.  In this context, she asked if su ch uses which trigger the disclosure were meant to be 
a trigger for prior art reasons only or whether there would also be some relationship with the issues of 
benefit-sharing and prior informed consent.  Fourth , she noted that in the Swiss proposal IP/C/W/423, 
for the disclosure requirement to be triggered, an invention needed to be directly based on a specific IP/C/M/45 
Page 8  
 
 genetic resource.  In other words, the trigger de pended on the specific properties of an invention and 
the inventor must have had physical access to this particular specific property.  In this context she 
asked if "directly based" or "depending on a specifi c property" would also include cases where direct 
modifications had been made to the specific prope rty which would result in a different chemical 
entity.  She also asked whether these two conditio ns were mutually exclusive as it was not clear 
whether "physical access" meant "possession" or "c ontact" or if contact would also include "non 
physical contact", such as secondary sources of information.  
38. The representative of Kenya
 said that the Checklist, IP/C/W/429, and the African Group 
submission, IP/C/W/404, provided a useful basis for discussion.  He called upon the TRIPS Council to begin work on modifying the TRIPS Agreement to require patent applicants to disclose the source 
and origin of biological resources and traditional knowledge and to comply with access and 
benefit-sharing arrangements in the country of origin. 
39. The representative of Colombia
 emphasized that a mutually su pportive implementation of the 
TRIPS Agreement and the CBD must be ensured.  He said that, in this regard, disclosure of origin was 
a key issue which his delegation had also proposed in  other forums.  In the negotiations on the Patent 
Law Treaty (PLT), it had stressed that proof of the legality of access to the relevant material should be 
a part of the patent application.  As one of the "mega-diverse" countries, Colombia had also supported 
the incorporation of the requirement to disclose in the Standing Committee on the Law of Patents (SCP) and in the Committee on Reform of the PCT, wh ere it had agreed to incorporate it as one of the 
national requirements pe rmitted under Article 27.  He supporte d the proposed amendment of the 
TRIPS Agreement requiring patent applicants to di sclose the origin of genetic resources and prove 
that they had obtained the prior informed consent and had entered into appropriate benefit-sharing 
arrangements in order to avoid bio-piracy. 
40. The representative of Sri Lanka
 said that his delegation fully agreed with the statement made 
by India particularly on the issue of bio-pira cy, and supported the recommendations made in 
document IP/C/W/429. 
41. The representative of the European Communities  said that his delegation was willing to move 
forward and have a more structured, focused a nd result-oriented discussion on a limited number of 
issues that were likely to attract consensus, such as disclosure of source.  He confirmed his readiness 
to work on the basis of the Checklist and recalle d that the European Communities had already put 
forward its ideas on the issue in document IP/C/W/383 in September 2002, as well as orally at previous meetings.  He expressed his hope that a consensus would be reached at this meeting on how 
to organize future work on these issues.  With rega rd to document IP/C/W/429, he reiterated that it 
was crucial that the demandeurs  put forward their views on the issue of disclosure of source.  He said 
the European Communities would provide detailed co mments on the paper after an in-depth analysis 
at the next meeting.  He also informed the Council that the European Communities was working 
internally on the issue of disclosure of source and hoped to be able to report on the outcome at the 
Council's next meeting. 
42. The representative of China
 said that, although his country was not a co-sponsor of the paper, 
it would like to support the content of IP/C/W/429 and regarded the Checklist as a constructive basis for future discussions.  As bio-piracy was a global problem which had caused serious negative economic and social effects in many developing countries, there was an urgent need to address this problem at the international level and particularly within the framework of the WTO.  China believed 
that the implementation of the proposals contained in the co-sponsored paper would constitute one of 
the measures for that purpose as it would help the Council address the substantive as well as the 
procedural issues involved in the disclosure of source and country of origin.  He said China would like to cooperate with the co-sponsors of the paper as well as other Members in order to achieve some 
tangible results as soon as possible.   IP/C/M/45 
 Page 9 
 
 
 43. The representative of the United States  said that his delegation would provide further 
comments on the submission contained in document IP/C/W/429 at the next Council meeting.  Regarding the work plan for future discussion of th e matter, he said that the United States did not 
regard the Checklist as the best approach as his de legation felt that it was not broad enough for all 
Members' views to be properly expressed and consid ered.  He acknowledged, however, that Members 
shared several objectives on these issues which include d ensuring that prior informed consent was 
obtained in order to access genetic resources and traditional knowledge, achie ving equitable benefit-
sharing from the use of traditional knowledge and genetic resources, and preventing the erroneous 
issuance of patents.  He said that sharing na tional experiences and devel oping options and proposals 
around these topics within the ministerial mandate give n at Doha would provide a more specific focus 
than previous TRIPS Council work in this area. 
44. He said that, while the United  States was willing to work c onstructively to address concerns 
in this regard, it did not support the misconception ev ident in IP/C/W/429 that the patent system and 
new patent disclosure requirements in particular would be the best mechanism for attaining these 
important objectives.  He said that the United Stat es, together with a significant number of WTO 
Members, saw no conflict between the TRIPS Agreement and the CBD and that these could be 
implemented in a mutually supportive manner without  an amendment of the TRIPS Agreement being 
required.  The Council should concentrate on appropr iate solutions to address the concerns of all 
Members.  A narrow focus on new patent disclosure requirements would only create uncertainty in the patent system and patent rights and was not likely to achieve the shared objectives. 
45. The representative of Turkey
 welcomed the submission IP/C/W/429 and said that his 
delegation believed it could help to better struct ure the Council's discussion on this agenda item.   
46. The representative of Japan  said that his delegation shared the view of the United States in 
that it did not view the Checklist as being a useful approach.  Japan was not prepared to proceed in 
this manner.  He said that an attempt to arrive at  a complete Checklist that all Members would be able 
to agree to would not only take a lot of time but would ultimately not be successful and should 
therefore not be pursued any further.  Regarding document IP/C/W/429, he noted that it discussed 
various issues of a technical nature which require d a deep understanding of the patent system.  
Therefore, he believed that a discussion of this ki nd should not be held at the TRIPS Council but at 
WIPO or the Intergovernmental Committee on Intellectual Property and Genetic Resources, 
Traditional Knowledge and Folklore of WIPO ("IGC") wh ich had this kind of technical expertise.  In 
this context, he recalled that in response to the request from COP 7 of the CBD, some discussion of 
this kind had already started in the IGC. 
47. The representative of Switzerland  recalled that his delegation had informed the TRIPS 
Council at its recent meetings about its submissions  in the WIPO's Patent Cooperation Treaty (PCT) 
Reform Working Group in order to contribute to th e Council’s discussion of this subject and to avoid 
duplicating work under way in other competent foru ms.  He said that Switzerland had proposed to 
amend the regulations under the PCT of WIPO to e xplicitly enable its contracting parties to require 
patent applicants to declare the source of genetic  resources and traditional kno wledge in international 
patent applications.  This requi rement would apply if the claimed invention was directly based on 
such resources or knowledge.  In his view, the san ctions currently allowed for under the PCT and the 
Patent Law Treaty should apply to failure to disclose or wrongful disclosure of the source of genetic 
resources and traditional knowledge in patent applications.  In additi on, other sanctions provided for 
in national law, including criminal sanctions such  as fines, could be imposed.  He explained that 
Switzerland had proposed to leave it up to the nati onal legislator to decide whether a disclosure 
requirement was to be introduced in the national laws  of the contracting parties of the PCT.  This 
optional nature had been chosen because of the great  divergence of views on transparency measures at 
the international level and because the relevant discussions on these requirements had not brought any IP/C/M/45 
Page 10  
 
 final results.  Additionally, it would allow the na tional governments and the international community 
to gain experience with the disclosure requirement w ithout prejudice to future international efforts. 
48. He then responded to questions that the delegati on of Malaysia had raised at the Council's last 
meeting with regard to the Swiss proposals to ame nd the PCT regulations.  With regard to the first 
question of the meaning of the term "directly based ", he explained that the invention had to make 
immediate use of the genetic resource.  He said that the inventor must have had physical access to this 
resource, i.e. the inventor must have possessed, or at least have had contact which was sufficient to 
identify the properties of the genetic resources that  were relevant for the invention.  Thus, for 
example, the source of a plant would have to be d eclared in the patent application if the respective 
invention related to a chemical compound which the i nventor had extracted from this plant.  The term 
"directly", however, had no time dimension.  With regard to traditional knowledge, he said that the 
proposed new rule required that the inventor knew that the invention was "directly based" on this 
knowledge, i.e., he had to have consciously derived the inven tion from this knowledge.  Since 
traditional knowledge was of an in tangible nature, physical access was not possible and therefore not 
required.  This was intended to avoid cases where, for example, the inventor was using a chemical 
compound derived from a plant to develop a new pha rmaceutical, without knowing that an indigenous 
community had knowledge concerning the pharmaceutical  use of this plant.  Again, the term 
"directly" had no time dimension. 
49. Responding to the second question regarding the co ncept of the "source" of genetic resources 
and traditional knowledge, he said that the in ternational instruments relevant for access and 
benefit-sharing, i.e. the CBD, the Bonn Guidelin es and the International Treaty for Plant Genetic 
Resources of the FAO, foresaw several entities invol ved in access and benefit-sharing.  For the entity 
to be declared as the source, it was necessary to see if it was the competent one to grant access to 
genetic resources and traditional know ledge, and/or to participate in the sharing of the benefits arising 
out of their utilization.  He explained that one could distinguish between primary sources of genetic 
resources, such as contracting parties, the multilatera l system of the FAO treaty or indigenous and 
local communities and secondary sources, such as ex situ  collections, databases or scientific literature.  
In order to fulfil the disclosure requirement, patent applicants had to disclose the primary source, if 
they had information about this, or disclose the sec ondary source if they had no information about the 
primary source.  With regard to the third ques tion as to whether the term "source" could include 
databases and scientific publications, he said that these could be declared as sources in order to increase transparency in access and benefit-sharing.   Whether such sources were involved in access 
and benefit-sharing in any other way had to be determined under the applicable international and 
national rules.   
50. He said that more detailed information on th e Swiss proposals was available in documents 
IP/C/W/400/Rev.1 and IP/C/W/423 and added that  Switzerland was planning to present a third 
submission in WIPO which it would also present to th e next TRIPS Council meeting.  With regard to 
IP/C/W/429 and the further questions raised by Ma laysia, he said that his delegation would make 
detailed comments at the Council's next meeting.  
51. The representative of Australia
 said, with regard to the questions raised by Malaysia, that 
WIPO's IGC had done work on some aspects of this issue, particularly on those relating to some of 
the difficult questions of definition.  With respect to the structuring of future work on this issue, she 
reiterated that Australia remained committed to wo rking within the existing mandate but that care 
should be taken not to duplicate efforts.  She said that her delegation would find it helpful to ground 
this work in the national experiences of Memb ers in order to better understand the concrete 
implications of some of the more  legal and theoretical concepts. 
52. The representative of New Zealand  recalled that, at the last meeting, her delegation had 
spoken in favour of the former Chair's proposal on ho w to structure further work as there was merit in  IP/C/M/45 
 Page 11 
 
 
 the Chair's attempt to divide out the issues and focus on areas of convergence.  She said that the 
Council's ability to make progress seemed to have  been hampered by its tendency of grouping 
consideration of these issues together and by its attempts to deal with a large number of complex issues at once.  While progress was needed on all of  the issues raised on this combined agenda item, 
she agreed with others, such as the European Communities, that the Council should focus on issues 
likely to lead to progress of which the disclosure of origin would seem to be one.  She noted that, 
while contributions like IP/C/W/429 were useful, her delegation was concerned about basing further 
discussion of this issue exclusively on the Check list proposal.  Discussion of this issue should be 
structured so as not to prejudge the outcome and s hould enable consideration of all possible options 
and avenues for meeting Member's shared objectives.   She encouraged the Chair to continue to 
consult informally so that Members could find a wa y to structure discussions in a way that allowed 
maximal progress.  
53. The representative of India
 said that he did not any see any bar in the current rules to the 
introduction of disclosure requirements at the nati onal level.  What was being proposed was the 
introduction of a disclosure requirement as an obligation into the TRIPS Agreement in order to 
achieve the legitimate objectives of the demandeurs  on these three agenda items.  In response to the 
first question by Malaysia, he clarified that the sour ce and the country of origin mentioned in the title 
and elsewhere in the paper were not the same.  He concurred with the comments of Switzerland on 
what "source" meant and said that the "country of or igin" was the origin of the biological or genetic 
resource and that its disclosure was a separate require ment.  He said that it was the country of origin 
that would be relevant in the context of the Council's discussions on prior informed consent and 
access and benefit-sharing.  Regarding the sec ond question as to whether biological resources and 
genetic resources were used interchangeably, he sai d that these two terms had been used in national 
legislations, in some international forums and in some regional arrangements.  He said that it would 
be for the Council to discuss and decide the right la nguage to be used to decide what was to be 
disclosed and that his delegation was open to sugge stions and discussions on which terms to use.  
Responding to the last question relating to the meaning of "incidental" in the context of paragraph 8 of 
the paper and on whether the trigger indicated in th e paper was meant only for determining prior art or 
for other consequences as well, he said that the term "incidental" had to be read with the rest of the 
sentence.  Disclosure was triggered when the source and country of origin were relevant for prior art, 
for inventorship, for entitlement determinations, for th e scope of the claims that the patent applicant 
might wish to make in his application, or for unde rstanding or carrying out the invention.  Therefore, 
disclosure would not be relevant only for prior art, but also for certain subsequent aspects.   
54. He said that his delegation planned to elabor ate upon these aspects in its future papers which 
would deal with the second and third sets of issu es in the Checklist.  His delegation also supported 
future informal consultations to be organized by the Chair in order to further discuss possibilities of 
organizing and structuring discussions.  He said that his delegation would respond to the other 
comments and questions that had been made on th e broader issues covered by IP/C/W/429 and the 
Checklist at the Council's next and subsequent meetings. 
55. The Chairperson  said that Members might wish to revert to document IP/C/W/429 at the 
Council's next meeting, given that it had only just been  circulated.  She suggested that the future Chair 
of the Council continue the consu ltations initiated by the former Ch air on how future work on these 
three agenda items should be organized. 
56. The Council took note  of the statements made and agreed  to proceed as suggested by the 
Chair.   IP/C/M/45 
Page 12  
 
 G. R
EVIEW OF THE IMPLEMENTATION OF THE AGREEMENT UNDER ARTICLE 71.  
57. No statements were made under this  agenda item.  The Council agreed  to revert to the matter 
at its next meeting. 
H. REVIEW OF THE APPLICATION OF THE PROVISIONS OF THE SECTION ON GEOGRAPHICAL 
INDICATIONS UNDER ARTICLE 24.2 
58. The Chairperson  recalled that Article 24.2 provided that the Council should keep under 
review the application of the provisions of th e geographical indications section of the TRIPS 
Agreement, and that the first such review should take  place within two years of the entry into force of 
the WTO Agreement.  At the Council's last mee ting, Chinese Taipei had presented the information 
that it had provided in response to the checklist of questions contained in document IP/C/13 and 
Addendum 1 (IP/C/W/117/Add.30 and Corr.1).  The European Communities had foreshadowed that, 
after having studied that information, it might wish  to pose questions relating to it.  The Council had 
also discussed certain suggestions that had been ma de at that meeting on how to carry forward this 
review.  The Chair had concluded that this was a matter for his successor, once elected, to reflect upon 
and consider after further contacts with the delegations. 
59. The representative of the European Communities  reiterated the importance that his delegation 
attached to this agenda item and underlined the need to move forw ard in finding a more focused and 
structured way to continue work on it.  He wondered how the Chairperson, in the light of the previous 
Chairman's conclusion, intended to pursue this matter. 
60. The Chairperson  said that she was happy to discuss the matter but that it was more 
appropriate to leave it to the future Chairman to take up. 
61. The Council took note  of the statement made.  
I. DECISION ON THE IMPLEMENTATION OF PARAGRAPH 6 OF THE DOHA DECLARATION ON THE 
TRIPS AGREEMENT AND PUBLIC HEALTH  
62. The Chairperson  recalled that paragraph 11 of the Decision on "Implementation of 
Paragraph 6 of the Doha Declaration on the TRIPS Agreement and Public Health" (WT/L/540) 
(hereinafter "the Decision") provided that the TRI PS Council should initiate by the end of 2003 work 
on the preparation of an amendment to the TRIPS Ag reement to replace its provisions with a view to 
its adoption within six months, i.e. by June 2004.   Accordingly, the TRIPS Council had taken up the 
matter at its last meeting in 2003 and again at its me etings earlier 2004.  In addition, the two previous 
Chairs of the Council had consulted actively with de legations.  These consultations had indicated that 
there seemed to remain significant differences among delegations in regard to  the substantive content 
and the legal form that an amendment to repl ace the paragraph 6 Decision should have, although 
many delegations had emphasized that they remain ed ready to consider alternative solutions.   
63. At its meeting in June, the Council had agreed to  continue its work on the preparation of the 
amendment with a view to the TRIPS Council ma king a recommendation by the end of March 2005 
so that the General Council could conclude its work on the amendment at its first meeting thereafter.  
At the time the former Chair had proposed this arrangement at the Council's last meeting, he had 
made it clear that the suggestion did not exclude the Council agreeing earlier than March 2005 and 
that obviously he had hoped that this would be the case.   He had also made it clear that, in order to 
meet the new timeframe,  the Council would need to work expeditiously and purposefully, starting 
with its September meeting and he had expressed hi s confidence that there was readiness on the part 
of delegations to do this.  The former Chair ha d informed the General Council of these arrangements 
at its meeting on 27 July 2004.    IP/C/M/45 
 Page 13 
 
 
 64. The Chairperson also recalled that paragraph 8 of the Decision provided that the Council for 
TRIPS should review annually the functioning of the system set out in the Decision with a view to 
ensuring its effective operation and should annually report on its operation to the General Council.   
The Council would need to conduct its first annual review at its meeting scheduled for 
1-3 December 2004.  She then drew the attention of the Council to a new submission from Norway 
(IP/C/W/427), which contained information on Norway's implementation of the Decision. 
65. The representative of Norway  recalled that, at the Council's last meeting, he had presented 
Norway's amendments to its patent legislation to implement the Decision.  These amendments had 
entered into force 1 June 2004 and had provide d Norway with a fully operational legislative 
framework for the production of patented medicines for export under compulsory licences.  Details of 
Norway's implementation could be found in the document IP/C/W/427 as well as in its notification 
under Article 63.2 TRIPS Agreement.  He said th at the threat to public health and economic 
development posed by HIV/AIDS, tuberculosis, ma laria and other epidemics was as serious today as 
it had been three years ago at the time of the adoption of the Doha Ministerial Declaration on the TRIPS Agreement and Public Health.  Therefore, the implementation of the Decision was a very 
important contribution, amongst other efforts, to  provide access to affordable essential drugs against 
these diseases and Norway hoped that its implementa tion would induce other Members to follow suit. 
66. The representative of Nigeria, speaking on behalf of the African Group
, said that the Group 
was in the process of finalizing a proposal to  amend the TRIPS Agreement as mandated by the 
Decision and that the Group was keen to take th e process forward in a constructive manner with a 
view to enabling easy use for those Members who woul d need to use it.  The amendment envisaged an 
Article 31bis to be added to the text of the TRIPS Agreement to deal specifically with the protection 
of public health.   
67. The proposed amendment, which, in his view, would represent both a workable and a 
permanent solution, would address Ar ticle 31(f) as it affects measures ta ken to protect public health 
and in particular to promote access to medicines fo r all with respect to compulsory licences for the 
production of pharmaceutical products.  The issue of  exports to Members with insufficient or no 
manufacturing capacity in pharmaceutical sectors would also be contained in the amendment, as would the issue of adequate remuneration for the purpose of Article 31(h), taking into account the 
economic value for the importing Members of the u se that had been authorized in the exporting 
Member.  Other issues such as unlawful importation and sale of products produced pursuant to the 
Decision, RTAs, technical assistance and disput e settlement would also be addressed in the 
amendment.  He said that the African Group we lcomed the commitment and interest shown by 
delegations in the informal consulta tions held to date in finalizing th is matter and finding a predictable 
and permanent solution to the problem. 
68. The representative of the European Communities
 hoped that, given the March 2005 deadline 
for work on the amendment, the new Chair would st art consultations without delay with a view to 
coming up with a text at the next meeting.  He reported that the EC Commission services were 
preparing a proposal for a regulation on compulsory  licences in order to implement the Decision and 
that this proposal would be presented by the end of  this year.  His delegation would keep the Council 
informed of any new development regarding this pr oposal.  He reiterated th at his delegation's position 
on this issue was contained in document IP/C/W/ 416 and that the exercise was seen as a purely 
technical one that did not call for any re-opening of substantive discussions.  He said that the 
amendment should faithfully reflect what had been ag reed to in the Decision and that his delegation's 
preferred approach was a change in the body of the TRIPS Agreement to the effect that a new 
exception was created to Article 31(f).  He said th at a mere reference to the waiver would not be 
sufficient but the EC could be flexible on the legal form, provided that the wording would set out a new exception in Article 31(f) allowing Members to issue compulsory licences  for export under the 
conditions agreed to in August 2003.   With regard to the Chairman's Statement, he said that the link IP/C/M/45 
Page 14  
 
 between the Decision and the Statement should be preser ved and that the legal status of the Statement 
should not be upgraded. 
69. The representative of Kenya
 supported the comprehensive statement of Nigeria made on 
behalf of the African Group and expressed his hopes that Members would be able to accept the 
Group's proposal since the proposed amendment incorpor ated those elements that were in the waiver 
but which were not already contained in the TRIPS Agreement.  He said that, in view of the short 
deadline, it would be undesirable to have a long discussion on this issue and that any debate should stick to the letter and spirit of  Paragraph 11 of the Decision. 
70. The representative of the United States
 believed that Norway's notification of its 
implementation of the Decision supported the efforts to promote access to medicines to poor countries 
facing epidemics.  His delegation remained fu lly committed to reaching an agreement on the 
amendment by the March 2005 deadline and continued to  believe that substantive issues should not be 
reopened and that this should be seen as a technical  exercise.  As indicated in prior TRIPS Council 
meetings, his delegation considered it essential th at the amendment preserve the entire agreement 
reached in August 2003 and therefore needed to in clude an express reference to both the Decision and 
the Chairman's Statement.  Meeting the 2005 deadli ne would be a very difficult task if Members 
sought to change the content of the 30 August 20 03 agreement.  He said that his delegation only 
sought to preserve all aspects of the agreement, including the legal relationship between the Decision 
and the Chairman's Statement, and that it remained  open as to how this could be best accomplished. 
71. The representative of the World Health Organization (WHO)  stated that the Doha Declaration 
on the TRIPS Agreement and Public Health, in affi rming that the TRIPS Agreement "can and should 
be interpreted and implemented in a manner supportive of WTO Members' right to protect public 
health and, in particular, to promote access to  medicines for all" marked a watershed in the 
international trade regime.  It demonstrated that the multilateral rules-based trading system could be 
rendered compatible with public health interests.   The WHO remained fully committed to supporting 
WTO and its Members in the implementation of this  Declaration.  The same commitment applied to 
the Decision, on which the WHO had recently publis hed a paper, copies of which had been made 
available to delegates.  The WHO explained that  this paper examined the options available for 
countries to make use of the system to export an d import generic versions of patented medicines 
produced under compulsory licences.  Its approach was guided by the principle that patients in a 
country with little or no domes tic pharmaceutical production capacity should be protected by 
compulsory licensing provisions (or, indeed, by ot her TRIPS safeguards) to the same extent as 
patients in countries capable of pr oducing pharmaceutical products.   
72. A public-health-oriented interpretation and impl ementation of the Decision would mean the 
following: full or broad coverage in terms of hea lth problems and the appropriate range of medicines 
for their prevention and/or treatment;  simple and speedy legal procedures in both importing and 
exporting countries;  equality of opportunities for co untries in need of medicines, even for products 
not patented in the importing country;  a wide choice  of potential suppliers of the medicines required, 
both from developed and developing countries;  and transparency and predictability of the applicable 
rules in the exporting and importing countries.  Ideally , all these elements should be incorporated into 
a stable international legal framework.  He recalled that the Decision took the form of a waiver that 
was to remain in force until replaced by a permanen t amendment to the TRIPS Agreement.  In this 
regard, the WHO had noted with appreciation that the deadline for the amendment had been extended 
from June 2004 to the end of March 2005.  During th is interim period, therefore, it should be a 
priority for countries to make full and effectiv e use of the waiver, including amending national 
legislations where necessary.   
73. He said that it would be useful if country e xperiences and lessons on the use of the Decision 
were taken into account in the amendment of the TR IPS Agreement.  However, it was noted that, to  IP/C/M/45 
 Page 15 
 
 
 date, no WTO Member had made use of, or had notifie d its intention to make use of, the system that 
had been established under the Decision for importati on.  He said that it may be beneficial to 
undertake an assessment to ascertain the reasons for this as input into the debate on the issue of the 
adoption of an amendment to the TRIPS Agreement.   
74. The representative of Kenya  thanked the WHO for the statement and recommended that the 
paper prepared by the WHO be read by all Members as it provided useful reading material, 
particularly for those who might have problems am ending their national legislation.  Regarding the 
United States' comments on the Chairman's Statement,  he reiterated his delegation's position that the 
Statement had served its purpose and was not part of  the waiver.  He said that many statements had 
been made at the time of the adoption of the Decisi on and no reference was being made to these.  He 
recalled that it was particularly the statement of the delegation of South Africa that helped many 
countries to join the consensus and that, if any st atement was to feature in the amendment, it should 
be that statement.   He said that the Chairman's  Statement dealt with inte rpretation, which should be 
left until after the amendment was finalized. 
75. The Chairperson  recalled that, at the time the former  Chair had proposed the arrangement for 
completing the Council's work on the amendment, he had made it clear that, in order to meet the new 
timeframe, the Council would need to work expediti ously and purposefully.  In view of this, she 
suggested that the new Chair initiate consultations as soon as possible with a view to carrying forward 
this work expeditiously.  
76. The Council took note  of the statements and agreed  to proceed as suggested by the Chair. 
J. REVIEW UNDER PARAGRAPH 2 OF THE DECISION ON THE IMPLEMENTATION OF ARTICLE 66.2  
OF THE TRIPS AGREEMENT  
77. The Chairperson  recalled that, at its meeting in November 2003, the Council had taken up its 
first annual review of developed country Members' reports on their implementation of Article 66.2 of 
the TRIPS Agreement.  This had been done pu rsuant to paragraph 2 of the decision on the 
"Implementation of Article 66.2 of the TRIPS Agre ement".  At the Council's meeting in June 2004, 
the representative of Tanzania had said that th e LDC group wished to provide comments on the 
reports submitted in this first annua l review at the present meeting. 
78. The representative of Tanzania  informed the Council that the LDC group, although having 
reached an advanced stage of the consultation pro cess, was not yet in a position to give the statement 
foreshadowed in the previous meeting.  The st atement would be made as soon as the consultations 
were concluded. 
79. The Chairperson  reminded the Members of the arrangeme nts that the Council had agreed, at 
its meeting in June, for the second annual review pursuant to paragraph 2 of the decision on the 
"Implementation of Article 66.2 of the TRIPS Ag reement".  The Council had agreed to request 
developed country Members to submit updates to th e reports they had provided in 2003 on actions 
they had taken or planned in pursuance of  their commitments under Article 66.2 by 
9 November 2004, i.e. three weeks before the next m eeting, in order to allow their timely circulation 
and review at the Council's meeting in November.  The Secretariat had circulated this request in 
airgram WTO/AIR/2360. 
80. The Council took note  of the statements made. IP/C/M/45 
Page 16  
 
 K. T
ECHNICAL COOPERATION AND CAPACITY -BUILDING  
 (i) Annual updates on technical cooperation activities   
81. The Chairperson recalled that the Council had ag reed, at its meeting in June, to focus on 
technical cooperation at the present meeting.  In pr eparation for this annual review, developed country 
Members had once more been requested to update  information on their technical and financial 
cooperation activities relevant to the implementation of the TRIPS Agreement in time for this 
meeting.  Other Members who also made availabl e technical cooperation had been encouraged to 
share information on these activities if they so wish ed.  The Secretariat had issued on 13 July 2004 an 
airgram WTO/AIR/2359 reminding Members of this request.  In addition, intergovernmental 
organization observers to the Council and the WTO Secretariat had also been invited to provide 
information.   
82. To date, the Council had received informa tion from the following developed country 
Members:  New Zealand;  Switzerland;  Japan;  the United States;  Norway;  the European 
Communities and the following member States:  Austri a, Denmark, Finland, France, Germany, Italy, 
Portugal, Spain, Sweden and the United Kingdom .  The resulting documentation concerning the 
technical cooperation activities of developed count ry Members was being circulated in document 
IP/C/W/426 and addenda.  So far, updated in formation from the following intergovernmental 
organizations had been obtained:  the IMF, the OECD, and the WHO.  This information was being 
circulated in documents IP/C/W/424 and addenda.  Updated information on the WTO Secretariat's 
technical cooperation activities in the area of TR IPS was available in document IP/C/W/428.   
83. The Chairperson urged those Members that ha d not yet provided updated information to do 
so, and said that at the next Council's meeting Me mbers would be provided with an opportunity to 
make comments on the information submitted for this me eting that they might not yet have been able 
to study. 
 (ii)  Notification of contact points for technical cooperation on TRIPS  
84. The Chairperson  recalled that, since 1996, developed country Members had notified to the 
Council their contact points for technical cooperation on TRIPS.  Since the Council's last meeting, the 
Czech Republic had provided an update of the inform ation concerning its contact points for technical 
cooperation (IP/N/7/Rev.2/Add.6). 
(iii) Joint Initiative  
85. The Chairperson  recalled that on 14 June 2001 the WIPO  and WTO Secretar iats had launched 
a Joint Initiative on Technical Cooperation for L east-Developed Countries.  Since then, the WTO 
Secretariat had kept the Council informed about  the implementation of the Joint Initiative. 
86. The representative of the Secretariat  drew the attention of Memb ers to paragraph 13 of the 
Secretariat's report on "Technical Cooperation in  the TRIPS Area" (IP/C/W/428), which provided 
information on the WTO Secretariat's activ ities relevant to the Joint Initiative. 
87. The representative of WIPO  said that information on its work relevant to the Joint Initiative 
would be included in a document on WIPO's technical cooperation ac tivities that would be submitted 
shortly. 
88. The Council took note  of the statements.  IP/C/M/45 
 Page 17 
 
 
 L. REQUEST FROM THE MALDIVES FOR AN EXTENSION OF THE TRANSITION PERIOD UNDER 
ARTICLE 66.1  OF THE TRIPS AGREEMENT  
89. The Chairperson  reported that the Council had receive d a request from the Maldives for an 
extension of the transition period under Article 66.1 of the TRIPS Agreement (IP/C/W/425).  She 
recalled that Article 66.1 provided that, in vi ew of the special needs and requirements of 
least-developed country Members, their economic, fi nancial and administrative constraints, and their 
need for flexibility to create a viable technological base, such Members shall not be required to apply 
the provisions of the TRIPS Agreement, other th an those concerning national and most-favoured-
nation treatment, until 1 January 2006.  The Article further provided that the Council for TRIPS shall, 
upon duly motivated request by a least-developed coun try Member, accord extensions of this period. 
90. In its communication, the Maldives had requested  the Council to accord to it an extension of 
the period provided in Article 66.1 for a further five years for implementation of the TRIPS Agreement.   
91. In light of informal consultations that had been held, she suggested that the TRIPS Council 
agree that further consultations be held on the re quest of the Maldives and that the arrangements of 
these be coordinated between the Chair of the TR IPS Council and the Chair of the CTD, in which 
body the issue of the graduation of the Maldives from LDC status would be discussed the following 
week. 
92. The Council so agreed
.  
M. FOLLOW -UP TO THE DECISION ON THE DOHA WORK PROGRAMME ADOPTED BY THE 
GENERAL COUNCIL ON 1 AUGUST 2004 
93. The Chairperson  recalled that she had held informal consultations on what action the TRIPS 
Council should take pursuant to the General Counc il Decision of 1 August 2004 on the Doha Work 
Programme (WT/L/579), in particular in regard to its provisions relating to special and differential 
treatment, and non-violation and situation complaints in the area of TRIPS. 
(i) Special and differential treatment 
94. The Chairperson  said that in its Decision, the Ge neral Council had recalled Ministers' 
decision in Doha to review all S&D treatment prov isions with a view to strengthening them and 
making them more precise, effective and operationa l, and had recognized the progress that had been 
made so far.  As regards all those WTO bodies to  which proposals in Category II had been referred, 
the General Council had instructed them to expe ditiously complete the consideration of these 
proposals and report to the General Council, with clear recommendations for a decision, as soon as 
possible and no later than July 2005. 
95. In light of her informal consultations, she s uggested that the Secretariat be requested to 
summarize in an informal note the Council's work so far on the Category 2 proposals on special and 
differential treatment referred to it and that the Counc il revert to the matter at its next meeting.    
96. The Council so agreed . 
(ii) Non-violation and situation complaints 
97. The Chairperson  recalled that the General Council D ecision on the Doha Work Programme 
provided, under the title "Other elements of the Wo rk Programme", that the moratorium covered by 
paragraph 11.1 of the Doha Ministerial Decision on Implementation-Related Issues and Concerns was IP/C/M/45 
Page 18  
 
 extended up to the Sixth Ministerial Conference.  Sh e also recalled that paragraph 11.1 of the Doha 
Decision read as follows: "The TRIPS Council is direct ed to continue its examination of the scope and 
modalities for complaints of the types provide d for under subparagraphs 1(b) and 1(c) of 
Article XXIII of GATT 1994 and make recommendati ons 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." 
98. In light of her informal consultations, she suggested that the item on non-violation and 
situation complaints be put on the agenda of th e next meeting of the TRIPS Council and that the 
Secretariat be requested to update its earlier su mmary note, circulated in June 2002 as document 
IP/C/W/349, on the points raised in the Council' s substantive discussion of this matter so far. 
99. The Council so agreed
.  
N. INFORMATION ON RELEVANT DEVELOPMENTS ELSEWHERE IN THE WTO   
Accessions  
100. The Chairperson  informed the Council that the Ki ngdom of Cambodia would become the 
148th Member of the WTO on 13 October 2004.  Cambodia would be the second least-developed 
country to join the WTO pursuant to Article XII of  the WTO Agreement, that is, through the full 
WTO working party process. 
O. OBSERVER STATUS FOR INTERNATIONAL INTERGOVERNMENTAL ORGANIZATIONS  
101. The Chairperson  said that the list of the 16 pending re quests for observer status in the TRIPS 
Council by other intergovernmental organizations was contained in document IP/C/W/52/Rev.10.  
She recalled that the Council had discussed these pendi ng requests at its prev ious meetings, but had 
not been able to reach consensus on any of them.   
102. The Council agreed  to revert to the matter at its next meeting. 
P. OTHER BUSINESS  
103. The Chairperson  recalled that the tentative dates for the Council's next regular session had 
been 30 November to 2 December, followed by th e Council's Special Session on 3 December.  In 
order to avoid conflict with so me other meetings, the Special Session had now been moved to 
30 November, which would be fo llowed by the regular session of the Council on 1-2 December, 
continued, if necessary, on 3 December. 
104. She reminded the Council of certain reviews that w ould be on the agenda of its next meeting.  
The Council would need to hold its first annual re view under paragraph 8 of the Decision on the 
Implementation of Paragraph 6 of the Doha Declaration on TRIPS and Public Health, and report on its 
operation to the General Council.  She reminded th e Council of the arrangements that the Council had 
agreed, at its meeting in June, for a second annual review pursuant to paragraph 2 of the Decision on 
the "Implementation of Article 66.2 of the TRIPS Agreement".  The Council would also have on its 
agenda the third transitional review under Section 18 of the Protocol of the Accession of the People's 
Republic of China. 
__________  
 