WORLD TRADE
ORGANIZATIONWT/WGTTT/3
10 October 2002
(02-5446)
Working Group on Trade and Transfer of Technology Original:  English
PROVISIONS RELATING TO TRANSFER OF TECHNOLOGY
IN WTO AGREEMENTS
Communication from Cuba, Egypt, Honduras , India, Indonesia, Kenya and Zimbabwe
Since the 1970s, developing countries have expressed in various international fora their desire
to improve access to foreign technologies and upgrade their technological capabilities.  In view of the
importance attached over the last two decades to transfer of technology and capacity building, specific
provisions on transfer of technology have been in corporated into varying international instruments
including WTO agreements.  These provisions have various objectives and scope, and modes ofimplementation, including the provision of financing, and are subject to different terms and
conditions.  In most cases, however, such provis ions contain only "best endeavours" commitments,
and are not mandatory rules.  The question that arises is to what extent developing countries benefit
from these instruments.
These provisions are underpinned by a variety of shared concerns: effective integration of the
developing countries in world trade, protection of in tellectual property rights, flow of investment and
sustainable development.  In this respect, tec hnological knowledge includ es both the know-how of
processes for producing goods and services and the organisational and management information
needed to produce and distribute goods and services efficiently.  This knowledge is embedded in
machinery, equipment, licensing agreements, and managerial skills.  A key component of any transfer
process is the effective transfer of the skills and intangible know-how that ensure production
capability.  These can be of greater developmental value than the transfer of tangible goods andinputs.
With a view towards ensuring that developing countries secure a share in the growth in
international trade commensurate with the needs of  their economic development and to ensure a co-
operative implementation of the multilateral trade co mmitments, particularly in the post-Doha period,
there is a need to identify ways and means of taking full advantage of the flexibility available in theTRIPS, GATS, TRIMS and other WTO agreements, with a view to increasing transfer of technology
and facilitating achievement of national development goals.  There is a need to encourage transfer of
technology in various modes to developing countries, in particular to the least developed countries,
including promotional measures for building up a sound technological base that would enable these
countries to participate harmoniously in the exchange of goods, services, information and knowledge.
I. PROVISIONS RELATING TO TRANSFER OF TECHNOLOGY IN WTO
AGREEMENTS
A. TRIPS
Preamble:
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Recognizing  also the special needs of the least-developed country Members in respect of
maximum flexibility in the domestic implementation of laws and regulations in order to enable them
to create a sound and viable technological base;
……
Article 7
(Objectives)
The protection and enforcement of intellectual property rights should contribute to the
promotion of technological innovation and to the transfer and dissemination of technology, to the
mutual advantage of producers and users of technological knowledge and in a manner conducive to
social and economic welfare, and to a balance of rights and obligations.
Article 8
(Principles)
2. Appropriate measures, provided that they are consistent with the provisions of this
Agreement, may be needed to prevent the abuse of in tellectual property rights by right holders or the
resort to practices which unreasonably restrain trade or adversely affect the international transfer of
technology.
Article 40
(Section 8:  Control of Anti-competitive Practices in Contractual Licences)
1. Members agree that some licensing practices or conditions pertaining to intellectual property
rights which restrain competition may have adverse effects on trade and may impede the transfer and
dissemination of technology.
2. Nothing in this Agreement shall prevent Me mbers from specifying in their legislation
licensing practices or conditions that may in particular cases constitute an abuse of intellectual
property rights having an adverse effect on competition in the relevant market.  As provided above, a
Member may adopt, consistently with the other provisions of this Agreement, appropriate measures to
prevent or control such practices, which may include for example exclusive grantback conditions,
conditions preventing challenges to validity and coercive package licensing, in the light of therelevant laws and regulations of that Member.
3. Each Member shall enter, upon request, into consultations with any other Member which has
cause to believe that an intellectual property right owner that is a national or domiciliary of the
Member to which the request for consultations has been addressed is undertaking practices inviolation of the requesting Member's laws and regulations on the subject matter of this Section, and
which wishes to secure compliance with such legislation, without prejudice to any action under the
law and to the full freedom of an ultimate decision of either Member.  The Member addressed shall
accord full and sympathetic consideration to, and shall afford adequate opportunity for, consultations
with the requesting Member, and shall cooperate through supply of publicly available non-confidential information of relevance to the matte r in question and of other information available to
the Member, subject to domestic law and to the conclusion of mutually satisfactory agreements
concerning the safeguarding of its confidentiality by the requesting Member.WT/WGTTT/3
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Article 66
(Least-Developed Country Members)
2. Developed country Members shall provide incentives to enterprises and institutions in their
territories for the purpose of promoting and encouraging technology transfer to least-developedcountry Members in order to enable them to create a sound and viable technological base.
B. A
GREEMENT ON THE APPLICATION OF SPS M EASURES
Article 9
(Technical Assistance)
1. Members agree to facilitate the provision of technical assistance to other Members, especially
developing country Members, either bilaterally or through the appropriate international organizations.
Such assistance may be, inter alia , in the areas of processing technologies, research and infrastructure,
including in the establishment of national regulatory bodies, and may take the form of advice, credits,
donations and grants, including for the purpose of seeking technical expertise, training and equipment
to allow such countries to adjust to, and comply with, sanitary or phytosanitary measures necessary toachieve the appropriate level of sanitary or phytosanitary protection in their export markets.
2. Where substantial investments are required in order for an exporting developing country
Member to fulfil the sanitary or phytosanitary requirements of an importing Member, the latter shall
consider providing such technical assistance as will permit the developing country Member tomaintain and expand its market access opportunities for the product involved.
C. A
GREEMENT ON TBT
Preamble:
……
Recognizing  the contribution which international standardization can make to the transfer of
technology from developed to developing countries;
Recognizing  that developing countries may encounter special difficulties in the formulation
and application of technical regulations and standards and procedures for assessment of conformity
with technical regulations and standards, and desiring to assist them in their endeavour in this regard;
…
Article 11
(Technical Assistance to Other Members)
11.3 Members shall, if requested, take such reasonable measures as may be available to them to
arrange for the regulatory bodies within their territories to advise other Members, especially the
developing country Members, and shall grant them technical assistance on mutually agreed terms and
conditions regarding:
11.3.1  the establishment of regulatory bodies, or bodies for the assessment of conformity
with technical regulations; and
11.3.2  the methods by which their technical regulations can best be met.
11.5 Members shall, if requested, advise other Members, especially the developing country
Members, and shall grant them technical assistance on mutually agreed terms and conditionsWT/WGTTT/3
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regarding the steps that should be taken by their producers if they wish to have access to systems for
conformity assessment operated by governmental or  non-governmental bodies within the territory of
the Member receiving the request.
D. GATS
Article IV
(Increasing Participation of Developing Countries)
1. The increasing participation of developing country Members in world trade shall be
facilitated through negotiated specific commitments, by different Members pursuant to Parts III
and IV of this Agreement, relating to:
(a) the strengthening of their domestic services capacity and its efficiency and
competitiveness, inter alia  through access to technology on a commercial basis;
(b) the improvement of their access to distri bution channels and information networks;
and
(c) the liberalization of market access in sectors and modes of supply of export interest to
them.
2. Developed country Members, and to the extent possible other Members, shall establish
contact points within two years from the date of en try into force of the WTO Agreement to facilitate
the access of developing country Members' service suppliers to information, related to their respective
markets, concerning:
(a) commercial and technical aspects of the supply of services;
(b) registration, recognition and obtaining of professional qualifications;  and
(c) the availability of services technology.
Article XIX
(Negotiation of  Specific Commitments)
2. The process of liberalization shall take place with due respect for national policy objectives
and the level of development of individual Members, both overall and in individual sectors.  There
shall be appropriate flexibility for individual developing country Members for opening fewer sectors,
liberalizing fewer types of transactions, progressively extending market access in line with theirdevelopment situation and, when  making access to their markets available to foreign service suppliers,
attaching to such access conditions aimed at achieving the objectives referred to in Article IV.
3. For each round, negotiating guidelines and procedures shall be established.  For the purposes
of establishing such guidelines, the Council for Trade in Services shall carry out an assessment oftrade in services in overall terms and on a sectoral basis with reference to the objectives of this
Agreement, including those set out in paragraph 1 of Article IV….WT/WGTTT/3
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E. GATS A NNEX ON TELECOMMUNICATIONS
6. Technical Cooperation
(c) In cooperation with relevant international organizations, Members shall make
available, where practicable, to developing countries information with respect totelecommunications services and developments in telecommunications and
information technology to assist in strengthening their domestic telecommunications
services sector.
(d) Members shall give special consideration to opportunities for the least developed
countries to encourage foreign suppliers of telecommunications services to assist in
the transfer of technology , training and other activities that support the development
of their telecommunications infrastructure and expansion of their telecommunicationsservices trade.
F. SCM A
GREEMENT
Article 8
(Identification of Non-Actionable Subsidies)
8.2 Notwithstanding the provisions of Parts III and V, the following subsidies shall be non-
actionable:
(a) assistance for research activities conducted by firms or by higher education or
research establishments on a contract basis with firms if:
the assistance covers not more than 75 per cent of the costs of industrial research or
50 per cent of costs of pre-competitive development activity;
and provided that such assistance is limited exclusively to:
(i) costs of personnel (researchers, technicians and other supporting staff
employed exclusively in the research activity);
(ii) costs of instruments, equipment, land and buildings used exclusively and
permanently ( except when disposed of on  a commercial basis) for research
activity;
(iii) costs of consultancy and equivalent services used exclusively for the research
activity, including bought-in research, technical knowledge, patents, etc.;
(iv) additional overhead costs incurred directly as a result of the research activity;
(v) other running costs (such as those of materials, supplies and the like),
incurred directly as a result of the research activity.
It will be useful for the Working Group to consider, inter alia , in its future meetings, steps
that might be taken within the mandate of the WTO to increase flows of technology as envisaged in
the above provisions, to developing countries in accordance with the mandate contained in
Paragraph 37 of the Doha Ministerial Declaration.
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