 RESTRICTED  WORLD TRADE  
ORGANIZATION  IP/C/M/42 
4 February 2004 
 (04-0402) 
Council for Trade-Related Aspects 
of Intellectual Property Rights   
 
 
 
MINUTES OF MEETING 
 
Held in the Centre William Rappard  
on 18 November 2003  
 
Chairman:  Ambassador Vanu Gopala Menon (Singapore) 
 
 
 The present document contains the record of the discussion which took place during the 
TRIPS Council meeting held on 18 November 2003. 
 
Subjects discussed             P a g e  N o s . 
 
A. NOTIFICATIONS UNDER PROVISIONS OF THE AGREEMENT .......................................................2  
B. FOLLOW -UP TO REVIEWS ALREADY UNDERTAKEN ..................................................................3  
C. TRANSITIONAL REVIEW UNDER SECTION 18 OF THE PROTOCOL ON THE ACCESSION 
OF THE PEOPLE 'S REPUBLIC OF CHINA ........................................................................................5  
D. REVIEW OF THE PROVISIONS OF ARTICLE 27.3(B)..................................................................18  
E. RELATIONSHIP BETWEEN THE TRIPS  AGREEMENT AND THE CONVENTION ON 
BIOLOGICAL DIVERSITY ...........................................................................................................18  
F. PROTECTION OF TRADITIONAL KNOWLEDGE AND FOLKLORE ................................................18  
G. REVIEW OF IMPLEMENTATION OF THE TRIPS  AGREEMENT UNDER ARTICLE 71.1................24  
H. REVIEW OF THE APPLICATION OF THE PROVISIONS OF THE SECTION ON 
GEOGRAPHICAL INDICATIONS UNDER ARTICLE 24.2...............................................................24  
I. DECISION ON THE IMPLEMENTATION OF PARAGRAPH 6 OF THE DOHA DECLARATION 
ON THE TRIPS  AGREEMENT AND PUBLIC HEALTH .................................................................26  
J. REVIEW UNDER PARAGRAPH 2 OF THE DECISION ON THE IMPLEMENTATION OF 
ARTICLE  66.2  OF THE TRIPS  AGREEMENT ..............................................................................29  
K. TECHNICAL COOPERATION AND CAPACITY -BUILDING ............................................................32  
L. INFORMATION ON RELEVANT DEVELOPMENTS ELSEWHERE IN THE WTO.............................33  
M. OBSERVER STATUS FOR INTERNATIONAL INTERGOVERNMENTAL ORGANIZATIONS ..............33  
N. ANNUAL REPORT TO THE GENERAL COUNCIL .........................................................................34  
O. OTHER BUSINESS ......................................................................................................................34  
 IP/C/M/42 
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 A. N
OTIFICATIONS UNDER PROVISIONS OF THE AGREEMENT  
(i) Notifications under Article 63.2  
- Notifications from Members whose tr ansitional periods under Article 65.2 or 
65.3 expired on 1 January 2000 or acced ed to the WTO after that date 
1. The Chairman  drew attention to the Secretariat's upda ted note reflecting the status of the 
notifications received so far (JOB(03)/102).  The note showed from which of the Members in question 
notifications had been received and/or circulated  by 26 May 2003.  Since the Council's meeting in 
June 2003, the following notifications had been recei ved:  Congo had notified a number of laws and 
regulations related to industrial property and provided information on its application of national and 
MFN treatment as well as Article 70.8 of the Agreem ent;  the United Arab Emirates had notified the 
Council that its new intellectual property laws had entered into force and submitted an English 
translation of one of these laws – the translation of the two other laws was being finalized;  the two 
newly acceded Members, Armenia and the Former Yugoslav Republic of Macedonia had notified 
their TRIPS implementing legislation.  From the 81 Members in question, there were now four who 
had not yet submitted any notification concerning th eir implementing legislation, namely Papua New 
Guinea, Saint Kitts and Nevis, Saint Vincent and the Grenadines, and Swaziland.  Notifications from 
a number of other Members were incomplete.  Recalling that pursuant to Article 63.2 of the 
Agreement the notifications of the laws and re gulations in question were generally due as of 
1 January 2000, he urged all Members with unf ulfilled notification obligations to submit the 
outstanding material without delay. 
2. The representative of Egypt  said that document JOB(03)/102 incorrectly stated that the 
notifications made by his country did not concer n all areas of intellectual property, since the 
notifications in question concerned all areas of inte llectual property covered by the Agreement.  He 
hoped that this would be corrected in the next update to the document. 
- Notifications from other Members and notifications of amendments of laws 
notified earlier 
3. The Chairman  informed the Council that, since its June meeting, the following updates to 
earlier notifications of laws and re gulations had been received:  Japan had notified the "Basic Law on 
Intellectual Property" of 2002 and the amended Copyright Law.  China had notified the implementing 
regulations of the Copyright Law and the Tradem ark Law and an amendment to the implementing 
rules of the patent law;  furthermore, it had prov ided revised translations of two regulations it had 
notified earlier.  The Kyrgyz Republic had notified am endments to its legislation.  These notifications 
would be available in the IP/N/1/- series of documents. 
4. The Chairman drew attention to questions po sed by Japan to Thailand (IP/C/W/409), which 
related to the notification of certain Thai laws and regulations circulated  on 21 and 28 March 2003. 
5. The representative of Japan  noted that the laws and regulati ons notified by Thailand had been 
circulated in document IP/N/1/THA/1 in March 2003.   He expressed his appreciation of Thailand's 
efforts to keep the implementation of its TRIPS oblig ations transparent.  He expected responses to the 
questions contained in document IP/C/W/409 in orde r to clarify the consistency between Thai laws 
and the TRIPS Agreement.  The representative of Thailand  said that his delegation was finalizing its 
responses and that they would be transmitted to the Secretariat in due course.  The representative of 
Japan  expressed his gratitude for the forthcoming responses. 
6. The Council took note  of the statements made.  IP/C/M/42 
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(ii) Notifications under Article 1.3 and 3.1  
7. The Chairman said that the Former Yugoslav Republic of Macedonia had made a notification 
under Article 1.3 of the Agreement concerning the cr iteria of eligibility for protection applicable to 
the protection of producers of phonograms.1 
(iii) Notifications under Article 69  
8. The Chairman  said that, since the Council's last meeting in June, a new notification of a 
contact point under Article 69 of the Agreemen t had been received from Armenia.  Updated 
notifications had been received from Austria, Nicaragua, Sweden and Chinese Taipei.  These 
notifications were being circulated in an addendum  to document IP/N/3/Rev.7.  There were now 118 
Members who had notified contact points under Article 69. 
B. FOLLOW -UP TO REVIEWS ALREADY UNDERTAKEN  
(i) Follow-up to the reviews initiated since April 2001 
9. The Chairman  said that, as requested by the Council at  its meeting in June, the Secretariat had 
updated its informal note that listed all the outstanding  material required to complete the reviews that 
the Council had already undertaken (JOB(03)/209).  The table attached to the note listed 18 Members 
whose reviews had been initiated at the Council's meetings since April 2001 but which remained on 
the Council's agenda.  In addition, the note liste d a number of Members whose reviews had already 
been deleted from the Council's agenda, but to whom further questions had been posed. 
10. He recalled that he had informed the Council at its meeting in June that Brazil and the 
Philippines had provided responses to all outstandi ng questions just prio r to that meeting.  
Furthermore, China had provided responses to all of the outstanding questions posed to it in the 
context of its regular review initiated in Sept ember 2002, and all of these responses had been 
circulated to Members prior to the present meeting.   He proposed that the regular review of the 
legislation of Brazil, China and the Philippines be  deleted from the agenda, it being understood that 
any delegation should feel free to revert to an y matter stemming from these reviews at any time. 
11. The Council so agreed . 
12. The representative of Switzerland  thanked Brazil and the Philippines for their replies to the 
questions posed by his delegation.  He also th anked Congo for its reply to one follow-up question 
posed by his delegation, and said that he was looki ng forward to the responses to the two outstanding 
questions. 
13. The representative of Japan  said that he appreciated China's efforts to develop and improve its 
regulatory framework for IP and expected China to continue this effort.  He thanked China for its 
responses to the follow-up questions posed by Japan .  However, since his delegation had accessed the 
responses from the WTO website just before the meeting and had not had enough time to examine 
them, his delegation reserved its right to subm it additional follow-up ques tions related to these 
responses.  He said that certain new Chinese legislati on had not yet been notified to the Council, such 
as the provisions dealing with the determination a nd protection of well-known marks, promulgated in 
June 2003.  All relevant legisla tion should be notified to the Council as soon as possible so as to 
enable Members to review it. 
                                                      
 1 Subsequently circulated in document IP/N/2/MKD/1. 
 IP/C/M/42 
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14. The Chairman
 turned to the remaining 15 Members whose reviews had been initiated since 
April 2001 but which remained on the Council's agenda , namely Congo, Cuba, Egypt, Fiji, Grenada, 
Mauritius, Moldova, Nigeria, Pakistan, Qatar, Saint Kitts and Nevis, Saint Vincent and the 
Grenadines, Suriname, Swaziland, and Zimbabwe.  Since the Council's June meeting, Congo had 
provided responses to a number of outstanding questi ons, but there were still a few questions pending.  
A communication had been received from Suriname providing information on the status of the 
preparation of its new legislation on industria l property, and on copyright and related rights 
(IP/C/W/283/Add.4).  Furthermore, he recalled that , at the Council's meeting in September 2002, 
Canada, Switzerland and the United States had requested Mauritius to  respond to the questions they 
had posed to it on the basis of the new legislati on that was pending at that time, and noted that 
Mauritius had notified its new industrial property legislation earlier in 2003. 
15. The representative of Cuba  said that she was hoping that two of the three pending decree-laws 
would be implemented in the first quarter of 2004. 
16. The representative of Egypt  said that his delegation would shortly respond to the outstanding 
questions and notify an Executive Order, whose translation from Arabic to English was being 
finalized. 
17. The representative of Nigeria  said that his delegation would provide responses to the 
outstanding questions shortly. 
18. The representative of Pakistan  said that, due to technical re asons, his delegation still had not 
received a response from the capital to the one outs tanding question.  However, he was given to 
understand that the response would be sent within the next week or so. 
19. The Chairman  said that the Secretariat note also listed five Members, namely Argentina, 
Dominica, Gabon, Ghana and Guyana, whose review s 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 reviews at any time.  In this connection, ce rtain questions had been raised with regard to the 
implementing legislation of these countries. 
20. The representative of Argentina  said that responses to the pending questions would be 
communicated as soon as her delegation received them from the respective authorities. 
21. The representative of Gabon  said that his delegation was still waiting for responses from his 
capital and that they would be communicat ed as soon as his delegation received them. 
22. The Council took note  of the statements made and agreed  to revert to this matter at its next 
meeting. 
(ii) Arrangements for the reviews of national  implementing legislation of Armenia and 
the Former Yugoslav Republic of Macedonia 
23. The Chairman  recalled that the Council had agreed, at its  meeting in June, that it would take 
up the reviews of national implementing legislation of two newly acceded Members, namely Armenia and the Former Yugoslav Republic of Macedonia, at its first meeting in 2004, and that it would revert 
to the arrangements for these reviews, in particular  the deadlines for questions and responses, at the 
present meeting.  Armenia's notification of its TRIP S laws and regulations had been circulated in 
August in the IP/N/1/-series of documents.  The notification of the Former Yugoslav Republic of 
Macedonia, dated 22 October 2003, was being circ ulated in the IP/N/1/-series of documents. 
24. In accordance with the standard procedures for th e review of legislation and in light of the 
fact that the Council's first meeting in 2004 had been  tentatively scheduled for 8 to 10 March, the  IP/C/M/42 
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Chairman proposed that the Council set the following  target dates for the submission of questions and 
answers in these reviews:  (i) questions should no rmally be submitted to Armenia and the Former 
Yugoslav Republic of Macedonia, with a copy to th e Secretariat, 10 weeks before the meeting in 
March 2004.  However, given the holiday season, he  suggested shortening this period by one week, 
and set the target date at 5 January  2004;  (ii) responses to questions posed within that deadline should 
be submitted by 9 February 2004, i.e.  f our weeks before the meeting in March 2004. 
25. The Council so agreed . 
C. TRANSITIONAL REVIEW UNDER SECTION 18 OF THE PROTOCOL ON THE ACCESSION OF THE 
PEOPLE 'S REPUBLIC OF CHINA  
26. The Chairman  recalled that paragraph 18 of Chin a's Protocol on Accession required the 
TRIPS Council to review the implementation by Ch ina of the TRIPS Agreement each year for eight 
years and report the results of such review promp tly to the General Council.  The TRIPS Council had 
taken up the first review under paragraph 18 at its  meeting in September 2002 in combination with its 
normal review of China's TRIPS im plementing legislation.  The repor t on the first transitional review 
had been forwarded to the General Council in document IP/C/26.  He further recalled that 
paragraph 18 required China to pr ovide relevant information, in cluding information specified in 
Annex 1A, to the TRIPS Council in advance of th e review.  He informed the Council that the 
information submitted by China to it under Anne x 1A of the Protocol of Accession, dated 
17 November 2003, had been circulated in documen t IP/C/W/415.  Questions and/or comments in 
connection with the transitional review had been submitted by Japan, Chinese Taipei, the European 
Communities and the United States, which had been circulated in documents IP/W/410, 411, 413 and 
414 respectively.   
27. The representative of China  said that, prior to the Council's meeting, China had submitted to 
the TRIPS Council the information required by Annex 1A to the Protocol on Accession.  In order to 
ensure a better understanding of the status of protec tion of intellectual property rights (IPRs) in China, 
her delegation had also made available to the meeting, as a room document, a White Paper on 
"Intellectual Property Protection in 2002 in Chin a".  This paper presente d a detailed and updated 
account of the developments with regard to the IPRs in China, covering patents, trademarks, 
copyright, new plant varieties, etc.  A considerable part of the report was devoted to the efforts and 
achievements in regard to the enforcement of IPR le gislation by the relevant government authorities.  
She said that these two documents provided Member s with a comprehensive and objective picture on 
the implementation of TRIPS-related commitments by China, and also served as a useful source of 
information to address some of their concerns. 
28. She said that a large volume of questions had been posed to China in  the context of the 
transitional review mechanism (TRM).  While wishi ng to ensure that the questions would be dealt 
with in the most responsible and serious manner, she pointed out that the communications from some 
Members had reached her delegation only very recently, leavi ng China with little time for necessary 
preparation.  She said that China attached great  importance to IP protection and the TRM in the 
TRIPS Council.  A strong team had been put toge ther with officials and experts from various 
departments, including the Ministry of Commerce,  State Administration of Industry and Commerce, 
National Copyright Administration, State Intellectua l Property Office, and the Legal Affairs Office of 
the State Council.  She said that their presence was intended to improve th e quality of information 
exchange with Members. 
29. Turning to the comments made and questions posed to China, a second representative of 
China said that his delegation was grateful that some Members had commented on the IP protection 
regime in China.  He found this to be constructive.   It was the belief of the Chinese Government that 
enhancing IPR protection was a long-term course of action with strategic significance.  Since the 
beginning of the 1980s, China had gradually establishe d an excellent IPR legislation and enforcement IP/C/M/42 
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mechanism.  In China's Criminal Law, there were  specific provisions on IPR crimes.  China had also 
set up special IPR courts to hear cases involving IP R infringements.  China had modified its laws and 
regulations in relation to IPRs, making them compa tible with international conventions, including the 
TRIPS Agreement.  He said that the Chinese Go vernment would fulfil its commitment to further 
improve its IPR system, fully implement various IPR laws, upgrade IPR protection with adequate 
measures to keep pace with international standa rds, and create a sound legal environment for the 
introduction of foreign advanced technologies, fund s and management skills.  At the same time, the 
Chinese Government would also implement effective IPR policies and strategies, reinforcing its efforts to boost technological innovation with IPR protection, strengthening IPR administration and 
guiding all economic entities to enhance their compet ency in management, applications and protection 
of IPRs as well as the ability to meet internatio nal competition, and consequently improve the 
technological and comprehensive forces of China.   The Chinese Government would, as always, 
pursue IP protection policy and effectively safegua rd the legitimate interests of both Chinese and 
foreign right owners.  China was willing to furt her cooperate and communicate with other Members 
on the basis of equality and mutual benefits. 
30. As to the principle of transparency and notifi cation obligations, he said that China respected 
this principle and, since its accession, had fully impl emented its obligations in the light of the TRIPS 
Agreement and its accession commitments.  Pursuant to Article 63.2 of the TRIPS Agreement, China 
had notified ten main dedicated laws relating to IPRs  in full text and a series of laws and regulations 
in summary, including the Criminal  Law, the Anti-Unfair Competition Law, and the Civil Procedure 
Law.  Following the TRIPS Council's decision of  21 November 1995, China had also provided 
information on its enforcement regime in a notifi cation of its responses to the Checklist of Issues on 
Enforcement.  He said that China's IPR laws a nd regulations were characterized by their broad 
coverage and great quantity.  A large volume of j udicial interpretations a nd sub-national legislation 
had added to the complexity.  The notification to the WTO and the provision of requested information 
had been a huge task, not the least of which was translation.  As a developing Member, however, 
China would redouble its efforts to further impr ove the notification process while requesting the 
necessary assistance on translation according to Ar ticle 2.5 of the Agreement between the World 
Intellectual Property Organization and the World Trade Organization.  As a major arm in IP 
enforcement, the judiciary departments in China were  also subjected to the pr inciple of transparency, 
which was evidenced by the public soliciting of comme nts for judicial interpretations.  The Supreme 
People's Court would further broa den the scope of commenting in the course of interpretation.  
Meanwhile, all the TRIPS-related laws, regulati ons, and other regulatory documents would be 
published in the Chinese Foreign Trade and Eco nomic Cooperation Gazette as well as the bulletins 
and the websites of the relevant government depart ments.  Members could also access the enquiry 
point set up by the Chinese Government for interesting information. 
31. Regarding the recent reorganization of the r esponsibilities in China for intellectual property 
matters, he said that there had been no changes to  the responsibilities of China's IP agencies.  The 
Bureau of Economic Crime Investigation under the Mi nistry of Public Security was responsible for 
the investigation of IP crimes.  The Division of  Economic Crime under the Supreme Procuratorate 
was responsible for the prosecution of IPR crimes.  Number 2 Criminal Tribunal of the Supreme People's Court was in charge of IPR criminal cases.  As to standards for IPR crimes, he said that  two 
laws applied at the central and local levels, that is, the Interpretation on Specific Application of Law 
on Several Questions of Trial for Illegal Publica tion Criminal Cases by the Supreme People's Court 
and the Regulations on Standards for Initiating Cases In Econo mic Crimes by the Supreme People's 
Procruratorate and the Ministry of Public Security. 
32. With respect to the consistency of China's ad ministrative actions with Articles 41 through 49 
of the TRIPS Agreement, he said that administra tive responsibility must be imposed in accordance 
with the Administrative Penalty Law or the spec ial provisions of the separate law.  Some 
administrative remedies, such as orders requiring th e suspension of infringing acts, were similar to 
civil remedies in form, but they were different in nature.  In  cases where the form of administrative  IP/C/M/42 
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remedies seemed to be similar to civil remedi es, Articles 41 through 48 of the TRIPS Agreement 
should be applied to administrative remedies.  Some civil remedies provided for in Articles 41 
through 48, such as an order requiring the payment of damages to right holders, could not apply to 
administrative cases in China, since neither the Administrative Penalty Law nor the separate law 
granted such a power to administrative authorities. 
33. The provisions on administrative enforcement in  the Chinese trademark system complied with 
Article 49 of the TRIPS Agreement.  The procedures were fair and equitable, including the rules on 
the presentation of evidence and decisions on the merits  of the case in writing, etc.  The form, legal 
basis and nature of administrative remedies were  different from those of criminal remedies.  
Therefore, the Chinese administrative remedies c ould not be covered by Article 61 of the TRIPS 
Agreement.  Nevertheless, China's criminal le gal system met the requirements of Article 61. 
34. The representative of China said that the revi sion of the Chinese Civil Law was an important 
task for legislators.  The ninth National Congress ha d enacted and revised a draft code.  Due to the 
rapid social and economic development in China,  it was necessary to regulate and rewrite some 
contents of that draft.  China needed to do fu rther research and investigation on this matter.   
35. China had made every effort to enhance its ad ministrative transparency.  This included two 
main aspects.  First, the legislators had enacted the Legislation Law, the Regulations on the Drafting Procedure of Administrative Regulations, and the Regulations on the Drafting Procedure of Rules, 
which standardized the operating procedure of ad ministrative power.  Second, the Administrative 
Permission Law would be enforced in 2004.  The Law further regulated the boundary, conditions and 
procedure of administrative permission.  It provide d that only laws, regulations and local regulations 
could establish administrative permission and lo cal laws could establish interim administrative 
permission.  However, the departmental rule of  the State Council could not establish administrative 
permissions.  Thanks to these laws and regulations , administrative transparency had been increasing 
remarkably and the efficiency of administration would be further promoted. 
36. In regard to the relationship between laws, regul ations and rules, he said that, according to the 
Legislation Law, the Regulations on the Drafting Procedure of Administrative Regulations and the 
Regulations on the Drafting Procedure of Rules, the e fficacy of laws and regulations was prior to that 
of local legislation and departmental rules, and th e efficacy of local regulations was prior to local 
administrative rules.  Where local regulations conflic ted with the regulations of the State Council, the 
National Congress had the authority to review th em.  When local rules conflicted with the 
departmental rules of the State Council, the St ate Council would be responsible for the review. 
37. Regarding patent pendency he said that, in 2002, the State Intellectual Property Office 
(SIPO) had received 252,631 patent applications, including inventi ons, utility models and industrial 
designs, an increase of 49,048 over the previous year.  The growth rate was 24.1 per cent.  951 international applications had been filed and 697 requests had been made for the international 
preliminary examination.  738 requests for the international preliminary examination had been 
completed.   
38. To date, the State Food and Drug Administration (SFDA) had not found any application for 
drug registration which used undisclosed information.  In regard to data exclusivity provided by the 
SFDA, he referred to the relevant regulations.  Pursuant to Article 35.2 of the Rules on 
Implementation of Drug Law, the SFDA would not  render a marketing approval pursuant to an 
application by taking advantage of other applicants ' undisclosed information.  Pursuant to Article 14 
of the Measures on Regulation of Drug Registration,  when putting forward an application for drug 
registration, the applicant should ensure that all data submitted had been obtained independently.  
Pursuant to Article 21 of the Measures on Regulatio n of Drug Registration, when putting forward an 
application for drug registration with foreign data being introduced, the applicant should provide the 
verification of the legal origin of data.  Pursuant  to Article 22 of the Measures on Regulation of Drug IP/C/M/42 
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Registration, the SFDA was entitled to require applicants to repeat the test in order to ensure that the 
relevant data had been obtained i ndependently.  Pursuant to Article  52, during the period of new drug 
approval, the technical requirements for a new dr ug would not be lowered because the drug of the 
same class had received a marketing approval abroad , that is to say, the situation of documentation 
dependence did not exist.  He further said that, pursuant to Article 35.2 of the Rules on 
Implementation of Drug Law, the SFDA would not render marketing approval to an application 
taking advantage of other applicants' undisclosed information.  The SFDA had the obligation to 
protect the undisclosed test data obtained indepe ndently and other relevant data submitted by the 
applicant.  Those illegally disclosing undisclosed data would be punished.  The SFDA would accept a 
relevant application in accordance with Article  35.3 of the Rules on Implementation of Drug Law 
under the condition that measures had been taken, as th e public interest required, to protect the data 
against unfair commercial use.  He said that, besides Article 120 of the Civil Procedure Law and Article 48 of the Provisions Regarding Evidence in Ci vil Litigations, the other provisions of the Civil 
Procedural Law and other laws, such as the Law on Lawyers and the Law for Promotion of Science 
provided protection for confidential information during civil litigation. 
39. Referring to paragraph 256 of the Report of th e Working Party on the Accession of China, 
stating that China's IPR laws provided that any foreigner would be treated in accordance with any 
agreement concluded between the foreign country and China, or in accordance with any international 
treaty to which both countries were party, or on the b asis of the principle of reciprocity, he said that 
China would observe the TRIPS Agreement, para graph 256 of the Report of the Working Group on 
the Accession of China, and the terms in the inte rnational treaties or conventions China had signed 
and/or joined. 
40. With respect to trademarks, he said that Ch ina had been protecting foreign well-know marks 
in the light of international conventions.  In line with the Provisions on the Determination and 
Protection of Well-Known Marks, which had come into force on 1 June 2003, the municipal level 
administrative authorities for industry and commerce should, within 15 working days from the date of 
the acceptance of the request of the interested pa rty, report and send all the documents to the 
provincial administrative authorities for industry a nd commerce, if the case satisfied the requirements 
under Article 13 of the Trademark Law.  The provincial authorities should, within 15 working days from the date of acceptance of the request of the inte rested party, report and send all the documents to 
the Trademark Office (TMO).  The TMO should make  its determination within six months from the 
date of the receipt of the relevant documents.  Although it had received some domestic and foreign 
requests for the determination of well-known mark s, the TMO had not yet determined well-know 
trademarks under the new provisions. 
41. Turning to the legal differences between th e terms "well-known marks", "famous marks", 
"provincial famous marks", and "f amous brands", he said that a well-known trademark referred to a 
mark that was widely known to the relevant sect ors of the public and enjoyed a relatively high 
reputation in China.  Relevant sectors of the pub lic should include consumers of the type of goods 
and/or services to which the mark applied, ope rators who manufactured the said goods and/or 
provided the said services, and sellers  and other persons involved in the channels of distribution of the 
type of goods or services to which the mark applied.  The Chinese term "Zhuming shangbiao" 
(famous trademarks) referred to marks which were  determined by the administrative authorities for 
industry and commerce at the provincial, municipal,  or autonomous region level, based upon the local 
legislations, local government regulations or othe r administrative provisions, having a relatively high 
reputation and a greater influence within the specific jurisdiction.  A provincial famous mark was the same as "Zhuming shangbiao".  The Chinese term "You Ping Ming Pai" (famous brands) was not a 
legal term in the field of trademarks.  The TMO neve r used this term.  In addition, the TMO had used 
to have a list of marks for enhanced protection,  which had been based upon the frequency and scope 
of trademark infringement  However, this practice had been abolished.  IP/C/M/42 
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42. With respect to the determination of famous trademarks, he said that the provincial or 
municipal authorities had the authority to make such decisions, and were not required to report to the 
TMO.  Therefore, the TMO had no such information.   
43. In regard to the protection of three dimensional marks and colour marks, he said that by the 
end of October 2003, the TMO had received 1398 thre e-dimensional mark applications, among which 
343 had been approved for registration.  For some  technical reasons, the TMO had no statistics on 
colour marks.  In addition, smell and sound mark s were non-registrable under the Trademark Law.  
44. With respect to the application of the translite ration or translation of others' marks, he said 
that transliteration or translation was one of the st andards to determine identity or similarity.  Thus, 
such applications could be refused during the trad emark examination.  Moreover, interested parties 
could file a request to the trademark review a nd arbitration bureau throu gh the opposition or dispute 
procedure.   
45. Article 15 of the Trademark Law provided that  where the agent or representative of the 
owner of a mark applied for registration in his ow n name without the owner's authorization and the 
owner opposed the registration, the application should  be refused and the use should be prohibited.  
This problem could be solved thro ugh the opposition or dispute procedure.  The interested party could 
file an application with the TMO or the Tradem ark Review and Arbitration Bureau (TRAB).  He 
noted that, by the end of September 2003, the number of pending cases in the TRAB was 31,924.  The number of pending opposition cases at the TMO was 16,386.  The pending new applications for 
registration at the TMO were 380,000. 
46. With respect to the assignmen t or licensing of trademarks, he said that no government 
approval of the terms of a licence or assignment was required.  However, a trademark licence must be 
reported to the TMO for the record, regardless of  whether the trademark owners were Chinese or 
foreign.  The recording was not required for an assignm ent contract.  As for the effect of the recording 
of a licence contract, although there was no expres s provision in the Trademark Law, the judicial 
interpretation provided that, where the trademark lic ence contract was not recorded at the TMO, it 
should not affect its effect, unless otherwise agreed be tween the interested parties, but an unrecorded 
licence contract should not resist a third party wi th good faith.  In addition, the Trademark Law 
provided that the assignment of a registered tradem ark should be published after it was approved.  The 
assignee should enjoy the exclusive right to use the mark from the date of the publication. 
47. Turning to geographical indications, he said that, to date, the TMO had received 260 GI 
applications for the registration of certificati on marks, 100 of which had been approved.  The 
registrant of a certification mark could file a complaint with the local authorities for industry and 
commerce or might file a law suit at the People's Court requesting to stop an infringement. 
48. With respect to the exceptions to GI protec tion provided for in Article 24 of the TRIPS 
Agreement, he said that every country might encoun ter the problem of earlier registered trademarks 
and the GIs.  Article 16 of the Trademark Law w as substantially in compliance with the exceptions 
provided for in the TRIPS Agreement.  He said that China had acceded to the WTO on 
11 December 2001 and the latest amendment of the Trademark Law had come into force on 1 December 2001.  Those marks which had obtained re gistration in good faith would continue to be 
valid under Article 16 of the Trademark Law, which referred to marks registered before this date 
rather than after it. 
49. The State General Administration for Quality  Supervision, Inspection and Quarantine 
(AQSIQ), in accordance with the Regulation for the Protection of Products with Geographical 
Indications, carried out the protection of GIs.  If a tr ademark or certification mark already existed, the 
AQSIQ would still provide GI protection from diffe rent respects and functions according to the 
Regulations and the related stipulations in the TRIPS Agreement.  The following action had been IP/C/M/42 
Page 10  
 
taken against the infringement of GIs:  the AQSIQ  was the authorized government agency with two 
major functions, namely comprehensive administra tion and law enforcement.  The agencies of the 
AQSIQ executed random checks and law enforcem ent against the infringements of GIs and 
trademarks in accordance with the Law on Pr oduct Quality, the Law on Entry and Exit of 
Commodities Inspection, Standardization Law of the People's Republic of Chin a, and other relevant 
laws and regulations. 
50. Turning to the protection of copyright, the re presentative of China said that a series of 
activities had been organized to study and prove th e necessity and feasibility of the provisions that 
might be introduced in the regulations on the protection of the right to communication through information networks in respect of specific copy right matters.  For example, in October 2002, the 
State Council had sent a high level delegation to Europe  to investigate copyright systems in the digital 
network environment.  In November 2002, the Na tional Copyright Administration of China (NCAC) 
organized a delegation to visit WIPO and exchange views with the organization in respect of China's 
accession to the two new treaties.  In July 2003, th e NCAC had held a forum on the Internet Treaties 
and copyright protection in the digital network e nvironment and listened to  opinions from legal and 
network circles.  In November 2003, the NCAC woul d invite WIPO experts to China to give touring 
lectures on the two new treaties.  The competent aut horities had also carried out  various other relevant 
activities.  With regard to legislation on copyright protection of digital networ ks, he said that there 
was still much work to be done by the competen t authorities in a thorough and careful manner, 
including the investigation and study of th e legislative experiences of other Members. 
51. Regarding the protection of temporary copies, he said that such term was used neither in the 
Berne Convention nor in the TRIPS Agreement.  In regard to re-publication of materials in Chinese 
textbooks, he said that, to date, the NCAC had not yet obtained any information in this respect from 
foreign right owners or  domestic publishers. 
52. In regard to the reasonable royalty to be pr ovided for under Article 10 of the Regulations for 
Protecting Software, he said that so far no copyright  administrative department had dealt with such a 
case, and there had been no news reported concerning th e relevant judicial deci sion.  In addition, he 
said that under Article 30 of the Regulations, the "hol der of copies of a piece of software" was defined 
as the end user of software who had performed a reasonable duty of care and had obtained a copy of 
software in good faith.  Accordingly, it could not be inconsistent with Article 13 of the TRIPS 
Agreement.  If the holder of the copy of software  used an infringing copy, the person was obliged to 
prove that he or she had never known, or had r easonable grounds to know, that such a copy was an 
infringing one. 
53. With respect to the use of software for th e purpose of study and research provided for in 
Article 17 of the Regulations, he said that Article  17 contained the same principles as adopted in 
Article 22 of the Copyright Law concerning fair use.  According to Article 21 of the revised Implementing Regulations of the Copyright Law,  fair use should not conflict with the normal 
exploitation of the work and should not unreasonably prejudice the legitimate interests of the right 
holder.  Consequently, Article 17 of  the Regulations should be deemed  as consistent with Article 13 
of the TRIPS Agreement. 
54. In accordance with Article 47 of the Copyrigh t Law, copyright administrative departments 
had been authorized to take action against an Internet Service Provider (ISP) who was illegally 
making the content available to the public or downloading it. 
55. In China, if an infringement took place on the Internet, the infringer, whether an individual 
or a legal entity, should bear the corresponding le gal liabilities pursuant to the Copyright Law.  He 
added that the NCAC had not issued any directiv e regarding the proper use of the Internet in 
universities, government offices or state-owned corporations.  IP/C/M/42 
 Page 11 
 
 
56. Regarding the prosecution of hackers, he said that, in February of 2002, the copyright 
administrative department of Zhejiang province had dealt with a case concerning "the US Chemistry 
Digest Disc Publication" pirated by means of ille gal decoding.  Two suspects had decoded a lawful 
copy of the disc, made reproductions and then sold them on the Internet by sending batches of mails.  The copyright administrative department had orde red the decoder and the two suspects to cease the 
infringing acts and confiscated their unlawful income .  In addition, the competent department had 
confiscated the equipment and tools mainly used to make infringing copies, destroyed the infringing 
copies and imposed a forfeit on the two suspects.  Regarding the removal or alteration of electronic 
rights' management information, he said that this  issue was not covered by the TRIPS Agreement but 
by the WCT.  Nevertheless, the issue was under consideration in China. 
57. In respect of the Copyright Law, the Regula tions neither decreased nor increased the burden 
of proof on the right holder.  On the other hand,  the revised Copyright Law increased the burden of 
proof on the party against which an action was brought by adopting Article 43.2 of the TRIPS 
Agreement.  The Regulations reflected the legisla tive purpose of the Copyright Law.  According to 
Article 3.2 of the Regulations, administrative procedures could be initiated not only on the basis of 
complaints from right holders but also with the removal of cases by othe r relevant departments, 
reports from other persons finding out infringements, or initiative investigations by administrative 
departments.  In accordance with the Regulations, the NCAC had to investigate the case with a great 
impact in the country, which was determined at the NCAC's discretion.  In general, an infringement 
should be dealt with by the local administrative department of the place where the infringement was 
committed. 
58. With respect to the negative prescription of admi nistrative penalty, he said that Article 9 of 
the Regulations was consistent with Article 29 of the Administrative Penalty Law of China, 
i.e., where an illegal act was not discovered within two years of its commission, administrative penalties should no longer be imposed, except if otherwise prescribed by the law.  The period of time prescribed should be counted from the date the illegal act was committed.  If the act was of a 
continual or continuous nature, it should be co unted from the date the act terminated.  The 
prescription of administrative penalty was different from that of a civil action in that the latter was calculated from the date on which the injured pa rty had known or had had the reasonable grounds to 
know that his rights had been infringed while the fo rmer was calculated from the date on which the 
illegal act had taken place or stopped. 
59. Regarding the identification of holders of copyrigh t, he said that the copy of a work with a 
complainant's name on it might be deemed as a proof of the right holder's identification.  A copyright 
registration was not necessarily required for complainan ts to apply to administrative procedures.  The 
expression "parties' names" included not only the name of the right holder but also that of a complaining party.  Otherwise, an administrative de partment could hardly investigate a case or render 
specific administrative penalties without having ob tained sufficient information concerning the 
complaining party, or without having known the exact complaining party.  An administrative 
department might not accept an application for administrative procedures if it was not in charge. 
60. He said that the expression "person who has a burden of proof" as men tioned in Article 16 
of the Regulations referred to the complaining part y but not the right holder.  The expression "parties" 
in the same Article referred to both the right holde r and the complaining party.  Whether an illegal act 
was slight or not was determined by the admini strative department according to the concrete 
circumstances of each case. 
61. Regarding the auction or re-selling of faciliti es used for making infringed goods, he said that 
the person who bought such facilities must observe the law.  Moreover, such facilities could be 
bought only by factories in lawful opera tion and with the requisite qualifications. IP/C/M/42 
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62. With regard to the trial term, he said th at Chinese courts would strictly follow the 
Regulations on Civil Procedure Law and judicial inte rpretation.  According to Article 147 of the Civil 
Procedure Law, the parties who could not accept a judgement or decision might lodge an appeal.  According to Article 178 of the Civil Procedure Law,  the parties could apply for another trial to the 
same court or the superior court for those cases whic h had been effective.  Besides, the court or the 
procuratorate could start supervising procedures. 
63. The representative of China said that commercia l exporting belonged to  selling. According 
to the provisions of Chinese laws and judicial interpretations, the intellectual infringement crime of counterfeiting goods export might lead to more ser ious punishment in manners, methods or results, 
and the culprit could be punished  under more serious accusations.  Therefore, some of these 
intellectual infringement crimes were punished pursu ant to the conviction standards for "smuggling" 
or the conviction standards for "carrying out illegal business activities" in the same law.  Second, any 
of the actions which infringed upon copyright or circumvented a copyright technological protection 
measure for the purpose of producing, reproducing,  distributing and selling, would be directly 
convicted for the crime of infringing upon copyright.  Those who offered help for the above-
mentioned actions would be convicted for complicity .  If trafficking technological protection actions 
infringed the monopolization, franchising or restric tive dealing, the culprit would be directly 
convicted for the crime of selling infringing reproductions.  If simultaneously infringing the 
copyright, the culprit would be co-convicted for the crime of infringing upon copyright.  If for the purpose of reaping profits or where the amount of  illegal gains was huge, which accorded with the 
judicial stipulation, together with other serious ci rcumstances, a criminal conviction would also result.  
Layout-designs and utility and design patents were pr otected by China's Patent Law and the relevant 
regulations.  Forging others' patents with serious circumstances would be convicted of the crime of 
forging others' patents according to Article 216 of the Criminal Law. 
64. He said that the statistics of privately initia ted criminal cases accepted by the Chinese courts 
from January to September of 2003 were the followi ng:  one on copyright, one on commercial secrets, 
two on selling infringing reproductions, 18 on producing and selling counterfeit products. 
65. Apart from those noted in document IP/C/W/374, there were two main regulations 
concerning the circumstances in which investigations should be initiated by the procuratorate or by individuals:  the Interpretation Regarding Practical Questions Concerning the Judicial Application in 
Hearing the Illegal Publication Criminal Cases by the Supreme People's Court, and the Interpretation 
Regarding Practical Questions Concerning the Judi cial Application in Hearing Producing, Selling 
Counterfeit Goods Criminal Cases by the  Supr eme People's Court and the Supreme People's 
Procuratorate.  At this stage, the Supreme Peopl e's Court had been carrying out investigation and 
research concerning the responsibility and scientificity of the Standards for Initiating Criminal Cases.  
China would stipulate the interpretation with th e feasibility or submit the relevant law-making 
suggestions in the near future.  Regarding the step s which were being taken to facilitate the referral 
from administrative agencies, he referred to the Pr ovisions on the Transfer of Susceptible Criminal 
Cases by the Administration Organs for Law Enforcement.   
66. With respect to the guidelines for penalti es to be provided for wilful trademark 
counterfeiting or copyright piracy on a commercial scale, he said that Chapter 3 of the Chinese 
Criminal Law, revised in 1997, criminalized the d estruction of the socialist market economic order.  
Section 7 of Chapter 3 was set to target the infri ngement of IPRs and listed seven crimes in detail, 
covering trademarks, patents, copyright and c onfidential information.  In addition, on 
17 December 1998, the Supreme Court's Interpreta tion on the Practical Problems on Application of 
Laws Against Illegal Publications clarified the st andards of penalty regarding copyright offences, 
including the penalty against a crime of illegal bus iness operation.  Moreover, the Regulations of the 
Standards for Litigating Cases in Economic Crim es, which had been promulgated by the Supreme 
People's Procuratorate and the Ministry of Public Security on 18 April 2001, set the standards of 
prosecution in IPR offences except co pyright crimes.  He said that Section 7 of Chapter 3 of the  IP/C/M/42 
 Page 13 
 
 
Criminal Law and these two above-mentioned Interpre tations constituted the most fundamental basis 
for the protection of IPRs in terms of the criminal la w.  In addition, he said that Section 1 of Chapter 3 
of the Criminal Law, which criminalized the pr oduction and distribution of counterfeiting products, 
and the Supreme Court's and the Supreme People' s Procuratorate's Interpretation of Practical 
Problems Concerning Criminal Cases of Production a nd Distribution of Counte rfeiting Products were 
applicable to some of the IPR infringement cases, mainly trademark offences .  Relevant regulations 
could also be found in Articles 54 and 59 of the Tr ademark Law, Article 58 of the Patent Law, Article 
47 of the Copyright Law, Article 24 of the Softwa re Regulations, Article 40 of the New Species of 
Plant Regulations, and Article 21 of the Anti-Unfa ir Competition Laws.  Those infringing offences, 
once proved criminal, would be brought to justice by the Criminal Law. 
67. Regarding the interpretation of the notion "iden tical trademarks", he said that Article 5 of 
the Advice on the Practical Problems Concerning Ad ministrative Enforcement Regarding Trademark, 
which had been promulgated by the State Administ ration for Industry and Commerce, provided that 
"identical trademark means the characters, pictures and patterns or the combinations of the characters 
and pictures on two trademarks are identical or have no visual difference by comparison".  Article 9 
of the Supreme Court's Interpretation on Practical Questions Concerning Applicable Laws Governing 
Civil Disputes on Trademarks, which had been pr omulgated on 12 October 2001, stated that "an 
identical trademark defined in Item 1 of Article 52 of the Trademark Law means, by comparison, the trademark being accused of infringement generally has no visual difference from the registered trademark of the plaintiff".  Article 10 of this Inte rpretation also defined the principle on judgement of 
identical or similar trademarks as "(1) set the attention of the relevant public as the standard;  
(2) comparison should be made not only to trademar ks as a whole, but also to the major parts of 
them".  The process should only be undertaken wh en the compared objects were separated and 
isolated.  Therefore, he inferred that identical tr ademarks in legal terms made a difference to what 
"identical" meant in daily language. 
68. "Goods of the same class" meant goods that we re completely identical, or of the same 
category and class, or with the same name, that sh ared basically the same nature and function.  
"Goods of the same class" had a bigger extension th an "identical goods".  The practical judgement of 
"goods of the same class" was usually subject to  comprehensive assessment by the judge based upon 
the general knowledge of the public of certain pr oducts and the classification of goods by the 
international classification list of goods and services, with the trademark registration.  He clarified 
that the classification list was not the only benchm ark for judgement, but an important standard for 
reference.  To sum up, one of the important crite ria to tell whether two products were of the same 
class was whether they shared the same product na me, though they might have different practical 
functions.  However, those goods with different na mes could also be defined as goods of the same 
class as long as they bore the same practical function or scope. 
69. He reiterated that "identical trademark" was different from what "identical" meant in daily 
language.  China's standard for judgement was whether marks had no visual difference.  According to 
this understanding, this standard ge nerally conformed to the principle of being "not distinguished in 
essential aspects".  He recalled that, as he had alr eady stated, commercial import and export actions 
constituted a "sale" in real terms.  However, under these circumstances, a party involved could be 
criminally liable for smuggling or illegal operations. 
70. With respect to the criminalization of copy right piracy which was not for the purposes of 
profit, he said that although some infringing act s did not constitute acts of crime according to 
Articles 217 and 218 of the Criminal Law, that did not  mean that they were not criminal acts.  They 
could constitute the crime of inte ntional property damaging or the cr ime of construction impediment.  
China had noticed that some foreign countries, including the United States, the United Kingdom, and Japan, did not specify the aim of making profits as a subjective element for copyright crimes.  China 
was taking this factor into consideration and weighi ng up the possibility of integrating it into its legal 
system.  Regarding whether China had undertaken criminal, administrative or civil prosecutions IP/C/M/42 
Page 14  
 
against individuals or entities who used the Internet to obtain access to computer systems, he said that 
though the acts per se  did not constitute the copyright crimes defined by Articles 216 and 217 of the 
Criminal Law, their following acts usually did. 
71. In regard to the financial threshold for crim inal prosecution, he said that the financial 
threshold was a major element, but by no means the complete element in IP-related crimes.  The 
record of the administrative penalty for counterfe iting and piracy and serious consequences could all 
be regarded as factors in crime determination.  On the other hand , financial threshold was a generic 
term which might refer to sales volume, value of goods , illegal profits or damages to the right owner.   
It could also exist in various forms like money or commodities, as they could be transferred in money 
terms.  As to the so-called illegal business amounts, he said that on the one hand, the illegal business 
amounts could be determined using other eviden ce, such as written documents from the purchaser, 
witness, testimony, and assessment on goods.  On the other hand, in cases where the illegal business 
amount could not be verified, the constitution of crime could be determined through other factors. 
72. With respect to counting the value of infringing imports, he said that the Customs would 
follow the Customs Law, the Customs Regulation fo r Protection of Intellectual Property Rights and 
other administrative regulations.  The Customs c ooperated with traditional authorities, including 
public security, according to the Regulation on Tran sfer of Suspected Criminal Cases by the 
Administrative Agencies, and other laws or regulations. 
73. China was considering the revision of the Customs Regulation for the Protection of 
Intellectual Property Rights according to the TRIP S Agreement and to China's promises upon its 
accession to the WTO.  He also said that the cust oms had the administrative authority over the import 
or export of pirated goods over the Internet.  The customs and other IPR agencies would make a 
decision on  infringement according to the Customs Regulation for Protection of Intellectual Property 
Rights, the Patent Law, the Trademark Law, and the Copyright Law. 
74. Regarding the number of criminal cases of intellectual property rights infringement, he said 
that there had been 301 persons and 128 cases in 1998, 379 persons and 2 48 cases in 2000, and 702 
persons and 408 cases in 2002.  A total of 1,273 crimin al cases relating to intellectual property rights 
had been closed within the five years, and 2,104 persons had been sentenced.  At present, the Supreme 
People's Court was drafting the judicial interpretati on on the application of law in criminal cases of 
intellectual property rights' infringement, which would include the criteria for conviction and 
imposing penalties.  The interp retation would be adopted and published by the Supreme People's 
Court after strict examination. 
75. The cost of confiscation and disposal of counterfeiting goods undertaken by the Customs 
shall be borne by right holders.  According to Ar ticles 14 and 15, and other relevant provisions of the 
Regulation on the Customs Protection of Intellectual Property Rights, the applicant who requested the 
Customs to detain suspected infringing goods should pr ovide a bond to the Customs.  After a relevant 
administrative determination, judicial judgement or  adjudication came into effect, the Customs should 
refund the remainder of the bond, from which the cost of storage, custody, and disposal of the goods 
as well as the compensation fees to the interested parties for the loss induced by the inappropriate 
application had been deducted. 
76. The Chinese Government had always been e ngaged in fighting against "localism".  The 
State Council's Provisions on Prohibiting Regional  Blockage in Market Economic Activities, 
published on 21 April, 2001, showed the positive attit ude of China against localism in the field of 
intellectual property rights.  Chin a protected right holders in strict accordance with the laws and 
administrative regulations on the protection of inte llectual property rights which were in complete 
conformity with the WTO TRIPS Agreement.  Chin a was now making every effort to implement the 
obligations of the TRIPS Agreement.  IP/C/M/42 
 Page 15 
 
 
77. With respect to measures against piracy of soft ware, he said that the guiding ideology of the 
Activity Plan for Fighting against Pirated Software , which had been published in June 2003, was to 
resolutely crack down on various piracy and infringin g acts in respect of software and to promote the 
development of the Chinese software industry.  The working objective was to establish a fair and 
orderly software market and to realize the fundame ntal improvement in the social environment of 
software copyright protection.  The Activity Pl an was a provisional measure, while the crackdown on 
various piracy acts was a long-term and standing task.  At present, a crack-down on software piracy was included in this Plan in the light of the current situation of China, and it was possible for this Plan 
to include anti-piracy work in other respects later. 
78. Article 47 of the revised Copyright Law had added a provision on legal liability for 
infringing the right of communication through an information network.  The principles of illegal 
application were the same as the liabilities for vari ous infringing acts, whether on-line or off-line, 
including ISP liability.  Although the issue concer ning ISP liability was not within the framework of 
the TRIPS Agreement, China was making an active a nd serious study of the issue.  Other countries' 
relevant legislation, in particular that of the United States and the European Communities, had 
aroused general concerns in China. 
79. Regarding the regulations of the export of c ounterfeit and pirated goods, he said that in the 
year 2002, the Chinese customs had seized a total of 573 cases worth of RMB 95.62 million, including four worth RMB 230,000 and 569 cases worth RMB 95.39 million. 
80. Regarding the relationship between civil, crimin al and administrative enforcement, he said 
that theoretically an administrative punishment did not preclude the subsequent criminal enforcement 
for the same act.  According to the Provisions on the Removal of Suspected Crime Cases by 
Administrative Enforcement Agencies of 2001, which had been enacted by the State Council, cases of 
suspected crime of violating the Copyright Law should be removed to judicial authorities.  
Consequently, it was infrequent that a criminal enfo rcement came after an administrative punishment.   
81. He further said that, in 2003, the NCAC had la unched three special actions.  In February, the 
NCAC had launched the Special Action for Striking Piracy during the World Intellectual Property 
Leader's Meeting.  According to incomplete fi gures, the copyright administrative departments in 
Beijing, Shanghai, Tianjing, Chongqing, and the provinces of Liaoning, Jilin, Hainan, Guangdong, 
Fujian, Zhejiang, Anhui, Jiangxi, Jiangsu, Yunnan , Guizhou, Gansu, Shanxi and Inner Mongolia had 
checked 2,588 markets, 30 schools, and 77 enterpri ses, imposed administrative punishments on 1,430 
infringing or pirating entities, imposed a forfeit of RMB 1,339,500, suppressed 816 shops, removed 
five cases to judicial authorities, and investigated  one underground compact disc press.  In July, the 
NCAC combined with the General Administration fo r Press and Publication, Ministry of Education, 
and the National Anti-Piracy and the Pornogra phy Working Committee, had launched the 2003 
Autumn Special Action for Striking Pirated Textbooks  and Assistant Teaching Materials.  This action 
was still under way at present.  In August, the NCAC had launched the 2003 Special Action for 
Striking Pirated Software.  On the first day of this  action, 250,000 infringing copies of software alone 
had been confiscated in Beijing, Shanghai, and th e provinces of Sichuan and Guangdong.  The local 
agencies of the industrial and commercial administra tions would also step up the efforts to clamp 
down on trademark infringements.  Furthermore, he  said that local administrative authorities for 
industry and commerce conducted routine monitori ng and investigation to discourage counterfeit 
markets.  If any counterfeit goods were found in the market, they would strictly enforce the relevant 
laws and regulations.  He added that the relevant IPR agencies undertook enforcement actions every 
year at the Canton Trade Fair.   
82. The representative of Japan
 recalled that, at the first transitional review in 2002, his 
delegation had raised questions about five issu es, namely further improvement of enforcement 
including judicial procedures, patent examinati on procedures, protection of well-known trademarks, 
licensing regulations on patents and know-how, and the system requiring foreign patent applicants IP/C/M/42 
Page 16  
 
to use representative offices d esignated as those for foreign ap plicants.  He expressed his 
appreciation of the efforts by th e Chinese Government to improve the situation, for example by 
increasing the number of representative offices desi gnated as those for foreign applicants and 
amending the system pertaining to protection of well-known trademarks.  However, given the current situation and problems, su ch as the damage caused by counte rfeiting and piracy and delays 
in granting patents, he expected China to make further efforts.  In this regard, of particular 
importance were further improvements in enfor cement including the active implementation of 
criminal prosecution, amendments of the guidelines for criminal prosecution and elimination of 
delays in granting patents. 
83. With respect to the issue of further improveme nts of enforcement, he said that the Chinese 
Government's enforcement was inade quate in view of Part II of the Protocol and Articles 41 and 61.  
A recent Japanese survey had shown that the majority  of Japanese companies investing in China were 
still suffering damage from counterfeiting in China.   Improvement of enforcement was of greatest 
importance for the protection of intellectual property ri ghts in China.  He requested that enforcement 
be improved, in particular, in respect to the following  three aspects.  First, criminal procedures: in his 
view, criminal prosecution was the most effective way to deal with violators.  According to the 
survey, approximately 10% of th e Japanese companies that had been  harmed by counterfeiting had 
been subject to repeated violations of their righ ts since December 2002.  However, the conviction 
rate was extremely low.  Therefore, he hope d that China would actively pursue criminal 
prosecutions and apply stronger puni shments to boost the deterrent effect.  The present standard for 
prosecuting criminal cases included a threshold of a certain level of sale proceeds from counterfeit 
goods.  Changes to this standard would be needed.  Secondly, administrative procedures: he expressed 
his hope that China would take stronger administra tive measures, including imposing stiffer fines and 
increasing the number of seizures, to ensure an active and smooth administrative control of the 
problem.  Thirdly, localism: he appreciated China' s reply that it would make aggressive efforts to 
correct the localism.  He hoped to see the introduc tion and actual implementation of measures in this 
area.  Some Japanese companies th at had requested the seizure of  counterfeit goods indicated that 
they had come across cases of localism where aut horities had refused to seize goods because they had 
been produced by a major local company.  He called on the central government to strengthen the surveillance of local authorities in  order to eliminate localism. 
84. Regarding patent examination processes, he said that the average pendency of the 
examination of Japanese patent applications was 36.8 months and that measures had been taken, 
including an increase in the number of examiners.   Some Japanese companies had expressed their 
satisfaction at these measures to ameliorate delays  in granting patents.  However, as regards one 
patent application, examinati on had not yet begun after 65 months.  Some Japanese companies had 
reported that the problem of examination delays had not  yet been resolved, particularly in the area of 
advanced technology such as liquid-screen displays, PCs and IC cards.  As a result of such delays, 
licence agreements could not be concluded for inv estment in China and it was not possible to obtain 
compensation for damages caused by counterfeit goods .  In the light of Article 62.2 of the TRIPS 
Agreement and the need for improved transparency , he asked China to consider the following two 
matters:  first, enhancing transparency by regul arly disclosing data on the pendency of patent 
examination, thereby promoting mutual understandi ng between the countries concerned;  and second, 
accelerating patent examination. 
85. In regard to the protection of well-known tr ademarks, he welcomed the increased clarity 
resulting from the rules relating to the approval and pr otection of famous trademarks.  He hoped that 
the protection of foreign well-known trademarks wo uld be strengthened wit hout discrimination on the 
basis of nationality and that approval procedures w ould be simplified.  He also hoped that China 
would disclose information on the status of domes tic and foreign approvals following the enactment 
of the new ordinances that had been effective since June 2003.  IP/C/M/42 
 Page 17 
 
 
86. As to licensing regulations on patents and know-how, he expressed his appreciation of 
certain improvements in this area, both in regard  to the Export and Import Administrative Ordinance 
and the legal system.  However, he was concerned that the disparity between domestic contract law 
and the licensing regulations would raise issues rela ting to national treatment.  In addition, some 
Japanese companies had reported that there had been  cases where the information on the abolition of 
some laws and regulations at the time of Chin a's accession to the WTO had not been sufficiently 
transmitted to regional authorities.  Therefore, he wished that China would ensure proper enforcement 
by regional authorities of laws and regul ations reflecting the relevant revisions. 
87. The representative of Chinese Taipei  thanked the delegation of China for its comprehensive 
statement.  As regards Article 2.1 of the TRIPS Agreement, he recalled that a communication that 
China had provided in the context of the transiti onal review in 2002 (IP/C/W/382) read as follows:  
"In order to perfect the provisions on right of priority, the amended Trademark Law added new 
provision relating to right of priority and further stipulates right of priority for goods on an international exhibition".  He requested China to provide information on how China had ensured in 
the course of the past years that the provisions on the right of priority we re enforced.  Then he 
requested China to notify to the WTO in due course the "Regulations on the Recognition and 
Determination of Well-Known Trademarks", wh ich had been adopted in June 2003.   
88. The representative of the European Communities
 thanked China for its comprehensive 
statement.  He said that document IP/C/W /413 which his delegation had submitted was self-
explanatory.   He said that China's implementa tion of its commitment to abide by the TRIPS 
Agreement had resulted in significant changes in China's intellectual property protection.  Its 
legislative framework for the protection of inte llectual property was in line with international 
standards, in particular the TRIPS Agreement.  Over the past years, China had been progressively 
more sensitive as regards the need for reform and enforcement against counterfeiting and piracy.  The 
Chinese police and prosecutors were more willing to accept complaints from foreign right holders.  Despite these positive developments, he said that  the European Communitie s remained concerned 
about the high level of counterfeiting and piracy in China.  Therefore, the European Communities 
encouraged China to make additional efforts to  curb counterfeiting and piracy.  The European 
Communities was committed to worki ng with the Chinese Government to create a win-win situation.   
89. The European Communities welcomed the recen tly launched EC-China Structured Dialogue 
on Intellectual Property which had been signed at  the EC-China Summit between the EC Trade 
Commissioner Lamy and Vice Minister of China's Mi nistry of Commerce Wei Jianguo.  He expected 
this Dialogue to contribute to a better understanding of intellectual property systems in China and the 
European Communities.   It would also be c onvenient to address China's intellectual property 
enforcement challenge.  In conclusion, he said th at the European Communities was looking forward 
to increasing its cooperation with China at the b ilateral level, which would provide a convenient 
framework to further address the concerns raised in its submission.   
90. The representative of the United States
 said that China had taken substantial steps to reform 
its intellectual property law and enforcement proced ures.  Although he appreciated the hard work of 
Chinese intellectual property agencies, he did not be lieve that China's enforcement effort had yet 
adequately deterred the widespread counterfeiting and piracy in China.  Therefore, he urged China to 
take necessary measures to correct the situation on an urgent basis.  He also pledged to work 
cooperatively with China on a bilateral basis towards this end.  Finally, he appreciated the efforts 
China had made in providing the Council with the detailed replies to many of the questions posed by 
the United States.  He also appreciated that, given the time constraints, China might not have had an opportunity to prepare answers to all questions.  He would follow up with China to obtain responses to the other questions.  
91. The representative of Korea
 extended its appreciation to China for its detailed and 
comprehensive oral and written presentations as well  as the written responses to Members' questions.  IP/C/M/42 
Page 18  
 
He wished to know the efforts China had made re garding the establishment of a legal framework for 
intellectual property protection and  implementation of the TRIPS Agreement.  He believed that the 
Chinese Government, as a responsible Member, would continue its efforts and participate in the 
TRIPS Council's work in a constructive manner.  U nderlining the importance of enforcement, he said 
that enforcement could not pick up overnight.  Hi s delegation looked forward to China's further 
consistent efforts and progress in bri nging its legal texts into reality. 
92. The representative of Pakistan
 thanked China for its comprehensive presentation.  He 
commended China's performance in terms of the en actment of new rules and regulations, adequate 
review mechanism, enforcement, customs' protecti on and criminal prosecution.  His delegation looked 
forward to working with Ch ina on all of these matters. 
93. The representative of China  thanked Members for their positive comments on the efforts 
and achievements China had made in implementing its TRIPS commitments.  She said that China had 
implemented an administrative and judicial coordination mechanism with respect to intellectual property protection.  During recent years, China had been one of the nations that had attracted most 
foreign investment in the world, which had a cl ose connection with China's effective intellectual 
property protection.  She hoped that Members could be  relieved of their concerns relating to China's 
intellectual property protection, and further learn a bout China's law and enforcement.  She said that 
intellectual property right holders from all Members would be protected pursuant to China's law.  
Counterfeiting and infringement were subject to seri ous investigation and punishment in China.   
94. Turning to the preparation of the TRIPS Council's report to the General Council, the 
Chairman
 suggested that, given that the TRIPS Council would not have anothe r meeting before the 
General Council's next meeting scheduled for 15 and 16 December 2003, the TRIPS Council agree 
that that he, acting on his own responsibility, prepare a brief and factual report to the General Council.  
The content of the cover page to the report would be similar to that submitted by the TRIPS Council 
in 2002, and the part of the minutes of the meeti ng reflecting the discussions held under this agenda 
item would be attached.  
95. The Council took note  of the statements made and agreed  to proceed with the preparation of 
the report as suggested. 
D. REVIEW 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  
96. The Chairman  recalled that, prior to its meeting in June 2003, the Council had received three 
communications relating to the agenda items "Rev iew of the provisions of Article 27.3(b)",  
"Relationship between the TRIPS Agreement a nd the Convention on Biological Diversity" and 
"Protection of traditional knowledge and folklore ":  one from Switzerland (IP/C/W/400/Rev.1);  
another from India on behalf of Bolivia, Brazil, Cuba, Dominican Republic, Ecuador, Peru, Thailand 
and Venezuela (IP/C/W/403);  and a third from Morocco on behalf of the African Group 
(IP/C/W/404).  Given that the documents had been circ ulated just prior to that meeting, he offered 
Members an opportunity to make further comments on them as well as any other matters relating to the agenda items. 
97. The representative of Switzerland
 recalled that Switzerland had presented documents 
IP/C/W/284 and IP/C/W400/Rev.1, which addressed th e issues set out in paragraph 19 of the Doha 
Declaration.  It was of crucial importance to fi nd effective and expeditious  solutions to the issues 
regarding access to genetic resources and benefit-shari ng.  He recalled that his delegation had briefed  IP/C/M/42 
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the Council at its June meeting on the Swiss pr oposal to amend WIPO's Patent Cooperation Treaty 
(PCT) and the Patent Law Treaty (PLT), which had been submitted to WIPO in May 2003.  These 
amendments would explicitly allow national legi slatures to introduce an obligation for patent 
applicants to declare the source of genetic resour ces and traditional knowledge in  patent applications.  
He welcomed Members' positive reactions both in the WTO and WIPO and took due note of 
Members' concerns.  He said that Switzerland ha d requested WIPO, in close collaboration with the 
CBD, to further consider the establis hment of a list of government ag encies that would be competent 
to receive information regarding pate nt applications containing the declar ation of the source of origin.   
98. The benefits of the Swiss proposal were that, first, it would increase transparency regarding 
access to genetic resources and traditional knowledge a nd benefit-sharing.  Second, it would establish 
a sound and equal basis at the international le vel for Members wishing to introduce measures 
regarding the declaration of the source of genetic  resources and traditional knowledge in their national 
patent laws, while  leaving Members adequate flex ibility to develop an efficient national legislation 
according to their needs.  Third, it would enable th e contracting parties to the relevant international 
agreements, including the TRIPS Agreement, th e CBD and the FAO International Treaty on Plant 
Genetic Resources for Food and Agriculture (ITPGRF A), to fulfil their obligations under these 
agreements in a mutually supportive way.  It woul d also present a specific measure to implement the 
Bonn Guidelines on Access to Genetic Resources and Fair and Equitable Sharing of the Benefits 
Arising out of their Utilization (hereinafter "Bonn Guidelines").  Fourth, it would support the 
determination of prior art regard ing traditional knowledge through the simplification of the search of 
traditional knowledge databases and transparency measures.  Traditional knowledge databases were 
increasingly being established at local, national, and re gional levels.  The intern ational Internet portal 
for traditional knowledge proposed by Switzerland would present an additional and complementary 
measure.  The proposed transparency measures would also aid the determination of prior art with regard to traditional knowledge that only existed in oral form because the declared source could 
provide an important starting point for the further ex amination.  Fifth, the declaration of the source 
and other information provided to the competent government authority would allow the provider of 
genetic resources to verify whether the patent a pplicant fulfilled the requirements and procedures of 
the national system.  The declaration would also enable parties to finalize a contract on access to genetic resources and benefit-sharing and to verify  whether each of them complied with their own 
obligations under that cont ract and thus assisted in and simplified the enforcement of the obligations.   
99. He reiterated that Switzerland was convinced th at the way forward was to amend the PCT and 
PLT as these two agreements formed the legal foundati on to resolve these issues and were an avenue 
to ensure a coherent and expeditio us solution.  In his view, the TRIPS Agreement provided Members 
with adequate flexibility and allowed for the tr ansparency measures as proposed by Switzerland in 
WIPO.  In addition, he called upo n appropriate international forums  to provide, upon request, legal 
and technical cooperation and assistance in favour of developing and least-developed countries.  In 
conclusion, he said that Switzerland welcomed the WIPO General Assembly's decision in October 
2003 which mandated the Intergovernmental Co mmittee on Intellectual Property and Genetic 
Resources, Traditional Knowledge and Folklore (IGC) to continue its work.  It was the view of 
Switzerland that the IGC would play a key role in finding solutions to the relevant issues. 
100. The representative of Norway
 said that nothing in the TRIPS Agreement prevented Members 
from requiring the disclosure of genetic resources and therefore a provision could be inserted into the 
TRIPS Agreement that would either require or enable  Members to oblige patent applicants to provide 
such information.  Such a system would enha nce the support given by the TRIPS Agreement to 
certain provisions of the CBD, particularly the pr ovisions on equitable benefit-sharing and prior 
informed consent.  He noted that the interface between intellectual property rights and biological 
diversity was being discussed in a number of inte rnational forums, including the WTO and WIPO.  
He supported the general content of the Swiss proposal  tabled in the Working Group on Reform of the 
Patent Cooperation Treaty.  To illustrate the importa nce of the Swiss proposal, he said that, in 2002, 
70 per cent of patent applications in Norway had been applications under the PCT.  With a few IP/C/M/42 
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exceptions, all applications concerning biotechnolog ical inventions had been under the PCT.  The 
PCT explicitly prohibited any requirement which was different from or additional to the requirements 
provided for in the PCT or its Regulations.  Thus, the PCT constituted an important obstacle to the 
introduction of a system where an internationa l patent application covering biotechnological 
inventions should contain a reference to the so urce of origin.  He looked forward to further 
discussions in WIPO with a view to arriving at an agreement on how the PCT might be amended to 
deal with the CBD-related concerns.   
101. The representative of Brazil
 said that the joint communication in IP/C/W403, submitted by 
developing countries, highlighted the main arguments for introducing a provision into the TRIPS Agreement that would require patent applicants fo r inventions that had used biological resources to 
disclose the source of  those resources and associated traditional knowledge as well as to provide 
evidence on prior informed consent and fair and equitable benefit-sharing.  Recently documented 
cases of biopiracy involving the grant of intellectua l property rights that fr eely appropriated biological 
resources and associated traditional knowledge from biodiversity-rich countries were well-known.  
The recent case involving the Peruvian Amaca had further compounded such concerns.  He expected 
prompt and effective action on this issue in th e WTO in accordance with the mandate set forth in 
paragraph 19 of the Doha  Declaration.  He belie ved that introducing an amendment into the TRIPS 
Agreement to bring it in line with the provisions of  the CBD was an entirely feasible undertaking.  He 
indicated that the technical issues could and should be  identified and grappled with effectively.  There 
was no need for endless academic discussion in the TRIPS Council or other forums for Members to be 
able to pursue effective action in this regard.  He  further said that the joint submission had already 
addressed some of these technical issues.  He looke d forward to continuing to work with other WTO 
Members in ensuring that biopiracy would be properly dealt with.   
102. The representative of Bangladesh
 said that the review of Article 27.3(b) remained a priority 
for least-developed country Members.  Farming was the main livelihood for 75 per cent of the world's 
population living in rural areas.  Article 27.3(b) en sured that WTO Members had the right to select 
their own sui generis  systems for the protection of plant varieties, including a system that accorded 
due recognition to traditional knowledg e and traditional practices and the right of farmers to save, use, 
exchange and sell seeds and other propagating materi als, which was consistent with the ITPGRFA.  
Nothing in the TRIPS Agreement prevented Memb ers from taking measures to ensure food security 
and safeguard farmers' livelihoods.  However, the patent provisions of the TRIPS Agreement allowed 
countries to recognize monopoly rights over individual  genes and their characteristics, which negated 
farmers' rights over seeds and propagating material s with such genes and characteristics, reduced 
genetic diversity, made crops more vulnerable to pest attacks, and raised  the cost of seeds and 
agricultural inputs to unaffordable levels for small farmers.  He further said that although the TRIPS 
Agreement would not apply to least-developed countries until 2006, and 2016 for pharmaceutical 
products, the imposition of Article 27.3(b) was alr eady being threatened on least-developed countries 
through bilateral negotiations.   
103. He said that the review of Article 27.3(b) s hould result in an amendment clarifying that no 
living organisms, including plants, animals and parts of plants and animals, gene sequences, and 
biological and other natural processes for the produc tion of plants, animals and their parts, should be 
patentable.  In cases where they remained patent able, a provision should be incorporated into the 
TRIPS Agreement to the effect that patents must not be granted without the prior consent of the 
country of origin in order to affirm its  compatibility with the CBD and ITPGRFA. 
104. The representative of Korea  said that his delegation was still reviewing Members' 
submissions in the WTO and in other international forums.  Some of the submissions had made his 
delegation believe that the TRIPS Agreement might not  be the most appropriate vehicle to address the 
issue regarding the declaration of the source of ge netic resources and traditi onal knowledge in patent 
applications.  It was the view  of his delegation that there was no conflict between the TRIPS 
Agreement and the CBD.  The TRIPS Agreemen t was flexible enough to allow Members to  IP/C/M/42 
 Page 21 
 
 
implement the provisions of the CBD in their nationa l legislation.  If there was a need to establish 
international rules in this area, he believed that su fficient technical work had to be done beforehand.  
In this respect, he noted that WIPO, in particular  the IGC, was considering the various issues relating 
to genetic resources, traditional knowledge and folk lore.  The CBD was also working on these issues 
based on Article 8(j) of the CBD. 
105. The representative of Thailand  said that, although it was not party to the CBD and PLT, his 
delegation would follow the discussion on amendments of both treaties with keen interest.  He said 
that, as a starting point, Members could focus th eir attention on the meaning of "traditional 
knowledge", including the objective of the prot ection of traditional knowledge.  Regarding the 
relationship between the TRIPS Agreement and the CBD, he said that only those who were Members 
of the two treaties needed to implement them in a complementary manner.  It was the view of his 
delegation that developing countries still had diff iculty in implementing the two treaties in an 
effective way that corresponded to their social a nd economic development.  Therefore, the TRIPS 
Agreement should be amended to reflect the necessity  of disclosing the source of genetic resources, as 
had been highlighted in document IP/C/W/403. 
106. The representative of the European Communities  said that, as had been proposed by 
Switzerland, it was important to create a clearing house mechanism or an interface between the patent offices which would receive information on the s ource of genetic resources and the country from 
where genetic resources had originated, since without  such a mechanism the sy stem of disclosure of 
origin would not work and would not create the transparency that Members were looking for.   
107. Turning to the submission made by India on beha lf of certain developing countries, he said 
that he believed that it was a good basis for discussion on the issue of disclosure.  He recalled that, in 
September 2002, his delegation had expressed its readiness to discuss the issue of disclosure as a tool for making the TRIPS Agreement and the CBD more mu tually supportive.  He said that Members had 
to further discuss the disclosure system to ensure that it took into account certain realities and 
practicalities.  For example, it was sometimes tort uous and difficult to trace the source of genetic 
resources.  Also, a number of countries, especially the biodiversity-rich countries, did not have 
legislation on prior informed consent, access and be nefit sharing, which made it impossible for patent 
applicants who wanted to apply for patents based on the use of genetic resources, to present evidence 
that the requirements of the CBD had been respec ted.  He said that it was realistic for the EC's 
submission (IP/C/W/383) to limit, for the time-being, th e requests to patent applicants to the origin of 
genetic resources.  It might be interesting to furt her examine the Swiss proposals, especially in the 
context of the CBD, and to introduce some kind of  uniform certificates of origin, which could be 
useful when all Members disposed of legislation implementing the CBD. 
108. Regarding the African Group's submission, he sai d that it had drawn a distinction between the 
issues on which an agreement could be reached and on which agreement seemed impossible.  He said 
that it was difficult for his delegation to discuss the i ssue of the prohibition of  patenting of so-called 
life-forms, while a number of other issues could be usefully addressed.  He said that he remained 
prepared to continue the debate in the TR IPS Council based on the EC position contained in 
document IP/C/W/383 even with a view to inser ting an obligation in the TRIPS Agreement.  
Furthermore, he said that the TRIPS Agreement allowed Members to request the disclosure of origin as long as such a requirement did not act as a patentability criterion and as long as it had no effect on the patentability of inventions as such.  He sai d that the European Communities recognized the 
existence of sui generis systems for the protection of plant varieties, other than UPOV, and had 
acknowledged the leeway in the TRIPS Agreement for the recognition of farmers' rights to use, save 
and exchange seeds and for the protection of traditio nal knowledge.  He informed the Council that the 
European Commission would present a communication to the EC Council of Ministers the following week in which the European Communities would s uggest ways and means to implement the CBD's 
Bonn Guidelines within the European Communiti es and this communication would deal with 
intellectual property-related issues, such as the disclosure of origin. IP/C/M/42 
Page 22  
 
109. The representative of the United States
 said that robust patent protection for plants and 
animals had stimulated the growth of important new industries in the biotechnology sector.  This protection had provided clear benefits to society, particularly in the pharmaceutical and agricultural 
sectors, both in developed and devel oping countries.  For that reason, he continued to strongly support 
patent protection by WTO Members.  With regard  to the relationship between the TRIPS Agreement 
and the CBD, he said that the ag reements could be impl emented in a mutually supportive manner and 
that no conflict existed between them.  Although he supported the objectives of the CBD, he did not 
favour using the patent system as a means to seek  compliance with the CBD's provisions on prior-
informed consent and benefit-sharing.  It was th e view of the United States that national systems 
outside patent laws were the most effective wa y to achieve these objectives.  These regimes could 
have many components, including the use of perm its, contractual obligations, and civil and/or 
criminal penalties.  Patent laws were simply not  intended, nor were they appropriate, to regulate 
misconduct, as they provided exclusive rights for a li mited time in exchange for disclosures in order 
to further innovation.  Misconduct, such as misappr opriation of genetic resources, required direct 
regulations with enforcement by criminal or civil penalties. 
110. He recalled that his delegation had tabled a pa per on access to the genetic resources' regime of 
the US National Park Service (IP/C/W/393).  He said that this paper described the laws and 
regulations that governed access to resources in the US National Parks and the benefit-sharing 
requirements imposed by the National Park Service.  Any party that sought a permit to collect 
specimens or materials in the national parks, wh ere the results of research would be used for 
commercial purposes, should enter into an approved  benefit-sharing agreement with the National Park 
Service.  The scientific research and collecting perm it issued by the Park Service spelt out the terms 
and conditions under which the party would be pe rmitted to collect research specimens and the 
purpose to which such specimens might be put.  The benefit-sharing agreement identified the 
allocation of ownership in any inve ntions made and other rights and obligations of the parties.  Some 
contracts might provide for express damages in the ev ent of a breach of any of the provisions of the 
agreement.  He believed that similar systems, adap ted to the legal systems of other countries, would 
work well in promoting the sustainable use of genetic resources or traditional knowledge and in 
ensuring that the benefits resulting from any research  using these resources or knowledge were shared 
whether or not the results were patented. 
111. Finally, he noted that WIPO's General Asse mbly held in September 2003 had extended the 
mandate for the IGC.  The United States would conti nue to participate in the IGC in an active and 
constructive manner and to explore the intellectua l property aspects of genetic resources, traditional 
knowledge and folklore. 
112. The representative of Pakistan
 said that his country was a co-sponsor of document 
IP/C/W/356 and pointed out that discussions on th e relationship between the TRIPS Agreement and 
the CBD had been ongoing in the Coun cil for almost four years.  It was, therefore, strange to hear 
statements questioning the appropriateness of the TRI PS Council to handle this issue, especially since 
paragraph 19 of the Doha Declar ation had given the Council a mandate to address the issue.  He 
believed that, since the TRIPS Agreement was the mo st legally-binding agreement, an amendment to 
the TRIPS Agreement would ensure the ultimate eradi cation of biopiracy.  He added that it was time 
for Members to have technical discussions on this issue instead of "forum shopping".   
113. The representative of India  associated his delegation with the statement made by Brazil and 
believed that a provision in the TRIPS Agreemen t to provide for disclosure and prior-informed 
consent requirements was an entirely feasible undert aking.  He agreed w ith the representative of 
Pakistan that there was not much merit in an endless discussion on this issue and that Members 
needed to move the debate forward to a satisfact ory conclusion.  He noted that some Members who 
had shown interest in providing for a requirement  for disclosure and related matters in the TRIPS 
Agreement had referred to the need to sort out certain so-called t echnical points.  Therefore, he  IP/C/M/42 
 Page 23 
 
 
suggested that the Secretariat be requested to identify such techni cal points which could be discussed 
in detail in order to fulfil the mandate set out  in paragraph 19 of the Doha Declaration. 
114. The representative of Kenya  said that an amendment of the TRIPS Agreement should oblige 
Members to require patent applicants to disclose the source of biological materials or traditional 
knowledge, prior consent and equitabl e benefit-sharing.  As regards the proposal that the disclosure 
mechanism work at the national level, he said th at since there was evidence of violation at the 
international level, a mechanism at the national leve l would not solve the problem.  In other words, an 
international solution that committed all Member s through an amendment of the TRIPS Agreement 
was needed.   
115. The representative of Thailand  noted that certain principles contained in the African Group's 
paper and its annex were in line with the paper that Thailand had co-sponsored (IP/C/W/403).  He 
sought clarification from the African Group concer ning its view expressed in paragraph III.B of 
document IP/C/W/404.  He said that Article 27.3(b) could be interpreted in such a way that some 
items listed in the subparagraphs of the same Ar ticle could be excluded from patentability while 
protection could be provided for ot hers under other intellectual prope rty regimes as appropriate.  In 
any case, plant varieties could be protected either by patents or by a sui generis  system or by any 
combination thereof.  Regarding paragraph 2(f) of the Annex to the African Group's submission, 
which set forth the principle that no intellectua l property rights should be granted without due 
recognition of traditional knowledge involved in accord ance with this Decision, he said that it would 
be difficult to implement such a principle in practi cal terms if the parameters of traditional knowledge 
protection were not clearly defined.  
116. The representative of Canada  supported Pakistan's interventi on on the "forum shopping".  A 
significant amount of work had been done and progr ess made on all of these three issues in the WIPO.  
The IGC had received its renewed and strengthene d mandate, which instructed it to accelerate its 
work and to begin to address the international dimens ions of that work.  Therefore, the IGC was the 
most appropriate forum to further Members' unders tanding of intellectual property issues relating to 
access to genetic resources, traditional knowledge a nd folklore, including the issues of disclosure, 
prior informed consent and benefit-sharing. 
117. The representative of Australia  questioned whether some Members' concerns, such as those 
related to the implementation of the CBD obligatio ns, could largely be addressed by strengthening 
legal and administrative regimes outside the field of intellectual property.  She felt that more analysis 
needed to be undertaken to determine the most effect ive way of ensuring that access to materials, that 
were subsequently the subject of a patent appli cation, was sourced in compliance with the CBD.  
There was a need for improved documentation and information-sharing procedures in that respect. 
118. She said that, as a mega bio-diverse nation, Aust ralia's own experience in dealing with these 
issues indicated that there was no conflict between the TRIPS Agreement and the CBD.  Efforts needed to be concentrated on examining compa tible implementation of both conventions at the 
national level before taking the major step of am ending one of these conventions.  The work of the 
IGC could and should make a substantial contribution to the debate on these issues.  She expected that 
further comments would be made on the Swiss propo sal at the Working Group on Reform of the PCT 
later in the week at WIPO and that a further opportunity to continue discussions would be provided at the forthcoming meeting of the CBD Working Group on Access and Benefit Sharing in Montreal in 
December 2003 on the basis of a report provided by WIPO. 
119. The representative of China
 said that almost all Members seemed to believe that there was no 
conflict between the TRIPS Agreement and the CBD and that these two conventions could be 
implemented in a mutually supportive manner.  Ch ina shared this basic understanding and welcomed 
further discussions and proposals on this issue in th e TRIPS Council.  Referring to the interventions 
made by Switzerland and Norway, she said that  for the purpose of transparency, the TRIPS IP/C/M/42 
Page 24  
 
Agreement needed to be amended to at least allo w Members to introduce into their national laws the 
three principles of the CBD, namely prior-informed consent, benefit-sharing and sovereign rights over 
genetic resources.  China looked forward to coope ration with other Members in the WTO and other 
forums to find a constructive, feasible and satisfactory solution to these agenda items.  
120. Responding to Thailand, the representative of Kenya
 promised to provide clarification on  the 
issues at hand.  He indicated that the confusi on had arisen from the wording of Article 27.3(b) 
because, according to his delegation, there were  ambiguities about the scope of "plants".   
121. The Council took note  of the statements.   
G. REVIEW OF IMPLEMENTATION OF THE TRIPS  AGREEMENT UNDER ARTICLE 71.1 
122. The Chairman  recalled that a substantial number of suggestions for topics to be considered 
under the Article 71.1 review had been made prior to  the Doha Ministerial Conference, but some of 
them overlapped with other items on the Council's post-Doha agenda.  Sin ce Doha, some general 
observations had been made under this item, but no  suggestions for topics to be taken up had been 
tabled by any Members. 
123. 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 
124. The Chairman  recalled that Article 24.2 provided that  the Council would keep under review 
the application of the provisions of the geographical  indication section of the Agreement, and that the 
first such review would take place within two years of the entry into force of the WTO Agreement.  
At its meeting in June 2003, the Council had inv ited those Members that had not provided information 
in response to the Checklist of Questions contai ned in document IP/C/13 and addendum 1 to do so.  
The Secretariat had issued ai rgram WTO/AIR/2183 on 3 October 2003 to remind Members of the 
Council's invitation to provide this information.   Since the Council's meeting in June, further 
responses had been received from Uruguay, and circ ulated in addendum 28 to document IP/C/W/117.  
To date, the Council had received responses to the Checklist from 44 Members.  These responses, 
except for the more recent ones, had been summarized  in a Secretariat note contained in document 
IP/C/W/253.  At its meeting in June 2003, the Co uncil had requested the Secretariat to update this 
summary note to take into account the inform ation received from Members in response to the 
Checklist of Questions since its circulation in Ap ril 2001.  This update was in the process of being 
finalized.2 
125. The representative of th e European Communities  reiterated his view that the debate under this 
agenda item could be more structured, and recalled his earlier suggestion that the Secretariat or the 
Chairman, under his own responsibility, come up with specific proposals on how to further this 
discussion in a more focused way.  This item provided a perfect opportunity to discuss the way 
geographical indications functioned and how the relevant TRIPS provi sions had been implemented by 
individual Members.  Therefore, he encouraged the Chairman, under his own responsibility, to come 
up with specific suggestions on how to proceed on th is matter.  Furthermore, he recalled that, under 
this agenda item, his delegation had posed questions  regarding the legislation of specific individual 
Members.  Noting that these questions had not yet been answered, he said that he would very much 
appreciate receiving written responses to them. 
126. The representative of the United States  recalled that, in prior discussions under this agenda 
item, he had indicated that he believed that the Co uncil should follow a proposal that had been made 
                                                      
2 Subsequently circulated as document IP/C/W/253/Rev.1.  IP/C/M/42 
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earlier by Australia to walk through the provisi ons on geographical indications of the TRIPS 
Agreement paragraph by paragraph.  Had all Members provided responses to the Checklist of 
Questions on geographical indications, as the delega tions of Uruguay and 43 other Members had, the 
membership would certainly have a more complete picture of the variety of ways in which countries had implemented their obligations with respect to geographical indications.  This would make such a 
walkthrough much more meaningful.  He was part icularly interested to understand how countries 
ensured that GI protection was available for nationa ls of other Members to protect their geographical 
indications, since, as he had noted before in th e Council, he was aware that not all WTO Members 
currently did so. 
127. The representative of Australia
 thanked the Chairman for circulating the airgram reminding 
Members of the importance of providing answers to the Checklist and said that she was looking 
forward to the update to the summary note.  It w as vitally important that further examination was 
given to the manner in which countries provided GI protection and that the Council would examine 
practical examples of GI protection so that all Members could get a bette r sense of the various 
regimes that had been developed for the protecti on and recognition of geogr aphical indications.  A 
closer look at the details of domestic implementa tion of GI protection would provide not only the 
best, but also the necessary platform for ascerta ining the benefits of pr otection and perhaps the 
problems with it. 
128. In the past, her delegation had said that this re view should be structured in a logical way and 
proposed an examination that would provide scope for the provision of general comments, definitions 
and criteria for recognition, procedures for recognition,  eligible authorized users, the monitoring of 
protection against those not eligible or authorized to use a GI (or using one improperly), enforcement, 
and the relationship to trademarks.  Her delega tion would be happy to see a discussion structured 
along those lines, perhaps on the basis of a propo sal by the Chairman as the European Communities 
had suggested. 
129. She said that a number of Members appeared to  be struggling with the Checklist of Questions, 
and noted that responses had been received from only  44 Members.  In the context of the review, 
Members should perhaps have an opportunity to hi ghlight any difficulties or questions they were 
having in relation to filling out this questionnaire. 
130. Referring to the European Communities' remark s on unanswered questions – some of which 
remarks had been previously directed at Australia – she drew the Council's attention to the number of 
contributions that had been ma de by her delegation on this issue.  These included documents 
IP/C/W/205 and IP/C/W/117/Add.23, as well as  Australia's paper from earlier this year3 which was in 
fact the response to the questions that had been pos ed to Australia more recently.  Her delegation's 
view remained that its contribution had been c onsistent, comprehensive and entirely adequate. 
131. The representative of Canada  supported all three previous interventions.  As suggested by the 
European Communities, he believed th at it would be helpful to have a more structured discussion, and 
he would welcome a proposal by the Chairman and the Secretariat in this regard.  He believed that a 
review along the lines described by the Unites States and Australia would be particularly helpful. 
132. The Chairman  noted that it had been suggested that th e Secretariat and he work together with 
Members to consider how to carry forward the revi ew.  He indicated his intention to hold informal 
consultations on this matter prior to the Council's next meeting. 
133. The Council took note  of the statements made. 
                                                      
3 Document IP/C/W/392. IP/C/M/42 
Page 26  
 
I. D
ECISION ON THE IMPLEMENTATION OF PARAGRAPH 6 OF THE DOHA DECLARATION ON 
THE TRIPS  AGREEMENT AND PUBLIC HEALTH  
134. The Chairman  recalled that, at its meeting of 30  August 2003, the General Council had 
adopted the Decision on "Implementation of Para graph 6 of the Doha Declaration on the TRIPS 
Agreement and Public Health" (WT/L/540) (hereinaft er "Decision").  He said that its paragraph 11 
provided that the Decision, including the waivers gr anted in it, shall terminate for each Member on 
the date on which an amendment to the TRIPS Agreem ent replacing its provisions takes effect for that 
Member.  Furthermore, it instructed the TRIPS Council to initiate by the end of 2003 work on the 
preparation of such an amendment with a view to  its adoption within six months, on the understanding 
that the amendment would be based, where appropriate, on the Decision and on the further 
understanding that it would not be part of the nego tiations referred to in paragraph 45 of the Doha 
Ministerial Declaration.  He informed the C ouncil that the European Communities had submitted a 
communication (IP/C/W/416), which dealt with dom estic implementation of the Decision and its 
transposition into an amendment of the TRIPS Agreement. 
135. The Chairman indicated his intention to hold in formal consultations on the matter in various 
formats, in small groups as well as  in open-ended sessions, before the Council's next meeting.  The 
purpose of these consultations would be to give de legates an opportunity to exchange views on the 
amendment and see how the Council could make progress on this issue. 
136. The representative of the European Communities , in presenting document IP/C/W/416, said 
that all Members had the responsibility to ensure the effective operation of the system set out in the 
Decision.  The most immediate effort had to be made by those countries with manufacturing 
capacities in the pharmaceutical sector which were  prepared to participate in the system as 
manufacturers and exporters.  On the other hand, importing Members should examine what 
reasonable measures had to be taken within thei r means, proportionate to their administrative 
capacities and to the risk of trade diversion, to prevent re-exportation of the products that had been 
imported into their territories under the system.  He said  that in order to ensure the efficiency of the 
system, Members should refrain from overly restrictive interpretations of the Decision.  Likewise, any 
abuse of the system for reasons other than those st ated in the Decision would lead to an erosion of 
confidence among Members and affect the workability of the system.   
137. Referring to the EC communication of June 2003 (IP/C/W/402), he said that, given that 
technical assistance and capacity building were paramount in the implementation of the Doha 
Declaration, balanced, transparent and unbiased tec hnical assistance to integrate the Doha Declaration 
into intellectual property policies and practices w ould be the key for the European Communities as it 
must be for other technical assistance providers, in particular multilateral organizations.  The adoption 
of the Decision reinforced the case for appropriate technical assistance and the positions taken in the 
implementation of the Decision as well.  Therefore,  he proposed that the TRIPS Council instruct the 
Secretariat to ensure that the WTO-WIPO Join t Initiative on technical assistance in the area of 
intellectual property rights for the least-developed countries effectively addressed the public health 
dimension and closely involved the World Health Organization in this process.  
138. Turning to the amendment of the TRIPS Agreement, he said that the amendment should be an 
essentially technical process that must be initiated by  December 2003 and terminated by June 2004 at 
the latest.  He believed that textual changes would have to be made to the TRIPS Agreement itself in 
order to transpose faithfully what had been agreed to  in the Decision.  To this effect, he supported the 
Chairman's proposal for consultations. 
139. The representative of Kenya  supported the Chairman's proposal for consultations. 
140. The representative of Canada  supported the Chairman's proposal for consultations.  He said 
that, to make the system work, Members who wanted  to import medicines under the system needed to  IP/C/M/42 
 Page 27 
 
 
notify their intentions to do so and Members who had the capacity to export pharmaceuticals needed 
to change their domestic intellectual property rules to allow them to do so.   
141. He informed the Council that the Government  of Canada had announced in September 2003 
its intention to incorporate into the Canadian law the Decision and the Chairman's statement.  After 
intense work and consultation with Canada's bra nd-name and generic pharmaceutical industries as 
well as with the key non-governmental organizations  and public health advocates, Prime Minister 
Chretien had tabled the new legislation in the Canadian House of Commons on 6 November 2003.  
This new legislation proposed changes to two pieces of legislation:  the Patents Act and the Food and 
Drugs Act.  He said that the Government, when dr afting the legislation, had been intent on being 
faithful to the Decision.  On the basis of the WTO waiver, Canada would allo w eligible countries to 
import from Canada the pharmaceutical products they  needed to protect public health.  Canada had 
imposed no limitation on the countries eligible to use the system, other than the limitations some 
Members had agreed to impose on themselves.  More over, as part of its continued commitment to the 
poorest developing counties, Canada had also decided to extend the system to the LDCs who were not 
WTO Members.  As for the products covered by the dr aft legislation, he said that Canada had ensured 
that its approach was consistent with the spirit a nd purpose of the WTO waiver.  It had used, as a 
starting point, those drugs on the WHO list of essentia l medicines which were patented in Canada.  
This list constituted a pre-approved list to whic h more pharmaceutical pr oducts would be added 
through a simple and expeditious mechanism.  Consis tent with its international commitments, Canada 
would maintain the flexibility to issue compulsory  licences for all products which fell within the 
scope of the WTO waiver.  He said that parliamentar y debate, public consulta tions, and the drafting of 
implementing regulations in Canada  would continue, and there remained the possibility of further 
improvement on its efforts.  He said that this b ill would be reintroduced in  2004 and Canada planned 
to complete the work on a priority basis.   
142. He further informed the Council that the Canadian funding for HIV/AIDS initiatives in 
developing countries would increase to US$270 million over five years, plus US$50 million over five 
years towards the international AIDS vaccine programmes, and another US$100 million over four 
years to the Global Fund to fight HIV/AIDS, Tubercul osis and Malaria.  Cana da had also earmarked 
US$80 million for the Global Tuberculosis Drug F acility.  It also provided immunization and 
vitamin A capsules to vulnerable children in more  than 40 countries in Africa, Asia and Latin 
America.  It had funded a total of US$95 million to the Global Polio Eradication Initiative over the 
last five years.   
143. The representative of Norway  said that the amendment that the Council had been mandated to 
carry out would be a permanent solution with lega l security.  He supported the Chairman's proposal 
for informal consultations and said that the discu ssion should avoid the re -opening of substantive 
issues.  In addition, he informed the Council that the Norwegian Parliament had debated a draft bill, 
which would allow the Decision to be implem ented in the Norwegian legal system.   
144. The representative of Korea  said that the Decision was a constructive compromise 
representing a delicate balance that addressed the serious concern of developing countries while 
adhering to the fundamental principles and objectiv es of the TRIPS Agreement.  An amendment of 
the TRIPS Agreement to accommodate the Decision s hould be made in the same spirit.  It should be 
limited to the minimum necessary to provide a permanent legal basis for the working of the 
substantive elements of the Decision and shoul d not re-open the discussion on the substantive 
elements.  Members also needed to reflect on whet her it was necessary or possible to incorporate the 
whole Decision into the TRIPS text and on whether to reflect this text in Article 31(f) or (h) as such.  
He requested the Secretariat to prepare a tec hnical background note on amendment procedures and 
possible ways to reflect Members' commitments wit hout including them in the amendment.  Finally, 
he supported the Chairman's initiativ e to hold informal consultations. IP/C/M/42 
Page 28  
 
145. The representative of Thailand
 encouraged Members having similar concerns and interests to 
hold consultations with the view to putting forwar d a paper for consideration at the TRIPS Council's 
next meeting.  He was open to the discuss any optio n to be submitted by Members.  He hoped that 
transparency would be accorded in the process of consultations to be held by the Chairman. 
146. The representative of India  supported the Chairman's proposal for consultations.  He said that 
Members needed to work with deep commitment to provide for the solution given in the Decision, as 
this would help governments in undertaking necessar y legislative changes at the national level. 
147. The representative of Hungary  supported the Chairman's proposal for consultations.  She said 
that it was time for Members to think about how to start the process le ading to the necessary 
amendment of the TRIPS Agreement according to paragraph 11 of the Decision.   
148. The representative of the United States  said that his delegation welcomed the agreement 
Members had reached on 30 August 2003 to implem ent paragraph 6 of the Doha Declaration, 
including the Pérez Motta text and the Chairman's statement.  This agreement was tangible evidence 
of Members' ability to come together and achie ve meaningful progress on this issue of vital 
importance to all Members that had been a priori ty concern for the TRIPS Council over the last few 
years.  He further said that all that had been left for the TRIPS Council to do was to codify the 
agreement into a straightforward amendment of the TRIPS Agreement.  His delegation hoped that this 
technical exercise could be accomplished expeditious ly and without re-opening substantive aspects of 
the agreement.  He said that this agreement est ablished the right balance between addressing the 
concerns of countries most in need and ensuring th e protection of intellectual property that fostered 
the future development of life-saving drugs.   
149. He said that Canada's recently proposed legisl ation to implement the agreement showed that 
the system could be implemented into law even in advance of a final amendment of the TRIPS 
Agreement.  He said that the United States was fully committed to work with other Members to 
transfer the work that had been done into an am endment of the TRIPS Agreement.  This amendment 
would provide legal certainty to all Members rega rding the implementation and interpretation of the 
system over the long term.  He supported the Chairm an's proposal to conduct informal consultations 
on the form of the amendment with a view of fulfilling the mandate under  paragraph 11 of the 
Decision.  He thought that at this stage informal consultations might be a prudent first step before 
exploring other options, including the development of background papers by the Secretariat.   
150. The representative of Japan  supported the initiation of discussions on the mandate set out in 
the Decision and the Chairman's statement.   
151. The representative of China  welcomed the Decision which marked the first significant 
breakthrough of the Doha Development Agenda ( DDA).  He said that the solution would not only 
help address the public health crisis in Africa but also provide assistance to other developing 
Members in dealing with public health proble ms.  China was pleased to learn that domestic 
implementation procedures were being ca rried out in Canada and Norway.   
152. The representative of Australia  supported the Chairman's proposal for informal consultations.  
She indicated that informal consultations were a necessary first step before Members considered any 
further work.   
153. The representative of Chinese Taipei  supported the Chairman's proposal for informal 
consultations.  He also supported the proposal on the preparation of background papers.     
154. The representative of Switzerland  said that the adoption of the Decision had sent a positive 
signal to the world.  It was evidence that th e TRIPS Agreement was not a rigid international  IP/C/M/42 
 Page 29 
 
 
instrument focusing solely on the benefit of right  holders, but an agreement capable of reconciling 
intellectual property protection with other issues of pub lic interest, including public health policies.   
155. He said that the Decision and the Chairman's interpretative statement reflected the delicate 
balance of the different interests, positions and conc erns of the negotiators and stakeholders involved 
and was the best solution obtainable at that time.  He said that the technical implementation of the 
amendment must adhere to the text and substance of the solution Members had agreed to in August 
2003.  Any change, unless of formal nature, wo uld jeopardize the consensus and would render 
impossible the implementation within the mandated time frame.  In addition, he said that considering 
that the General Council Chairman's statement had been the key to eventually finding a consensus 
among Members, it seemed important to reflect th e statement in an adequate manner in the 
implementation of the Decision.   
156. He supported the Chairman's proposal for info rmal consultations and said that it was 
advisable to hold consultations before the submissi on of any technical papers.  He believed that the 
first TRIPS Council meeting in 2004 could adopt such an amendment fo r recommendation to the 
General Council.  He informed the Council that  Switzerland was currently examining whether 
changes in its national law were necessary to contribute to the goals, objectives and successful 
functioning of the solution agreed by Members.  Such work at national level could and would only be undertaken if it could be based on the Decision and if the substance of the Decision was not questioned again. 
157. Reacting to the points made by Members about technical cooperation in regard to the TRIPS 
Agreement and public health, the representative of the Secretariat
 said that the Secretariat had put 
forward to the Committee on Trade and Development a technical assistance and training plan for 2004 
(WT/COMTD/W/119/Rev.1) for consideration.  This plan envisaged seven regional activities in the 
area of the TRIPS Agreement in 2004 for Anglophone Africa;  Francophone Africa;  Arab and Middle 
East countries;  Asia and Asia Pacific;  the Cari bbean;  Central and Eastern Europe, Central Asia and 
the Caucasus; and Latin America respectively.  One of the topics that had been identified as being a 
likely subject for these regional events was the TR IPS Agreement and public health.  The Secretariat 
was open to any suggestions and reactions from countri es in these regions regarding their priorities.  
The Secretariat also attached importance to wo rking in cooperation with other international 
organizations and had already had some initial contacts with WIPO and the WHO.  In addition, he 
informed the Council that in order to carry forward the implementation of the Decision, the Secretariat had established a dedicated webpage on the WTO website on which notifications would be 
found once they were made.  To date, the Secr etariat had not received any notification.   
158. The Council took note
 of the statements.   
J. REVIEW UNDER PARAGRAPH 2 OF THE DECISION ON THE IMPLEMENTATION OF 
ARTICLE  66.2  OF THE TRIPS  AGREEMENT  
159. The Chairman  recalled that, at its meeting in February 2003, the Council had adopted a 
decision on the "Implementation of Article 66.2 of  the TRIPS Agreement".  Paragraph 1 of the 
Decision provided that developed country Member s would submit annually reports on actions taken 
or planned in pursuance of their commitments under Artic le 66.2.  To this end,  they must provide new 
detailed reports every third year and, in the interv ening years, provide updates to their most recent 
reports.  These reports were to be submitted prior to the last Council meeting scheduled for the year in 
question.  The Decision had been adopted on the basi s that the first set of new detailed annual reports 
to be presented under it be submitted by the end of 2003.  It had been noted that many Members had 
already submitted detailed reports in the Autumn of 2002, and that it was expected that those reports 
be updated and revised in light of the Decision. IP/C/M/42 
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160. Pursuant to this, at its meeting in June , the Council had requested developed country 
Members to submit reports on actions they had take n or planned in pursuance of their commitments 
under Article 66.2 by the end of October, in order to  allow their timely circulation and review at the 
present meeting.  On 22 August 2003, the Secretariat had issued airgram WTO/AIR/2156 to remind developed country Members of this request.  To date, the Council had received information from the 
following developed country Members:  Japan;  the Czech Republic;  Switzerland;  the United States;  
Norway;  the European Communities, and the followi ng individual member States:  France, Finland, 
Germany, Ireland, Spain and Sweden.  The resulting documentation was being circulated in document 
IP/C/W/412 and its addenda. 
161. As regards the purpose and conduct of the review of this information, the Chairman recalled 
that paragraph 2 of the Decision explained that the annual review meetings  would provide Members 
with an opportunity to pose questions in relation to the information submitted and request additional 
information; discuss the effectiveness of the incentives provided in promoting and encouraging 
technology transfer to least-devel oped country Members in order to enable them to create a sound and 
viable technological base;  and to consider any points relating to the operation of the reporting 
procedure established by the Decision. 
162. The representative of Bangladesh
 said that the reports submitted under Article 66.2 were 
critical to ensure the monitoring and the full implementation of develo ped country Members' 
obligations to provide incentives to enterprises and in stitutions in their territories to promote transfer 
of technology to least-developed country Members.   Despite the importance of these reports, only a 
few developed country Members had so far complied with their obligations.  While recognizing that 
there had been several notifications regarding the i ssue before the Council's Decision, she said that the 
establishment of a specific monitoring mechanism superseded any earlier practices and that all 
developed country Members were re quired to present their annual reports.  It was critical that reports 
be timely, appropriate and effective.  In that sen se, LDCs had demanded that reports be sufficiently 
detailed and specific so as to iden tify the incentives, the correlation be tween the particular reasoning 
of incentives and the obligations under Article 66.2, the enterprise or institution giving the incentives, 
the type and cost of technology transfer, the terms under which technology transfer existed, the LDCs 
to which the technology was transferred, the appr opriateness and local adaptability of the technology 
transferred and the beneficiary enterprise or institu tion in the LDC Member in question.  Moreover, 
reports should include informati on showing that the incentives reported were specific only to 
enterprises and institutions transferring technology to  LDC Members, and that they did not fall under 
the general rubric of overseas development assistance.   She regretted that so far the reports did not 
comply with these basic requirements. 
163. Introducing the EC report in document IP/C/W/ 412/Add.5, the representative of the European 
Communities  said that the document was an update of the detailed report which had been circulated in 
Autumn 2002.  The new document was, however, more comprehensive and aimed at responding 
specifically to the information requested in the Coun cil's Decision of 19 February 2003.  Compared to 
last year's document, the European Communities ha d added new headings, for example, the type of 
technology transfer, and statistics, where they were available. 
164. As had been confirmed at the previous da y's WIPO-WTO Joint Workshop on Intellectual 
Property Rights and Transfer of Technology, transfer  of technology was quite a general term and one 
which covered a variety of needs and operations.  A technological base comprised different elements, 
including scientific knowledge, physical objects, actual production and know -how.  Furthermore, 
there were different channels for transferring tec hnology.  The public sector had gained a certain 
amount of knowledge but the private sector remained  the main player in terms of transfer of 
technology.  In that context, the implementation of Article 66.2 and the help LDCs would receive 
towards a sound and viable technological base, would in  the long term oblige them to take action in 
different areas.  For example, advice and expertise were key elements which some LDC enterprises  IP/C/M/42 
 Page 31 
 
 
lacked, as well as the ability to identify suppliers of technology before entering into contractual 
relationships and, once the technology had been acqui red, the ability to adapt it to local contexts. 
165. These were just examples and the European  Communities had not felt it necessary to notify 
all of the capacity building programmes at the nati onal and regional levels, but  had merely identified 
certain general types of incentives that they thought  were relevant, i.e., six large groups which they 
considered were important and complementary in respect of development.  Firstly, these included 
incentives to promote projects among private ente rprises (e.g. direct-investment, licensing, 
franchising, sub-contracting, etc.), which were the main channels for transferring technology.  
Secondly, improving access to available informati on and technologies, given that often the access was 
possible but not easily attainable.  Thirdly, su pporting common research projects was an important 
part of the process.  Fourthly, providing training for people in terms of technology management to 
ensure that these technologies were incorporated  as effectively as possible in their productive 
capacity.  Fifthly, encouraging trade in technological goods and, lastly, in a more indirect way, certain capacity-building initiatives might also be relevant .  The detailed forms included in the European 
Communities' notification satisfied these objectives often with several of these objectives combined, 
because the transfer of technology was rarely an is olated activity.  These were also combinations of 
initiatives which meant that the conditions required we re as follows:  there had to be a demandeur of 
technology, a provider of technology, as well as technology that was really adapted to the local economy. 
166. The representative of the United States
 said that his delegation had again made a submission 
in compliance with the obligations under Article 66.2 (IP/C/W/412/Add.3).  He asked the 
representative of Bangladesh to explain what partic ular aspect of the US submission she had found 
not to be in compliance with the requirements.  If she was not in a position to outline those 
deficiencies at the meeting, he would be perfec tly happy to discuss any concerns she might have 
bilaterally.  His delegation had made a considerab le effort, as had other Members who had made 
submissions under Article 66.2, to ensure that th e submission fulfilled the obligations under this 
provision. 
167. The representative of Canada  said that his delegation took its Article 66.2 obligations 
seriously.  Noting that Canada's intellectual propert y team had been occupied for the last couple of 
months with the legislation to whic h he had referred earlier in the cour se of the meeting, he said that 
his delegation intended to submit its update as soon as possible. 
168. The representative of Australia  said that her country was in a similar position with both the 
updated report under Article 66.2 and its report on  technical assistance, both of which would be 
submitted as soon as possible. 
169. The representative of Djibouti  expressed his appreciation for what the representative of the 
European Communities had just said about Africa and LDCs and technical assistance as well as transfer of technology. 
170. The Chairman
 urged those developed country Members that had not yet provided reports to 
do so.  It was his intention to provide an opportuni ty, at the Council's next meeting, for Members to 
make further comments on the information submitted for this meeting that they might not yet had 
been able to study. 
171. The Council took note  of the statements made. IP/C/M/42 
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K. T
ECHNICAL COOPERATION AND CAPACITY -BUILDING  
(i) Annual Updates on Technical Cooperation Activities   
172. The Chairman  recalled that the Council had agreed at its  meeting in June to focus on technical 
cooperation at the present meeting.  In preparat ion for this annual revi ew, 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 had made avai lable technical cooperation were encouraged to 
share information on these activities if they so wi shed.  The Secretariat had issued on 22 August an 
airgram WTO/AIR/2156 reminding Members of this request.  In addition, intergovernmental 
organizations observers to the Council as well as th e WTO Secretariat had been invited to provide 
information. 
173. To date, the Council had received informa tion from the following developed country 
Members:  Japan;  the Czech Republic;  the Unite d States;  Norway;  Switzerland;  the European 
Communities and the following member States:  Austri a, Denmark, Finland, France, Germany, Italy, 
Spain, Sweden and the United Kingdom.  The r esulting documentation concerning the technical 
cooperation activities of developed country Member s was being circulated in document IP/C/W/408 
and addenda.  So far the Council had obta ined updated information from the following 
intergovernmental organizations:  the OECD, the IMF, the FAO and UPOV.  This information was 
being circulated in documents IP/C/W/407 a nd addenda.  Updated information on the WTO 
Secretariat's technical cooperation activities in  the TRIPS area was available in document 
IP/C/W/406. 
174. The Chairman urged those Members that had not  yet provided updated information to do so, 
and said that he intended to provide an opportunity, also at the Council's next meeting, for Members 
to make comments on the information submitted for th is meeting that they might not yet have been 
able to study. 
(ii) Joint Initiative   
175. The Chairman  recalled that the WIPO and WTO Secret ariats had launched on 14 June 2001 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. 
176. The representative of the Secretariat  said that the information on activities under the Joint 
Initiative over the last year had been summarized in paragraph 8 of document IP/C/W/406 entitled 
"WTO Secretariat Technical Cooperation in the TRIPS Area".  The WTO and WIPO Secretariats 
were planning to hold a joint national seminar in  Chad in December 2003.  Further joint national 
seminars were planned  in Uga nda and Ethiopia in December 2003, and in Djibouti and Niger in 
January 2004.  He noted that the Joint Initiative w as only one part of the WTO Secretariat's technical 
cooperation activities and recalled that he had already referred to certain other plans for the next year 
under agenda item I.  Finally, he informed the Council that the WIPO and WTO Secretariats had 
organized on the previous day a Joint Workshop on Intellectual Property Rights and Transfer of 
Technology. 
177. The representative of WIPO  said that she did not have anything to add to this information on 
the implementation of the Joint Initiative.  Alt hough not directly addressed to WIPO, she welcomed 
the EC suggestion, made under agenda item I, to ensure that the Joint Initiative effectively addressed 
the public health dimension and involved the World Health Organization.  She noted that the WIPO 
and WTO Secretariats were already working on next year's plan, and welcomed the WTO's 
cooperation in this regard.  She thanked delegations w ho had participated in the WIPO-WTO Joint  IP/C/M/42 
 Page 33 
 
 
Workshop on Intellectual Property and Transfer of T echnology.  Their contributions had helped to 
bring the issues at stake into a clearer focus. 
178. The representative of Djibouti  thanked those responsible for the cooperation between WIPO 
and WTO in this field and encouraged them to c ontinue this cooperation so that Members would be 
able to exchange ideas in a very productive manner.  In this contex t, he noted that the WIPO-WTO 
Joint Seminar had enriched all participants.  He  said that his delegation had written a letter of 
invitation to a seminar to be held in Djibouti in D ecember and that another letter had been sent to the 
WTO and WIPO Secretariats concer ning a regional seminar for French speaking countries to be held 
in the beginning or middle of next year.  He adde d that technical assistance was vital to ensure that 
LDCs and developing countries be able to gain  more knowledge about WTO rules and to better 
negotiate with other Members of the WTO and WIPO. 
179. The representative of Canada  thanked the WTO and WIPO Secretariats for their joint 
technical assistance activities, in particular their ne w efforts to try to incorporate TRIPS and public 
health issues into their training.  This was an important aspect of the international implementation of 
the WTO waiver of 30 August 2003. 
180. The Council took note  of the statements made. 
L. INFORMATION ON RELEVANT DEVELOPMENTS ELSEWHERE IN THE WTO 
Accessions  
181. The Chairman  recalled that the Ministerial Conference, at its Fifth Session on 11 September 
2003, had approved the accessions of Cambodia and Nepal to the WTO (WT/MIN(03)/18 and 
WT/MIN(03)/19).  They were the first two least -developed countries to jo in the WTO pursuant to 
Article XII of the WTO Agreement, i.e.  through the full WTO working party process.  The Protocols 
of Accession were now subject to the ratification of their respective Parliaments.  Thirty days after the Secretariat received an official notification of a ratification, the country concerned would become a Member of the WTO. 
 Dispute settlement  
182. The Chairman
 said that by means of a communication, dated 23 June 2003, the United States 
and the European Communities had notified a mutua lly satisfactory temporary arrangement in the 
dispute United States – Section 110(5) of the US Copyright Act (WT/DS160/23). 
183. At its meeting on 2 October 2003, the Disput e Settlement Body had agreed to establish a 
panel pursuant to requests by the United States and Australia concerning protection of trademarks and 
geographical indications for agricultural products  and foodstuffs (WT/DS174/20 and WT/DS290/18, 
respectively).  In accordance with Article 9.1 of the DSU concerning multiple complainants, the DSB 
had agreed to establish a single panel to examine th ese two complaints.  Argentina, Australia, Brazil, 
Canada, China, Colombia, Guatemala, India, Mexi co, New Zealand, Norway, Chinese Taipei, Turkey 
and the United States had reserved their third-party rights to participate in the Panel's proceedings. 
M. OBSERVER STATUS FOR INTERNATIONAL INTERGOVERNMENTAL ORGANIZATIONS  
184. The Chairman  said that the list of the 16 pending requests for observer status in the TRIPS 
Council by other intergovernmental organizations wa s contained in document IP/C/W/52/Rev.10.  He 
recalled that the Council had discussed these pending re quests at its previous meetings, but had not 
been able to reach consensus on any of them.  Given that there were no indications about any 
developments and that the situation remained the sam e, he suggested that the Council agree to revert 
to the matter at its next meeting. IP/C/M/42 
Page 34  
 
185. The Council so agreed
. 
N. ANNUAL REPORT TO THE GENERAL COUNCIL  
186. The Chairman  said that the draft Annual Report of the Council had been circulated in 
document JOB(03)/210.  This document was based  on the report the Council had submitted to the 
General Council on its work in the first part of th e year in document IP/C/W/27/Add.1 of 2 July 2003, 
which in turn had been presented as an update to  the Council's 2002 report (IP/C/27).  He proposed 
that the Council request the Secretariat to update  the draft to reflect the discussions at the present 
meeting.  This draft would be faxed to Member s, who would have five days to comment on the 
updated parts of the draft report once it had been circulat ed by the Secretariat, before it was sent to the 
General Council. 
187. The Council so agreed .4 
O. OTHER BUSINESS  
- Dates of the Council's meetings in 2004  
188. The Chairman  said that the Secretariat had tentatively pencilled in the following dates for 
meetings of the Council in 2004:  Monday to Wednesday, 8-10 March, Tuesday to Thursday, 15-17 
June, Tuesday to Thursday, 21-23 September, Tuesday to Thursday, 30 November to 2 December. 
189. The representative of Brazil  said that both his delegation and a number of other delegations 
had had problems in the past because the TRIPS Council and WIPO meetings had been scheduled to 
take place at the same ti me.  This had created difficulties particularly for developing countries, which 
generally tended to have smaller delegations.  He requested the WTO Secretariat to coordinate with 
WIPO when scheduling future meetings for the TRI PS Council, so as to ensure that meetings in the 
WTO and in WIPO were not scheduled to take place at the same time.  Looking at the dates that had 
been suggested by the Chairman, he said that he was concerned about having a TRIPS Council meeting on 21-23 of September 2003, because usually at that time of the year the WIPO Assemblies 
took place. 
190. The representative of Canada
 said that a conflict between the TRIPS Council and the WIPO 
Assemblies could pose a problem for some develope d countries as well.  He added that it would be 
very helpful for all of the Council's membership, if the Secretariat could look into this issue. 
191. The Chairman  clarified that these were just tentativ e dates for next year's Council meetings, 
but in light of what had been said he believed that  the Secretariat should double check the dates so as 
to make sure they would not clash, where possible, with WIPO meetings.  If any changes were required, the Secretariat could circulate a note to all Members informing them of any changes.  
However, for the time being, Members should take  note of the dates he had just indicated. 
192. The representative of the Secretariat
 said that the Secretariat habitually tried to organize the 
September TRIPS Council meeting back-to-back with  the WIPO Assemblies in order to facilitate 
broader participation in the TRIPS Council of ca pital-based delegates from intellectual property 
offices, especially from developing countries, who might attend the Assemblies' meeting.  He said 
that the Secretariat would coordinate with the WI PO Secretariat to double check the dates and also 
check the dates of the other meetings to see whethe r they would give rise to any significant clashes. 
                                                      
4 The Annual Report (2003) of the Council for TRIPS was subsequently circulated in document 
IP/C/30.  IP/C/M/42 
 Page 35 
 
 
193. The Council took note  of this information and of the statements made. 
__________  