INTELLECTUAL PROPERTY: FORMAL MEETING

Note

THIS NEWS STORY is designed to help the public understand developments in the WTO. While every effort has been made to ensure the contents are accurate, it does not prejudice member governments’ positions.

The official record is in the meeting’s minutes.

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New chair

The Council elected Ms Irene Young, permanent representative of Hong Kong, China, as its new chairperson for the coming year.

In her closing remarks, she set the tone for the Council's work to come : "There is no room for complacency. Between now and our next formal meeting in October, we will have to be constructively engaged in intensive consultations and preparatory work. At the beginning of this meeting, I invited you to be my partner in a joint project to tackle issues that have been outstanding for a long time. I look forward to working closely with all of you to see if we can make some progress, remove some obstacles and build a more solid and healthy foundation for our future work."

Intellectual property and innovation: inclusive innovation and MSME growth

As part of a series of ad hoc items on IP and innovation that have been added to the Council's agenda since late 2012, some members had proposed a cycle of themes on MSMEs at the previous meeting of the Council in March. This time, the co-sponsors (Australia, Canada, the European Union, Japan, Singapore, Switzerland, Chinese Taipei and the United States) asked members to exchange experiences and examples of successful measures promoting inclusive innovation and MSME growth — in particular, how IP frameworks and innovation policy or programmes have assisted MSMEs to successfully grow, create economic growth and employment, and foster participation in the global trading system and value chains. See here.  

They reported that businesses using IPRs in innovative and creative industries tend to perform better than businesses not using them. MSMEs owning IPRs often have higher revenue per employee than MSMEs that do not — yet, even in developed countries only a small portion of MSMEs make use of IP, compared with larger companies. In this regard, a variety of different strategies and support measures have been put in place by members to assist MSMEs in the use of the IP system. These include: IP awareness schemes and personalised assistance for MSMEs or providing cooperation (licensing) platforms; developing IP mediation and arbitration networks for MSMEs; and improving coordination of IP support and research and innovation funding schemes.  

One delegation said that evidence did not support the assumption that strong IPRs foster innovation and noted that innovation needed to be driven by public interest. The point was also made that IPRs were only one among many factors that contributed to innovation.

Intellectual property and the public interest: compulsory licensing

Following a proposal by Brazil, China, Fiji, India and South Africa, the Council debated how to strike an appropriate balance between the interests of rights holders and users, between the need to protect IPRs to provide incentives for research and development (R&D) on the one hand and, on the other hand, to address concerns about the potential impact of such protection, in particular in the health sector, including its effect on prices.

Co-sponsors said there was growing concern about an imbalance between intellectual property and the public interest. They cited health technologies as an example, where patents and related rights in test data, without sufficient use of balancing exceptions and limitations to protect the public interest, allowed companies to maintain high prices and exacerbate crises of access around the world, with many patients unable to afford medicines, and forced governments with constrained health budgets to ration care.

They therefore invited members to exchange views and experiences on measures within the IP system to promote the public interest, including but not limited to compulsory licensing, patentability criteria, IP and competition, and the regulatory review exception.

At this meeting, delegations shared their experiences on the use of compulsory licences for accessing health technologies. They concurred in that the public interest was an important topic.  The point was made that a balanced IP regime as enshrined in TRIPS and confirmed by the Doha Declaration on the TRIPS Agreement and Public Health served the public interest. Some members emphasized that IPR protection incentivized innovation and thus furthered the public interest; they cautioned against a debate that was narrowly focused on IPRs.

E-commerce

Issues related to the Work Programme on Electronic Commerce were addressed under "other business". Singapore, on behalf of the Association of Southeast Asian Nations (ASEAN), introduced a recent communication on "ASEAN Reflections on Lunch Panel on 'Can E-commerce Trade Rules Help MSMEs from Developing Countries?' held during the United Nations Conference on Trade and Development (UNCTAD) E-commerce Week, 27 April 2017."

The chair noted that the Council had constructively discussed issues related to IP and e-commerce at its recent meetings, where a series of issues were identified that would clearly merit further consideration as part of a continued exchange of views and experiences.

At the 10th Ministerial Conference in Nairobi, ministers had requested the General Council "to hold periodic reviews in its sessions of 2016 and July 2017 based on the reports that may be submitted by the WTO bodies entrusted with the implementation of the Work Programme". The chair informed delegations of her intention to submit a purely factual record of the work on e-commerce issues in the TRIPS Council to the General Council so that it can be taken into account at its stocktaking session in July.

 

Amendment to the TRIPS Agreement

The Council took note of three instruments of acceptance of the Protocol Amending the TRIPS Agreement which were deposited with the WTO Director-General since its last meeting in March: Sierra Leone on 21 March, Fiji on 5 May, and Saint Vincent and the Grenadines on 9 May. In total, the amended TRIPS Agreement, which entered into force on 23 January 2017, applies now to 116 members.

The remaining 48 members are still operating under the 2003 waiver Decision and are expected to submit their instruments of acceptance in due course. The chair encouraged members concerned to do so by the end of this year when the current deadline for the acceptance of the Protocol expires. Delegations were encouraged to prepare for a substantive debate on how this new procurement tool could be effectively used in practice to respond to public health needs at the Council's meeting in October.

More information can be found here.

“Triplets”

In discussions regarding biodiversity, traditional knowledge and patenting of life forms - the "triplets" issues — no progress could be made. Members reiterated longstanding positions with respect to substantive issues, such as the suggested inclusion of a mandatory disclosure requirement in TRIPS and the patentability of life forms, and two pending procedural proposals — whether the Secretariat of the Convention on Biological Diversity (CBD) should be invited to debrief the Council on the Nagoya Protocol, and whether the WTO Secretariat should update the three factual notes.

 

Non-violation and situation complaints

On the issue of "non-violation and situations complaints" - on whether a member can bring cases against another member if it considers that the other member's action or a specific situation has deprived it of an expected benefit, even if no obligation has been violated — the TRIPS Council was asked to examine scope and modalities for such complaints and make recommendations to the 11th Ministerial Conference in December in Buenos Aires. This mirrors the initial mandate in Article 64.2 of the TRIPS Agreement.

Exchanges on this topic focused on whether such complaints should apply to the TRIPS Agreement, whether there is a need to establish scope and modalities at all, and whose task it would be to propose possible elements for such scope and modalities. The chair called on members to come up with concrete proposals that would permit the Council to move beyond positions of principle and recommend a permanent solution to ministers.

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