The Chair of the TRIPS Council, Ambassador Pimchanok Pitfield of Thailand, stated that as substantive discussions on paragraph 8 of the Ministerial Decision on the TRIPS Agreement have continued, the Council has continued to collect substantive inputs for these exchanges. She expressed the hope that the Council's Thematic Session for External Stakeholder Input and the USITC report would allow delegations to engage more concretely, with a view to finding agreement ahead of the WTO's 13th Ministerial Conference to take place in Abu Dhabi next February.

At the informal Thematic Session organized by the Council on 28 September, more than 20 speakers from intergovernmental organizations, civil society, business representatives and academia shared facts, evidence and experience relevant to the manufacture and supply of COVID-19 vaccines, diagnostics and therapeutics. On 19 October, members were also briefed by the USITC on its report titled “COVID-19 Diagnostics and Therapeutics: Supply, Demand, and TRIPS Agreement Flexibilities”. The report provides information on market dynamics of COVID-19 diagnostics and therapeutics.

Members welcomed the information shared at these sessions and acknowledged their contribution to the Council's facts- and evidence-based discussions. While some members said that the USITC report confirmed that access to therapeutics and diagnostics went beyond the scope of intellectual property and that broader factors should be considered when making a decision, others argued that the report confirmed the insufficiency of voluntary licensing in responding to the pandemic. Others said they were still reviewing the content of the USITC report.

Many developing members urged the Council to arrive at a decision before the General Council meeting scheduled for December 2023. One member argued that sufficient evidence had now been provided to enable the Council to arrive at a decision. Other members reiterated their support for a consensus-based outcome.

The Council agreed to suspend this agenda item, with a view to resuming when members would be ready to make a decision under this item.

Technology transfer

The Council discussed submissions from the African Group and India focused on reinvigorating discussions on the relationship between trade and technology transfer. Two complementary submissions shared by the African Group aimed to explore how flexibilities within the TRIPS Agreement can support the promotion and dissemination of technology in the pharmaceutical and industrial sectors.

Members welcomed the African Group submissions and indicated their willingness to discuss the proposal. While members agreed that technology transfer was an important issue, some members highlighted that sharing experiences and examining partnerships would help developing members to better absorb technology. 

India's submission focused on reinvigorating discussions on the relationship between trade and the transfer of environmentally sound technologies to developing countries to address climate change. A number of members welcomed the Indian paper as timely and said the issues identified should be examined from the perspective of IP rights. One developed member linked least developed countries' (LDCs) interests in environmentally sound technologies to Article 66.2 of the TRIPS Agreement and encouraged LDCs to engage in dialogue to determine how these interests can be reflected.

In the 21st review of the implementation of Article 66.2 of the TRIPS Agreement, developed member countries provided updates to their annual reports on incentives promoting the transfer of technology to LDCs. The Chair informed members of the Secretariat's plans to once again hold an Article 66.2 Workshop in early 2024.

IP and innovation

The Council also discussed a paper titled Incubators and Accelerators' Support of Start-ups Operating in a Cross-border Environment, co-sponsored by Canada; the European Union; Hong Kong, China; Japan; Singapore; Switzerland; Chinese Taipei; the United Kingdom; and the United States.

Introduced by Switzerland, the paper explores how incubators and accelerators can support the development of start-ups in regard to IP and help them to integrate into the cross-border economic marketplace. Start-ups were recognized as an important player in promoting innovation and economic growth and as contributing nearly 50 per cent of new jobs created.

Several members shared information on existing programmes and supporting IP-related infrastructure available to start-ups, both locally and internationally. A representative of the World Intellectual Property Organization (WIPO) also shared information about the activities undertaken by the organization to support start-ups globally. More information can be found here. 

Non-violation and situation complaints

Members revisited a longstanding issue of the examination of scope and modalities for non-violation and situation complaints (NVSCs) under the TRIPS Agreement. In a Decision on TRIPS non-violation complaints, adopted by ministers at MC12, the TRIPS Council was tasked with examining this issue and proposing recommendations to the 13th Ministerial Conference (MC13) scheduled for February 2024. Since members were unable to agree on a recommendation to put forward at MC13, the Chair recommended compiling members' statements and drafting a factual report to refresh members' understanding of the issue. 

Non-violation and situation complaints refer to whether and under what conditions members should be able to bring WTO dispute complaints where they consider that another member's action, or a particular situation, has deprived them of an expected advantage under a WTO agreement, even though no obligation under the agreement has been violated.

Historically, members have differed on whether such non-violation cases are feasible in the area of TRIPS, and the divergent views were reiterated. Some delegations consider NVSCs essential to maintaining the balance of rights and obligations within the TRIPS Agreement while helping to ensure that legitimate obligations are not circumvented or avoided. Others believe there is no place for the application of NVSCs in IP because of the legal insecurity and curtailment of flexibilities that could ensue and favour their complete ban in the TRIPS area.

The Chair reported that during her consultations no substantive progress was made in terms of the scope and modalities for NVSCs under TRIPS. At the meeting, several developed members expressed interest in continuing deliberations on NVSCs, whereas developing country members were desirous of extending the moratorium until the 14th Ministerial Conference. The Council agreed to suspend this agenda item, with a view to resuming when members would be ready to agree on a recommendation.

Other issues

Under Article 71.1, the Council is required to conduct a review of the implementation of the TRIPS Agreement every two years. While no review had been held since 1999, the Chair said that, from her consultations, members seemed interested in restarting the review function in more concrete terms and were willing to consider possible areas of focus in a first two-year cycle.

The Chair suggested the review could adopt a similar format as the recently held Thematic Session, and have members exchange on their experience implementing specific parts of the TRIPS Agreement. In her view, the review was not intended to re-open the substance of the TRIPS Agreement, but rather to establish a long-term process to share experiences on how the different parts of the Agreement had been implemented domestically or regionally.

Under the Council's agenda item on technical cooperation and capacity building, several developed member countries, the Secretariat and other intergovernmental organizations introduced reports on their respective technical cooperation activities.

The Secretariat also announced the first  Workshop on Article 67: Technical Cooperation of the TRIPS Agreement for government officials on 1-2 November 2023. This workshop seeks to enhance dialogue between beneficiaries, reporting members and international organizations. The aim of this workshop is to update officials on current trends in IP-related technical cooperation. The Chair urged members to take advantage of this opportunity to share experiences.

To date, the number of members accepting the protocol amending the TRIPS Agreement stands at 137, with 27 members yet to deposit their instrument of acceptance. The Council will recommend extending the deadline for acceptance of the protocol until 31 December 2025.

Next meeting

The next formal meeting of the TRIPS Council is scheduled for 25-26 April 2024.