The Chair of the TRIPS Council, Ambassador Pimchanok Pitfield of Thailand, said that since the last TRIPS Council meeting in March, she had met with members in various configurations to try and find common ground on the TRIPS Decision extension. The Chair recognized that no significant progress was made as some domestic consultations were ongoing but stressed her intention to keep working to bridge the existing differences.
Under paragraph 8 of the Ministerial Decision on the TRIPS Agreement, adopted on June 17, 2022 at the WTO’s 12th Ministerial Conference (MC12), members agreed to make a decision within six months on whether to extend the Decision to cover the production and supply of COVID-19 diagnostics and therapeutics.
At a formal TRIPS Council meeting in December 2022, members recommended to the General Council to extend the deadline for such a decision. The General Council accepted this recommendation in December 2022 and resolved in March 2023 to keep the issue open for discussion while substantive discussions would continue in the TRIPS Council.
Members reiterated their well know-positions and recognized the importance of continuing to have a substantive debate on this issue while some members continue with their domestic consultations.
In this context, it was agreed to hold an informal thematic session for external stakeholder input in order to gather facts and take stock of relevant COVID-19-related developments with the participation of international organizations, civil society, business representatives and academia. The event will take place in late September or early October.
Some members noted the need to have a broader exchange on IP-related experiences beyond the focus of paragraph 8, taking up paragraph 24 of the Ministerial Declaration on the Response to the COVID-19 Pandemic and Preparedness for Future Pandemics, which mandates members to analyse lessons learned from and challenges experienced during the COVID-19 pandemic.
Members expressed their preference for a balanced composition of participating stakeholders from diverse geographical and organizational backgrounds. External stakeholder participation will be limited to the thematic session and negotiations and substantive deliberations will remain reserved exclusively for members, Ambassador Pitfield explained.
E-commerce Work Programme
Members also discussed a communication (IP/C/W/698) by South Africa on “Intellectual Property and the 1998 Work Programme on Electronic Commerce (WPEC)”. The document emphasizes that the Work Programme (WT/L/274) mandates the TRIPS Council to examine and report on e-commerce-related IP issues. These issues include protection and enforcement of copyright and related rights; protection and enforcement of trademarks; and new technologies and access to technology.
South Africa proposed to intensify discussions in order to reinvigorate the 1998 Work Programme in line with the General Council Decision of December 2019 (WT/L/1099) as well as the WTO Ministerial Decision (WT/L/1143) on the WPEC reached at MC12 in June 2022. Since it is a ministerial mandate, South Africa noted the TRIPS Council should include this item again as a standing item on the agenda, facilitating a deeper discussion.
In South Africa’s view, the relationship between IP and development and the various Sustainable Development Goals (SDGs) needs to be mainstreamed into the discussion of the Council. In order to meet the SDGs, new technology needs to be harnessed and accessed by developing and least developed country (LDC) members, supported by an effective framework for technology transfer.
IP and innovation
Australia, the European Union, Hong Kong China, Japan, Singapore, Switzerland, Chinese Taipei, the United Kingdom and the United States co-sponsored a communication on “Intellectual property and innovation: Research collaboration across borders”. Document IP/C/W/699 follows up on past items on IP and innovation regularly added to the TRIPS Council agenda since 2012.
The document highlights that scientific research benefits from international co-operation, as it can enhance the quality of science, avoid unnecessary duplication, provide economies of scale and address issues that can only be solved by working together.
Co-sponsors noted that in 2010, the share of patents with a foreign co-inventor doubled over the prior three decades, from 10 % to 20 %. The share of scientific publications with an international co-author tripled during that same time period, from around 7 % to 22 %.
Furthermore, the document emphasizes that the digital age, access to new technologies, and the greater mobility of information, ideas, researchers and scientists is facilitating international collaboration, with intellectual property rights providing a core framework for such interaction.
Members highlighted examples of why an entity or team of researchers may wish to collaborate, including efficiency, similarity in the area of technology and cost considerations. They also shared views on how dividing up efforts can be more efficient when tackling similar areas of technology, and on how small- and medium-sized enterprises (SMEs) can aim to undertake projects that might otherwise be considered unfeasible, both financially and in terms of development risks.
Non-violation and situation complaints
Members once more addressed the longstanding issue of the examination of scope and modalities for non-violation and situation complaints (NVSCs) under the TRIPS Agreement. Ministers adopted at MC12 a Decision on TRIPS non-violation complaints, directing the Council for TRIPS to continue its examination of this issue and to make recommendations to the 13th Ministerial Conference, scheduled for February 2024. It was also agreed that, in the meantime, members would not initiate such complaints under the TRIPS Agreement.
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 on her consultations on this matter to explore delegations’ appetite to return to substantive discussions on this issue, providing a factual overview of members’ views on the operation of NVSCs based on existing materials and meeting records. Noting that most delegations were cautiously receptive to this idea, the Chair suggested members keep this possibility open as a first step to return to substantive discussions. She invited delegations to submit ideas in this regard and committed to engage with delegations to find a way forward.
The Chair reported on her consultations with members regarding the review of the implementation of the TRIPS Agreement under Article 71.1. This provision requires the Council to conduct an implementation review once every two years but, as the initial review in 1999 has not been completed, no other review has subsequently been initiated.
Stressing that this review is not intended to re-open the substance of the TRIPS Agreement, the Chair suggested members take inspiration from the review practices in other WTO bodies by agreeing on a few well-defined areas or themes and sharing their domestic experiences in dedicated thematic sessions over a period of two years. After this, the Council could circulate a factual report, she said.
Delegations were open to considering this approach, although some noted the need to avoid linkages to other issues and cautioned not to begin ambitious or controversial discussions that may complicate debates on existing agenda items. The Chair will hold consultations with a view to starting a new review cycle in 2024.
The Council also agreed on the arrangements for its 21st review under its Decision on the Implementation of Article 66.2 of the TRIPS Agreement, which mandates developed countries to provide incentives for technology transfer to LDCs. The Chair informed delegations of the Secretariat’s intention to organise the 17th Workshop on Technology Transfer back-to-back with the Council’s meeting in early 2024.
Under the agenda item on technical cooperation and capacity-building, the Council agreed to hold the annual review of technical cooperation during its October meeting. The Secretariat presented a compilation of technical assistance programmes reported by members and announced a virtual workshop on TRIPS Article 67 on technical cooperation will be held on October 11-12, 2023.
The Chair said that Namibia deposited, on April 4, 2023, its instrument of acceptance for the protocol amending the TRIPS Agreement. This means that, to date, 137 members have accepted the TRIPS amendment. Recalling that the current period for depositing the instrument of acceptance runs until December 31, 2023, the chair encouraged the 27 remaining members to complete their domestic procedures and deposit their instrument of acceptance as soon as possible.
The next formal meeting of the TRIPS Council is scheduled for October 9-10, 2023.