TRIPS
Council Launches New Notification System, Discusses Incentives for Technology
Transfer
The WTO Secretariat announced the launch
of a new TRIPS notification submission system, an optional online tool for members
to submit notifications, review materials and reports. The announcement was made at the meeting of the Council for Trade-Related Aspects
of Intellectual Property Rights (TRIPS) on 13 February, where members also discussed
incentives for the transfer of technology to respond to the needs identified by
least-developed countries (LDCs).
The e-TRIPS Notification Submission System (NSS) is part of
the broader e-TRIPS project, which aims at streamlining and bringing up to date
the information services the Secretariat provides to members. The project comprises
two other elements: a complete Information Management System, now the backbone of
the TRIPS information services, and the e-TRIPS gateway, which will be integrated
into the WTO website and provide a wide range of opportunities for delegates to
access and make use of TRIPS-related information.
Through the e-TRIPS NSS, members will be able to submit newly
passed laws and regulations relevant to TRIPS, responses to the questionnaires established
by the TRIPS Council, and regular reports on technical assistance and measures for
technology transfer filed by some members and some international intergovernmental
organizations. Traditional methods of notifying to the TRIPS Council will remain
available.
The online platform has been designed
in a user-friendly manner and the Secretariat stands ready to support delegates
and capital-based officials to become familiar with this tool and to assist them
in its practical use. A user guide explaining how the system works and what can
– and cannot - be submitted through the platform will be provided to members, and
delegations will be able to access an online training site reproducing all the functions
of the e-TRIPS NSS. Additionally, the WTO Secretariat will organize an informal
training session on the margins of the next TRIPS Council on 4-5 June 2019.
The initial version will only be available in English, but
French and Spanish versions will follow. The Secretariat acknowledged the helpful
feedback and collaboration of many delegates who over an extended development process
helped to shape and refine this new tool in line with the practical preferences
of members.
On the broader e-TRIPS gateway, the online information portal
that will allow members to search and extract the full range of TRIPS information
managed by the Secretariat, work is progressing steadily. The Secretariat will engage
with delegates and other stakeholders on the design and layout of this gateway,
and will update members at the June meeting, including information on an initial
release version for trial by delegations.
A workshop on Article 66.2 of the TRIPS Agreement - which calls on developed countries to provide
incentives to enterprises and institutions in their territories for the purpose
of promoting and encouraging technology transfer to least-developed countries in
order to enable them to create a sound and viable technological base – was held
back-to-back with the Council on 11-12 February.
As on previous occasions, the workshop provided the opportunity
to exchange views between cooperation partners and to deepen the dialogue on incentives
for transfer of technology to respond to the needs identified by least-developed
countries. The improved format of this year's workshop and the participation of
capital-based delegates was much appreciated by LDCs and
developed countries alike.
Developed countries took the floor to stress the great importance
they place on the implementation of Article 66.2 and said they remained committed
to address the needs and priorities of LDC members over time. Delegations discussed
the idea of designating focal points for both developed and LDC members, as they
could play an important role in disseminating information or reports about technology
transfer programmes and their effectiveness to broader
audiences. The need to clearly identify priorities to ensure
that the outputs of technology transfer incentives are tailored to specific objectives
and that relevant feedback can be provided was also stressed.
LDCs noted that the designation of focal points can be a good
starting point to improve information access and coordination and suggested that
the entities responsible for project implementation at the country level engage
more actively in order to improve information exchange and efficiency.
Members continued discussions on the role intellectual property
(IP) plays as a driver for more inclusive innovation, and addressed the complex
interplay between IP and the public interest. Part of a series of TRIPS Council
discussions on IP and innovation launched in 2012, this theme was put on the agenda again at the request of Australia, Canada,
Chile, the European Union, Hong Kong China, Japan, the Republic of Korea, Singapore,
Switzerland, Chinese Taipei and the United States.
The theme comprised two sub-topics: a summary of "The Societal Value of IP in
the New Economy" (IP/C/W/650), an issue that the Council discussed at its meetings last
year, and "Public-Private Collaborations in Innovation" (IP/C/W/652), a theme on which the proponents wish to focus this year.
Proponents highlighted the many practical examples raised
at the three meetings of the TRIPS Council last year showcasing
the important impact of IP on innovation, and consequently on economic growth, the
lives of citizens, and the development of new businesses. On those discussions,
proponents shared inspiring stories of how innovators and creators, including in
partnership with governments, have used IP tools to address global challenges, which
have contributed to technological and creative progress for the benefit of humanity.
The proponents highlighted advancements in
the areas of: education/training and digital applications for the visually impaired;
creative work programmes to facilitate cross-border exchanges
and cross-cultural awareness; healthcare products to provide faster diagnosis and
better treatments; digital healthcare solutions to reform healthcare services; agricultural
technology to help farmers harvest double yields; technology development projects
either applied or developed in countries in need of assistance; and the use of electric
and digital sources in the transportation, environment and machine manufacturing
sectors.
While recognizing that intellectual property rights (IPRs)
may provide an incentive to innovation, some members underlined that they are neither
a necessary nor a sufficient condition, and can only be effective in certain contexts.
Giving unlimited power to IP rights holders can adversely affect innovation, and
therefore a discussion on IP and innovation that places emphasis on the existing
barriers to the use of the IP system by innovative companies is
needed, these members said. They cited the 2018 UNCTAD Development Report,
which indicates that 22% of individuals use the internet in Africa as compared with
80% in Europe.
Looking forward, the proponents suggested to explore how a strong collaboration between public and private
sectors can promote effective innovation and help address global challenges. They proposed three possible areas of discussion - research and development
(R&D), innovation in creative industries and branding, and commercialization
– and engagement in more concrete issues, such as how to balance supporting innovative
businesses with accountability for public funds; how IP should be owned and managed;
and how public agencies can help the private sector acquire and develop expertise
in R&D and IP.
Continuing the Council's debate on the theme of "IP and
the public interest", South Africa submitted a communication (IP/C/W/651) to discuss the promotion of public health through competition
law and policy, with specific reference to exploitative excessive pricing and restrictive
practices such as reverse payment agreements, strategic patenting and, more recently,
niche pricing for off-patent pharmaceuticals. Proponents suggested to discuss these in light of the objectives and principles of
the TRIPS Agreement, which acknowledge WTO members' ability to employ TRIPS-consistent
measures to protect public health and nutrition, and to promote the public interest,
and in light of the various flexibilities that allow members to prevent the abuse
of IPRs.
Delegations were invited to share
their experiences in using competition law regimes to address anti-competitive practices
that affect access to medicines and medical technologies, and the challenges faced
in the enforcement of competition law when it affects access to medicines or medical
technologies. South Africa reiterated that the inclusion of competition-related
provisions in the TRIPS Agreement made the TRIPS Council the appropriate forum to
discuss IP and competition in an open and inclusive manner.
However, other members continued to express reservations over
discussions of this subject matter in the Council, given the fact that relatively
few delegates can be expected to have deep expertise in
both IP and competition law and policy. Other already established international
fora, including the Organisation for Economic Cooperation
and Development (OECD) and the International Competition Network (ICE), are a better
venue for this discussion, they reiterated.
On the issue of 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 – also known as "non-violation and situation complaints"
– delegations repeated well-known positions, but a growing number of delegations
indicated readiness to constructively engage in discussions about possible modalities
in case such complaints were to become applicable.
The Council chair, Dr Walter Werner
of Germany, stressed that there have been some encouraging signs at recent meetings,
not only in terms of readiness to engage in a constructive discussion, but also
in terms of giving examples of what the scope and modalities could look like if
non-violation and situation complaints were to apply to TRIPS.
However, the chair noted that there are barely ten months
left until the December 2019 deadline approved at the 11th Ministerial Conference
in December 2017 that extended the moratorium on non-violation and situation complaints
for an additional two years. It is therefore important that discussions soon begin
to focus on concrete suggestions regarding what recommendation the Council should
prepare for the next Ministerial Conference, to be held
in June 2020. As the 12th Ministerial Conference is not far away, work to get there
needs to intensify as of now, the chair said.
The Council chair said that since the last meeting of the
Council, Georgia has deposited its instrument of acceptance for the 2005 protocol
amending the TRIPS Agreement, which applies now to 126 WTO members. The chair encouraged
the remaining members still operating under the 2003 waiver decision to expedite
action.
Amendment of
the TRIPS Agreement
WTO members on 6
December 2005 approved
changes to the WTO’s intellectual property (TRIPS) agreement in order to make
permanent a decision on patents and public health originally adopted in 2003.
This was formally built into the TRIPS Agreement after
acceptance of the Protocol amending the TRIPS Agreement by two thirds of the
WTO’s members. The amendment took effect on 23 January 2017 and replaced
the 2003
waiver for members who have accepted the
amendment.
Members who are yet to accept the
amendment currently have until 31 December 2019 to do so (document WT/L/1024). For them the waiver will continue to apply until a member
accepts the amendment and it takes effect for it.
Members and dates of acceptance
·
Albania (28 January
2009)
·
Argentina (20 October
2011)
·
Australia (12
September 2007)
·
Bahrain, Kingdom of
(4 August 2009)
·
Bangladesh (15 March
2011)
·
Belize (15 September
2016)
·
Benin (23 November
2016)
·
Bolivia, Plurinational State of (30 January 2018)
·
Botswana (18 June
2014)
·
Brazil (13 November
2008)
·
Brunei Darussalam (10
April 2015)
·
Burkina Faso (17
January 2017)
·
Cambodia (1 November
2011)
·
Canada (16 June 2009)
·
Central African
Republic (13 January 2014)
·
Chile (26 July 2013)
·
China (28 November
2007)
·
Colombia (7 August
2009)
·
Congo (31 October
2017)
·
Costa Rica (8
December 2011)
·
Côte d’Ivoire (7 May
2018)
·
Croatia (6 December
2010)
·
Dominica (28 November
2016)
·
Dominican Republic
(23 May 2013)
·
Egypt (18 April 2008)
·
El Salvador (19
September 2006)
·
European Union
(formerly EC) (30 November 2007) (See text of Instrument of Acceptance)
·
Fiji (1 May 2017)
·
Gabon (23 November
2017)
·
Georgia (21 November
2018)
·
Grenada (8 December
2015)
·
Guinea (15 February
2018)
·
Honduras (16 December
2011)
·
Hong Kong, China (27
November 2007)
·
Iceland (12 October
2015)
·
India (26 March 2007)
·
Indonesia (20 October
2011)
·
Israel (10 August
2007)
·
Japan (31 August
2007)
·
Jordan (6 August
2008)
·
Kenya (21 July 2015)
·
Korea, Republic of
(24 January 2007)
·
Kyrgyz Republic (6
February 2018)
·
Lao People’s
Democratic Republic (29 September 2015)
·
Lesotho (4 January
2016)
·
Liechtenstein (23
January 2017)
·
Macao, China (16 June
2009)
·
Madagascar (9
November 2017)
·
Malawi (24 July 2017)
·
Malaysia (10 December
2015)
·
Mali (20 January
2016)
·
Mauritius (16 April
2008)
·
Mexico (23 May 2008)
·
Moldova, Republic of
(7 July 2015)
·
Mongolia (17
September 2010)
·
Montenegro (9
September 2013)
·
Morocco (2 December
2008)
·
Myanmar (16 December 2015)
·
Nepal (11 March 2016)
·
New Zealand (21
October 2010)
·
Nicaragua (25 January
2010)
·
Nigeria (16 January
2017)
·
Norway (5 February
2007)
·
Oman (1 March 2017)
·
Pakistan (8 February
2010)
·
Panama (24 November
2011)
·
Papua New Guinea (22
June 2016)
·
Paraguay (4 July
2018)
·
Peru (13 September
2016)
·
Philippines (30 March
2007)
·
Qatar (16 April 2016)
·
Russian Federation
(22 September 2017)
·
Rwanda (12 December
2011)
·
Saint Kitts and Nevis
(27 July 2015)
·
Saint Lucia (2 May
2016)
·
Saint Vincent and the
Grenadines (9 May 2017)
·
Samoa (21 April 2016)
·
Saudi Arabia, Kingdom
of (29 May 2012)
·
Senegal (18 January
2011)
·
Seychelles (8 June
2016)
·
Sierra Leone (21
March 2017)
·
Singapore (28
September 2007)
·
South Africa (23
February 2016)
·
Sri Lanka (9
September 2015)
·
Switzerland (13 September
2006)
·
Chinese Taipei (31
July 2012)
·
Tajikistan (23 May
2016)
·
Tanzania (14 March
2016)
·
Thailand (28 January
2016)
·
The former Yugoslav
Republic of Macedonia (16 March 2010)
·
Togo (13 March 2012)
·
Trinidad and Tobago
(19 September 2013)
·
Turkey (14 May 2014)
·
Uganda (12 July 2010)
·
Ukraine (16 March
2016)
·
United Arab Emirates
(23 January 2017)
·
United States (17
December 2005)
·
Uruguay (31 July
2014)
·
Viet Nam (23 January
2017)
·
Zambia (10 August
2009)