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.

Incentives to transfer technology to least-developed countries

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.

IP and innovation

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.

IP and the public interest

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.

Non-violation and situation complaints

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.

TRIPS amendment

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)