191. The Chairman recalled that, in paragraph 7 of the Declaration on the TRIPS Agreement and Public Health, the Ministerial Conference had agreed that least-developed country Members would not be obliged, with respect to pharmaceutical products, to implement or apply Sections 5 and 7 of Part II of the TRIPS Agreement or to enforce rights provided for under these Sections until 1 January 2016, without prejudice to the right of least-developed country Members to seek other extensions of the transition periods as provided for in Article 66.1 of the TRIPS Agreement. In paragraph 7, the Ministerial Conference had instructed the Council for TRIPS to take the necessary action to give effect to this pursuant to Article 66.1 of the TRIPS Agreement.
192. At the Council's informal meeting in February, the Secretariat had been requested to prepare a draft Decision for the Council to consider in order to carry out that instruction given by the Ministerial Conference. This draft Decision had been circulated before the Council's meeting in March in document JOB(02)/12. At that meeting, the Chair had not pressed for a decision because he had been aware that some delegations had had some concerns and wanted to reflect on the matter further. The Council had agreed that the Chair would hold consultations on that draft Decision before the meeting in June.
193. The question that had come up in the Chairman's subsequent consultations had been whether the decision to be made under Article 66.1 of the TRIPS Agreement to extend the transition period could or should extend to Article 70.8 and 70.9 of the Agreement that contained, respectively, the so-called mailbox and exclusive marketing rights provisions. This question had been taken up at the Council's informal meeting of 17 May 2002. Views had been expressed that Article 66.1 did not authorize the Council to apply the extended transition period to the provisions of Article 70.8 and 70.9, but at the same time delegations had indicated a willingness to cover the obligations under the latter Article, or at least they had expressed flexibility in this regard. At that informal meeting, the Secretariat had been requested to prepare prior to the present meeting a draft waiver that could be applied to least-developed country Members that had obligations under Article 70.8 and 70.9. Accordingly, the Secretariat had circulated a draft waiver in document JOB(02)/57.
194. Turning to the procedures for the adoption of these two Decisions and their interrelationship, the Chairman said that the TRIPS Council had authority pursuant to Article 66.1 of the TRIPS Agreement to adopt the draft Decision on the extension of the transitional period for least-developed countries in respect of pharmaceutical products. The draft waiver was designed to supplement the decision on extension by waiving the obligations under Article 70.8 and 70.9 with respect to pharmaceutical products that some least-developed country Members might have. If the Council would approve the waiver, it would then forward it to the General Council for adoption in accordance with Article IX.3 of the WTO Agreement.
