215. The representative of the United States said that his delegation had serious reservations about the proposal by the African Group, for several reasons. First, with respect to paragraph (a) of the proposal, he believed that the existing transition period under Article 65.4 already provided a more than adequate period of time for developing country Members to implement product patent protection for those areas of technology that were not protected when TRIPS came into force. There was no evidence to suggest that developing country Members who had implemented product patent protection, i.e., the vast majority of developing country Members, had suffered as a result of this. In fact, the evidence showed that benefits had clearly accrued to these Members. Furthermore, his delegation believed that a prolonged transition period under Article 65.4 would discourage those developing country Members that had not yet done so from implementing product patent protection in certain important technologies. This, could have the effect of impeding the growth of these innovative industries in those Members and undermine economic development. Additionally, extended transition periods would also run contrary to the objectives of the multilateral trading system, which was to remove barriers to trade, including non-tariff barriers such as the lack of adequate and effective intellectual property protection.
216. With respect to paragraph (b) of the proposal, he said that Article 1.1 of the TRIPS Agreement already provided that Members were free to determine the appropriate method of implementing the provisions of the Agreement, including exclusive marketing rights, within their own legal system and practice. However, Members must implement such rights in a manner which would be consistent with Article 70.9, which clearly established the requirements under this obligation. Therefore, Members were not free to apply interpretations to this obligation that would be contrary to the clear meaning of the text. Exclusive marketing rights, by definition, meant that the right was exclusive; i.e., only the beneficiary of the right could exercise it. This necessarily meant that only the beneficiary would have the right to market the product during the prescribed period. This period, according to Article 70.9, was five years after marketing approval had been granted in the relevant Member or until a patent had been granted or rejected in that Member, whichever period was shorter, under the terms spelled out in Article 70.9. The obligation to provide exclusive marketing rights was part of the negotiated balance of the TRIPS Agreement and had to be respected as such. They were meant to compensate innovators for the lack of product patent protection in those few Members that did not have such protection at the time of entry into force of the TRIPS Agreement. Exclusive marketing rights were provided for as a compromise instead of the full "pipeline" protection that was sought by several countries, including the United States.
217. He said that the United States and other Members had already shown significant flexibility on this issue in agreeing to waive the obligation to provide exclusive marketing rights under Article 70.9 for LDCs until 2016. It was, therefore, incumbent upon those developing countries to which it applied to implement Article 70.9 as provided for in that provision. He added that he was interested in continuing the discussion on these issues, in particular with the African Group, to see if an acceptable way forward could be found.
