105. Introducing document IP/C/W/437, the representative of Nigeria, speaking on behalf of the African Group, recalled that Members had agreed that the amendment would be based, where appropriate, on the Decision. In this regard, the appropriateness of particular elements should be understood to refer to those elements in the Decision that were necessary to ensure that the amendment is legally predictable, secure and economically and socially sustainable. He said that the proposal by the African Group was aimed at providing the basis for such an amendment. It was proposed to amend Article 31 of the TRIPS Agreement by adding a second paragraph to the Article, so that the current text of Article 31 would become Article 31, paragraph 1 and the amendment text would become Article 31, paragraph 2. The proposed amendment would be based on the Decision with modifications, as appropriate.
106. It was proposed to eliminate a number of provisions in the Decision that were redundant in the context of an amendment or where their purpose would otherwise be served by existing provisions of the TRIPS Agreement, such as the provisions on compulsory licences or enforcement. For consistency and clarity, the actual text of the amendment had been modified, including the arrangement of paragraphs to fit into the TRIPS Agreement. He also noted that the footnote would be renumbered as appropriate to follow the numbering of the TRIPS Agreement.
107. He further explained that the Preamble of the Decision had been eliminated because it was only meant to provide the context for the Decision. Also, the last sentence of paragraph 1(b) had been eliminated because it represented flexibility like other provisions contained in the TRIPS Agreement. Similarly, the second paragraph was also eliminated since the elements contained therein were those relating to the conditions for the use of the Decision whose purpose would be served by other existing provisions of the TRIPS Agreement, such as the provisions on enforcement and those contained in the current Article 31. For example, on the specification of quantities, the patent holder would be informed and the legal validity of the licence was subject to judicial review or review by any other independent authority as contained in paragraphs (i) and (j) of Article 31 of the TRIPS Agreement.
108. With regard to paragraph 4 relating to re-exportation, the proposal had adequately addressed the matter under its sub-paragraph (d). Similarly, the provision contained in paragraph 8 of the Decision was not necessary once the amendment came into force as this paragraph was only applicable to waivers as required by Article IX:4 of the Marrakesh Agreement Establishing the WTO. The Annex to the Decision had been eliminated, since it established a self-selection criterion and did not add any value. This was evident from the fact that any Member notifying the intention to use the system would clearly and explicitly indicate that it lacked manufacturing capacity.
109. He concluded that the proposal presented a viable basis for undertaking the amendment as foreseen in paragraph 11 of the Decision. He noted that the proposal was not meant to re-open discussion on the Decision but was aimed at taking the process forward in a constructive manner. He said that his delegation would be willing to engage with Members with a view to concluding the process in an expeditious manner.
