Minutes - TRIPS Council - View details of the intervention/statement

H.E. Ambassador Dr. Walter Werner
6   ANNUAL REVIEW OF THE SPECIAL COMPULSORY LICENSING SYSTEM (PARAGRAPH 7 OF THE ANNEX TO THE AMENDED TRIPS AGREEMENT AND PARAGRAPH 8 OF THE DECISION ON THE IMPLEMENTATION OF PARAGRAPH 6 OF THE DOHA DECLARATION ON THE TRIPS AGREEMENT AND PUBLIC HEALTH)
131.   The delegation of Switzerland would like to first thank the Secretariat for circulating the draft annual report; for the helpful, detailed information and the Guide to Notifications facilitating the use of the System offered on the dedicated WTO web page; as well as for the technical assistance it has provided, throughout last year, relating to the functioning of the Special Compulsory Licensing System and its effective use. 132.   Incorporating the System into the TRIPS Agreement by way of adding Article 31bis and the Annex provides welcomed transparency, clarity and legal certainty. The System is there and ready for use by eligible beneficiary Members. 133.   The Secretariat's draft annual report indicates that no notifications for the use of the System have been received in the year under review. No quick conclusions should be drawn from this fact with regard to the workability of the System. It has not been conceived for frequent use. 134.   Its purpose is to extend the TRIPS flexibility of Article 31 of the TRIPS Agreement to eligible beneficiary Members without relevant manufacturing capacity in the pharmaceutical sector. The System applies to a certain number of WTO Members, in a specific case and under particular circumstances. There are many instances where the lack of access to needed medicines in potential beneficiary countries is not related to patent protection. In such cases, recourse to the System will not and cannot provide a remedy. 135.   Should eligible beneficiary Members meet concrete problems when actually making use of the System, then it would be the Council's duty to examine these specific difficulties in its reviews and look into how they can be addressed best in a practical manner. Until we have heard in this Council of such concrete problems from eligible beneficiary Members, it is not helpful for the Council's review of the System if some delegations claim in the abstract that the System is not workable or should be amended.
The Council took note of the statements made.
The Council agreed on the draft cover note to the Report and to attach the record of the discussion to it.
17.   The Chair recalled that, in the past, the Special Compulsory Licensing System had been conducted pursuant to paragraph 6 of the 2003 Decision on the Implementation of Paragraph 6 of the Doha Declaration on the TRIPS Agreement and Public Health. Since the entry into force of the Protocol Amending the TRIPS Agreement on 23 January 2017, the review also responded to the requirements that had now been incorporated into the amended TRIPS Agreement.
18.   Paragraph 7 of the Annex to the amended TRIPS Agreement and paragraph 8 of the 2003 Waiver Decision required the Council to review the functioning of the System annually, with a view to ensuring its effective operation. They also required the Council to report annually on the System's operation to the General Council. In the case of the Waiver Decision, the review was also deemed to fulfil the requirements of Article IX:4 of the WTO Agreement.
19.   The Chair informed Members about the status of acceptances of the Protocol Amending the TRIPS Agreement. The current period for accepting the Protocol ran until 31 December 2019. Since the last meeting in June 2018, Paraguay had deposited its instrument of acceptance with the Director-General on 4 July. The amended TRIPS Agreement was binding for 126 WTO Members. In other words, 38 Members were yet to accept the Protocol Amending the TRIPS Agreement. He encouraged those Members to complete their domestic procedures as soon as possible.
20.   When the TRIPS Amendment had entered into force in January last year, Members had noted that it would be useful to consider how to make this new procurement tool worked effectively in practice. He encouraged Members to engage in a constructive discussion, which could also build on earlier reviews. Members might find two documents particularly helpful to facilitate their considerations. The first was the Council's annual review of 2016 (circulated in document IP/C/76); and the second was the Secretariat's 2016 report on technical cooperation activities (circulated in document IP/C/W/618). Annex II of that report summarized key issues that delegations might wish to consider supporting the practical use of the System.
21.   The representatives of Brazil, India, Japan, Canada, the United States of America and Switzerland took the floor.
22.   The Council took note of the statements made.
23.   The Chair turned to the Report to the General Council. A draft cover note had been prepared by the Secretariat (circulated in document JOB/IP/32). It was modelled on previous years' reports and contained factual information on the implementation and use of the System. Under the section on the Amendment to the TRIPS Agreement, it also included a list of Members who were yet to accept the Protocol Amending the TRIPS Agreement. As for past reports, an extract from the Council's minutes on this agenda item would be attached to the cover note.
24.   The Council agreed on the draft cover note to the Report and to attach the record of the discussion to it.
IP/C/M/90, IP/C/M/90/Add.1