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

H.E. Ambassador Lundeg Purevsuren
143.   Brazil thanks the WTO Secretariat for preparing the draft report. Legislation to implement the Amendment to the TRIPS Agreement contained in Article 31bis has been in force in Brazil since 21 February 2018. 144.   We mostly welcome capacity building activities and assistance material aiming at the promotion of access to medical technologies and innovation for the implementation and use of the System, in order to enable interested Members effectively to assess it. 145.   A basic tenet of the patent system is that legislation should provide incentives that lead to new discoveries and inventions, while ensuring that those incentives are not overly restrictive and do not create barriers to innovation and dissemination of knowledge. 146.   Brazil believes that all Member have the obligation to pursue a balance between the interests of the IP right holders and those of society as a whole. Preserving such balance is the best way to safeguard the legitimate interests of all stakeholders of the patent system. For instance, the regulatory review exception, also known as the Bolar exception, plays an important role in providing the realization of that balance, especially by ensuring that the market power granted by a patent does not create anti-competitive externalities beyond the term of protection of 20 years. 147.   This is also true regarding compulsory licensing for patents. Brazil is of the view that this is a very important exception to restore the balance in the special cases when its use is required, such as, but not limited to, emergency health situations or the anticompetitive use of patents. 148.   We find that this particular exception should be used within the rules provided in the TRIPS Agreement and the Doha Declaration on the TRIPS Agreement and Public Health in the context of finding a balance between the incentives to innovation and the enhancement of access to the technology embodied in the patent. 149.   Brazil thus thanks the Secretariat and supports the proposal to the General Council for a decision to extend the period for acceptances of the Protocol.
The Council took note of the statements made and so agreed.
21.   The Chair recalled that the review of 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.
22.   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.
23.   He suggested that: (i) he would brief the Council on the status of acceptances of the Protocol Amending the TRIPS Agreement; (ii) he would offer the floor to delegations for an exchange of views about the functioning of the System; and (iii) the Council would consider the draft report to the General Council.
24.   He noted that the current period for accepting the Protocol Amending the TRIPS Agreement ran until 31 December 2019. To date, the amended TRIPS Agreement was binding for 128 WTO Members. In other words, 36 Members were yet to accept the Protocol Amending the TRIPS Agreement. He encouraged those Members to complete their domestic procedures as soon as possible.
25.   When the TRIPS Amendment entered into force in January 2017, Members had noted that it would be useful to consider how to make this new procurement tool work effectively in practice. He encouraged delegations to engage in a constructive discussion, which could also build on earlier reviews. As previous Chairs and he himself had indicated on past occasions, delegations might find two documents particularly helpful to facilitate their considerations: (i) the Council's Annual Review of 2016, circulated as IP/C/76; and (ii) the Secretariat's 2016 Report on Technical Cooperation Activities, circulated as 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. He invited delegations to exchange views about the functioning of the System.
26.   The representatives of India; Brazil; South Africa; Canada; the United States of America; Japan; and Zimbabwe took the floor.
27.   The Chair noted that a draft report had been prepared by the Secretariat. It was modelled on previous years' reports and had been circulated as JOB/IP/34. It contained factual information on the implementation and use of the System. It also included a list of Members who were yet to accept the Protocol Amending the TRIPS Agreement. As with previous reports, an extract from the Council's minutes on this agenda item would be attached to the report in Annex 1.
28.   The Council also had to decide whether to extend the period for acceptance of the Protocol, which currently ran until the end of 2019. Since 36 Members had yet to accept the Protocol, he suggested that the Council once again extend the period for acceptance for another two years, until 31 December 2021. A draft decision for the General Council had been included in Annex 2 of the Draft Report. He invited delegations to comment on the draft report and, to clearly indicate whether they agreed to the 2-year extension of the period of acceptance.
29.   The representatives of Barbados and India took the floor.
30.   The Chair proposed that the Council agree to: (i) adopt the draft report, on the understanding that the record of today’s discussion would be attached to it as Annex 1; and (ii) to submit, for the General Council’s adoption, a decision to extend until 31 December 2021 the period for the acceptance by Members of the Protocol Amending the TRIPS Agreement.
31.   The Council took note of the statements made and so agreed.
IP/C/M/93, IP/C/M/93/Add.1