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

H.E. Ambassador Dagfinn Sørli and Ambassador Dr. Lansana Gberie
World Trade Organization

67.   The Secretariat1 circulated a note entitled "Annual Report on Notifications and Other Information Flows" on 1 March 2022, carrying document symbol IP/C/W/678, as revised on 7 March. This report builds upon the first such report, which was circulated around this same time in 2021 and warmly received by Members. Like 2021's report, 2022's report offers a factual overview of submission rates and trends for each of the primary TRIPS transparency mechanisms: notifications of laws and regulations; contact points; responses to the checklist on enforcement, and checklists relating to the reviews under Articles 24.2 and 27.3(b). It also discusses developed country Members' annual reports under Article 66.2 and Article 67.2 68.   The reports in this series are a continuation of the Secretariat's efforts to improve the factual information available to Members regarding the operation of the Council's transparency function. They seek to help Members make use of the publicly available e-TRIPS data, and to extend to the TRIPS Council a service of annual reporting on transparency mechanisms that is customary in other comparable WTO bodies. The current report covers submissions circulated from 1995 to the end of 2021, with a particular emphasis on 2021 submissions. 69.   Following3 a brief introduction, it begins by updating Members on the rate at which they have taken up the eTRIPS system. 70.   In 2021, Members4 increasingly opted to use the e-TRIPS Submission System to efficiently make transparency-related submissions to the Council online. 74% of submissions were made through the Submission System in 2021, compared to 63% in 2019 and 2020. Moreover, all but two Members who submitted reports under Article 66.2 and Article 67 did so using the Submission System. 71.   The companion5 eTRIPS Gateway, in turn, also continued to grow as a popular resource for Members who seek to access and analyse the data contained in Members' submissions. The number of unique visitors to the Gateway nearly doubled from 2020 to 2021. 72.   Having updated Members6 on the primary means by which TRIPS transparency information is now submitted and accessed, namely through the eTRIPS system, the report then addresses each TRIPS transparency mechanism in turn. Each sub-section begins with a brief overview of the nature of the commitment (which stems either from the TRIPS Agreement itself, or subsequent decisions of this Council), and then summarizes the submissions circulated since 1995, with an emphasis on those circulated in 2021. We identify discernible trends and offer supporting charts, graphs, and tables. I will highlight a few key points related to each transparency mechanism on the next few slides. 73.   First, with respect to notifications under Article 63.2 of the Agreement, it is evident that from 1995 through 20027 Members exerted significant efforts to submit initial notifications of their laws and regulations. However, given the ongoing nature of these obligations, and Members' continuously evolving IP systems, fewer notifications of subsequent and revised legislation have been received than would be expected. 41% of Members subject to the Article 63.2 obligation have not notified a new or amended law or regulation in over 15 years. 74.   On the positive side8, however, 2021 was a banner year. Except for 2013, more notifications were received in 2021 than in any other year since the annual rate of notifications stabilized somewhat in 2005. This was due in no small part to the continued efforts of the United Kingdom9 to update the Council on its current and historical IP laws and regulations. As you can see, among the 233 laws and regulations notified in 2021 by the 16 Members identified on this slide, the United Kingdom alone notified 150, or 64%. 75.   Although10 notifications of IP laws and regulations reached an eight-year high in 2021, no notifications of the companion Checklist of Issues on Enforcement were received in 2020 or 2021. The blue trend line on this slide, showing the cumulative number of Members who have submitted responses, is fairly flat from 2002, indicating that most Members submitted their initial responses over 20 years ago. In fact, over 75% of the responses are over 20 years old. 76.   The data11 show that some contact point submissions may also be in need of updating. Most Members under the obligation to notify contact points under Article 69 and Article 67 of the TRIPS Agreement have done so, but over 50% were submitted more than ten years ago – and some date back over 20 years. In 2021, three Members updated their Article 69 contact points for cooperation on IP enforcement, and one Member updated its contact point for technical cooperation under Article 67. 77.   The Special Compulsory Licensing System12 established by the 2003 General Council Decision on the Implementation of Paragraph 6 of the Doha Declaration on the TRIPS Agreement and Public Health, and formalized in the amendments of the TRIPS Agreement that took effect in 2017, obliges Members wishing to avail themselves of the derogations to Articles 31(f) and 31(h) to make notifications to the TRIPS Council. In 2021, three such notifications were submitted to the Council. Two notifications of a general intention to use the Special Compulsory Licensing System as an importer were received – one from the Plurinational State of Bolivia, and another from Antigua and Barbuda, reproduced on the left-hand side of the slide. The Plurinational State of Bolivia subsequently also notified its specific need to import 15 million doses of a COVID19 vaccine, as excerpted on the right-hand side of the slide. These three notifications were the first of their kind submitted to the TRIPS Council since 2007. 78.   In addition to notifications13, the report also provides information regarding developed country Members' annual reports and information submitted pursuant to built-in reviews. Developed country Members are to submit annual reports on actions taken or planned in pursuit of their commitment under Article 66.2 to provide incentives to enterprises and institutions for the purpose of promoting and encouraging technology transfer to LDCs. Developed country Members have also agreed to annually report on programmes and projects undertaken to provide technical and financial cooperation in favour of developing countries and LDCs under Article 67. The report identifies the number of these reports that were received each year, as well as the frequency with which individual Members have submitted reports. The number of reports received in 2021 varied only slightly from 2020 and was consistent with figures from prior years. 79.   The final transparency mechanisms14 addressed in the report relate to the Council's review under Article 24.2 of the application of the TRIPS Section on geographical indications, and the review under Article 27.3(b), relating to domestic frameworks for protecting biotechnology inventions and new plant varieties. The data show that in recent years, a handful of Members have submitted responses to checklists on these topics, breaking a decade of minimal to no activity. In 2021, no new or updated responses to the checklist of questions in the context of the review under Article 24.2 were received. One Member, the Kingdom of Saudi Arabia, submitted its initial responses to the checklist of questions in the context of the review under Article 27.3(b). There is potential for more engagement in both of these reviews – fewer than one-third of Members have submitted responses to the checklist established by the Council under Article 24.2, and fewer than one-sixth of Members have submitted responses to the checklists established under the Council's review of Article 27.3(b). 80.   Much more information15 on each of the transparency mechanisms introduced during this brief presentation, as well as information on less frequent ad hoc notifications, can be found in the report itself. Detailed tables in the Annex to the report supplement the main text by offering data by submission type and by individual Member. We trust that this document will assist Members in enhancing the benefits of the transparency mechanisms set up under the TRIPS Agreement and by decisions of this Council. We encourage Members to review the report closely and to contact us with any questions regarding the data or the procedures for making a notification or other submission.

The Council took note of the notifications and the statements made.
4. The Chair invited the Secretariat to update delegations on the notifications under various provisions of the TRIPS Agreement that had been submitted since the meeting in October 2021, to then offer the floor to delegations wishing to introduce their notifications.
5. The representative of the Secretariat said that the Council had received the following notifications, under Article 63.2 of the TRIPS Agreement:
a. Australia had notified amendments to its Designs Act that implemented recommendations from a review of its designs systems, providing more flexibility to designers in the early stages of getting registered design protection;
b. Japan had notified revisions to its Design Act, Patent Act, Trademark Act and Copyright Act;
c. The Russian Federation had notified amendments to its laws permitting compulsory licensing with regard to patents, industrial designs, and layout-designs, and introducing provisions that allow compulsory licensing of pharmaceutical products for export;
d. The Kingdom of Saudi Arabia had notified has notified a Law on Commercial Courts that established rules and procedures for commercial courts that included claims and violations arising from the implementation of intellectual property laws;
e. The United Arab Emirates had notified a new law on the Regulation and Protection of Industrial Property Rights encompassing patent, utility model, industrial design, integrated circuit layout design, as well as undisclosed information;
f. The United States had notified its Trademark Modernization Act of 2020, which provided, inter alia, new procedures to challenge Federal applications and registrations with bogus or inaccurate claims of use;
g. Trinidad and Tobago had notified a consolidated version of its Trade Mark Act, which modernized numerous aspects of the trademark regime, including definitions, well-known marks, registry organization and border enforcement protection against counterfeit trademark goods;
h. The United Kingdom had notified a Trade Mark and International Mark Amendment Regulation 2021, addressing questions of retained European Law pertaining to trademarks; and two Orders amending the 2016 Copyright and Performances Order extending further protections to certain countries' nationals in order to implement recent free trade agreements signed by the United Kingdom and in response to countries recently joining the WIPO Performances and Phonograms Treaty;
i. Switzerland had notified amendments and regulations related to: patents and the Federal Patent Court; drugs and medical devices; Protection of Trademarks and Indications of Source; protection of designations of origin and geographical indications for agricultural products; use of Swiss indications for foodstuffs; copyright and related rights; designs protection; as well as on the protection of the coats of arms of Switzerland, the Swiss Red Cross, and the Names and Emblems of the United Nations Organization and other Intergovernmental Organizations; and
j. Brazil had notified amendments to its Industrial Property Act, its Plant Variety Protection Law, and several other laws and regulations in order to promote the ease of doing business.
6. The Chair invited delegations that had provided new or revised notifications to the Council to introduce those notifications. The representatives of Australia; Brazil; Trinidad and Tobago; Japan; Switzerland; the United States; the United Kingdom; the Kingdom of Saudi Arabia; and the Russian Federation took the floor.
7. The Chair invited the Secretariat to introduce the "Annual Report on Notifications and other information flows" (document ).
8. The representative from the Secretariat took the floor.
9. The Chair thanked delegations for the information provided on their notifications and welcomed the information provided by the Secretariat. He noted that notifications to the Council were not keeping up with the actual development of laws and regulations relating to TRIPS and emphasized that Article 63.2 of the TRIPS Agreement was not a one-off requirement. It was a core element of the TRIPS transparency arrangements, and a central part of the Council's substantive work. The "Annual Report on Notifications and Other Information Flows" (document ), which had been introduced by the Secretariat provided a Member-by-Member overview of each Members' most recent notifications and a number of Members had not notified any of their legislative changes for, sometimes, over ten years.
10. He urged Members to keep up-to-date their notifications by submitting any new or revised laws or regulations to the Council, as well as completing their initial notifications in case any material was still outstanding. The same applied to the Checklist of Issues on Enforcement which had been established by the Council as an element of Members' notification obligations. In this regard, he commended Switzerland for the submission of updates to its responses. However, most of the responses by other Members had not been updated for the last 20 years. Detailed information on individual Members was available from the Annexes of the Annual Notification Report.
11. The Chair recalled that all these notifications could be made through the e-TRIPS Submission System. The Secretariat was available to respond to any question in that regard.
12. The Council took note of the notifications and the statements made.
IP/C/M/104/Add.1, IP/C/M/104/Rev.1, IP/C/M104

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