US embassy cable - 05GENEVA2798

UNCLAS SECTION 01 OF 08 GENEVA 002798 
 
SIPDIS 
 
PASS USTR FOR ESPINEL, MULLANEY, HAUDA, WINTER, WELLER, 
STRATFORD 
STATE FOR WILSON, FELT, EB/TPP/IPC, EAP/CM 
USDA FOR LASHLEY, SALMON 
USDOC FOR ITA/SCHLEGELMILCH 
USDOJ PARSKY, CHEMTOB, GAMMS, SHARRIN 
 
E.O. 12958: N/A 
TAGS: EAGR, ETRD, WTRO, Trade 
SUBJECT:  WTO TRIPS COUNCIL October 25-26 2005 
 
  1.   SUMMARY:  The TRIPS Council meeting took place on 
       Tuesday and Wednesday October 25-26, 2005.  Mr. CHOI Hyuck 
       of Korea chaired the meeting.  There was an informal session 
       held in the morning of October 25, with the formal session 
       beginning on the afternoon and continuing to the next day. 
       In particular, discussion continued on the Decision on the 
       Implementation of Paragraph 6 of the Doha Declaration on the 
       TRIPS Agreement and Public Health.  As to the relationship 
       of TRIPS and the CBD, new documents were tabled by Peru and 
       a group of developing countries, and Brazil and India 
       requested new negotiations on patent disclosure 
       requirements.  The least-developed countries (LDCs) 
       submitted a request to extend the transitional period for 
       TRIPS compliance by another 15-years.  The formal meeting 
       was suspended to allow for further discussion on access to 
       medicines, the relationship of TRIPS and CBD, the LDC 
       extension request, and issues concerning non-violation and 
       situation complaints.  END OF SUMMARY 
 
  INFORMAL SESSION 
 
  2.   The TRIPS Council met in informal session on the 
       morning of October 25th.  The Chair raised three issues for 
       discussion:  (1) the Decision on the Implementation of 
       Paragraph 6 of the Doha Declaration on the TRIPS Agreement 
       and Public Health, (2) Non-violation Nullification Argument, 
       and (3) LDC extension request. 
 
  3.   Brazil and India requested to be included in the small 
       group consultations that are occurring, noted concerns over 
       the status of the Chairman's Statement as part of the 
       solution, and that the August 30th Decision is the basis for 
       the amendment.  Brazil noted that Members that are not 
       consulted could not be considered bound by such 
       consultations and that "no solution would be better than a 
       bad solution." 
 
  4.   India and Argentina noted that are apparently several 
       "informal" papers being circulated and discussed, but only 
       the Africa Group paper is formally on the table, so they 
       noted that they consider the African Group proposal from 
       December 2004 as the basis for work. 
 
  5.   The USDEL indicated that consultations on this matter 
       have been helpful.  The USDEL reiterated that the quality of 
       the amendment should be the same as the agreement reached on 
       August 30th.  It was noted that the U.S. is not seeking to 
       elevate or diminish the status of the Chairman's Statement, 
       and that the objective is to preserve the agreement reached. 
       The USDEL concluded by noting that the amendment process 
       should be a technical exercise and not a substantive one. 
 
  6.   The EC agreed that the process should be one of a 
       technical nature and legally secure, and welcomed 
       intensified consultations on the issue. 
 
  7.   Canada stated that it has circulated a paper noting in 
       detail how Canada has implemented the solution.  Canada also 
       stated that it has an interest in ensuring that the result 
       of the amendment process does not result in a change in 
       Canada's legislation. 
 
  8.   Chair concluded, noting that he did not know when he 
       would be able to give better ideas as to the timing of 
       further consultations. 
 
  9.   On NVNI, the Chair stated the status of Members' views 
       on four recommendation options that are before the Council: 
       1) a majority have stated that NVNI is inapplicable to 
       TRIPS; 2) some have stated that the NVNI moratorium should 
       be extended; 3) a couple have stated that NVNI is applicable 
       to TRIPS in the context of DSB rules; and 4) one Member 
       states that the moratorium should expire at the Ministerial. 
       Colombia added that it has received instructions from 
       Capital, and that it will maintain its long-standing 
       position that NVNI is inapplicable to TRIPS.  The Chair 
       concluded, noting that that there is no emerging consensus 
       and that he will report to the General Council that work 
       will need to continue in the run-up to the Hong Kong 
       Ministerial. 
 
  10.  On the LDC extension request, no delegation took the 
       floor.  It was discussed at the formal session. 
 
 
FORMAL SESSION 
 
FOLLOW-UP TO REVIEWS OF NATIONAL IMPLENTING LEGISALATION 
ALREADY UNDERTAKEN 
 
  11.  Egypt responded to follow-up questions submitted by 
       Switzerland and the United States.  Both the U.S. and 
       Switzerland thanked Egypt for its responses and stated that 
       it agreed with the Chair that the regular review of Egypt 
       should be deleted from agenda.  It was noted that follow-up 
       questions can be posed at any time. 
 
Decision on the implementation of paragraph 6 of the Doha 
Declaration on the TRIPS Agreement and public health 
 
  12.  Brazil began the discussion by noting that its country 
       takes the access to medicines issue and the amendment 
       process very seriously.  Brazil commented on its publicly 
       funded AIDS program and that the costs of medicines in 
       Brazil weighs heavily on Brazilian taxpayers.  Brazil noted 
       that a delicate balance was struck to reach agreement in 
       August 2003.  Brazil stated that there is no reference made 
       in the General Council Decision to the Chairman's Statement 
       and that paragraph 11 of the Decision calls for the 
       amendment to be based, where appropriate, on the Decision 
       and not on the Statement.  Brazil added that it could not 
       agree to a procedure that would change the legal status of 
       the Decision or the Statement.  Brazil noted concerns that 
       some Members make reference to "agreed package" or "agreed 
       solution" and stated that the amendment mandate in the 
       Decision mentions only the Decision itself.   Brazil 
       continued, noting that the asterisk that was included in 
       document WT/L/540 (the asterisk states that the Decision was 
       adopted by the General Council in the light of a Statement 
       read out by the Chairman) should be removed as it was added 
       after the Decision was adopted.  Brazil added that while the 
       Secretariat issued a Corrigendum that contains additional 
       language to that asterisk claiming that it is a Secretariat 
       note for administrative purposes only, this correction does 
       not solve the problem and the asterisk should be removed. 
       Brazil stated that the Africa Group proposal for the 
       amendment is the only proposal on the table, and provides a 
       very good basis for the amendment. Brazil argued that there 
       are elements in the Africa Group proposal that are quite 
       convincing (ie., removing redundancies when transposing it 
       to legal text for amendment of the agreement; regional 
       patent systems probably not appropriate to include in text 
       of TRIPS).  Brazil concluded by stating that it is an 
       interested party in whatever consultations the Chair carries 
       out. 
 
  13.  Nigeria made a positive statement that it considers the 
       consultations to be the most viable way of reaching some 
       decision before the Ministerial. 
 
  14.  India noted its substantive interest in the issue, both 
       as supplier and also for its citizens.  India stated that it 
       agrees that the Africa Group proposal is a good basis for 
       work.  Added that the Chairman's Statement is not a part of 
       the Decision itself and that the subject matter for 
       amendment is the Decision.  India concluded, noting that it 
       fully supports Brazil's statement regarding the asterisk. 
 
  15.  Argentina reiterated that the Africa Group proposal is 
       the basis for work on the amendment.  Noted that there are 
       elements in the proposal that deserve close attention. 
       Argentina noted that it agreed with the proposal that 
       certain aspects of the Decision should not be included in 
       the amendment.  Noted that the Decision is the only 
       agreement among the parties that exists, and added that it 
       does not recall any agreement on placement and use of the 
       asterisk.  Argentina stated that the text should stand as it 
       was formulated in the General Council. 
 
  16.  Philippines indicated that it is committed to remaining 
       constructive during the consultations and that it is ready 
       to participate in any consultations on the matter.  Noted 
       that it continues to maintain that the Africa Group proposal 
       is important basis for the discussions.  It stated that any 
       decision should be considered in the humanitarian context in 
       which the Decision was negotiated. 
 
  17.  China stated that it is in process of drafting 
       implementation regulations for both domestic use and for 
       export under the Decision.  China added that the amendment 
       will provide legal certainty for all Members. 
  18.  The USDEL stated that the consultations have been 
       helpful for the amendment process.  The U.S. reiterated its 
       position that there needs to be an express reference of the 
       Chairman's Statement and the Decision in the amendment.  The 
       process should not reopen the solution and noted that they 
       view it to be a technical exercise.  With respect to the 
       asterisk, the U.S. stated that the corrigendum was 
       unnecessary and that certainly no further action should be 
       taken by the Secretariat. 
 
  19.  New Zealand and Australia agreed with the U.S. 
       intervention that the process should be a technical 
       exercise.  They noted that the question is not whether to 
       deal with the Chairman's Statement but how should it be 
       described in the amendment. 
 
  20.  In response to Brazil's comments regarding whether the 
       Chairman's Statement is interpretive context, the EC noted 
       that the definition of "context" in the Vienna Convention is 
       defined in Article 31 paragraph 2a and the Statement is 
       context for interpretation.  India added that the EC's 
       explanation reconfirms fears about the unclear status of the 
       Chairman's Statement. 
 
  21.  Korea and Singapore asked that the voluntary opt-out 
       not be turned into a legal obligation during the amendment 
       process. 
 
  22.  The Chair stated that the EC paper remains as a non- 
       paper and that he will continue to hold consultations with 
       Members. 
 
REVIEW OF THE PROVISIONS OF ARTICLE 27.3(B), THE 
RELATIONSHIP OF THE TRIPS AGREEMENT AND THE CBD AND THE 
PROTECTION OF TRADITIONAL KNOWLEDGE AND FOLKLORE. 
 
23.    PERU PRESENTED A NEW PAPER ON SPECIFIC CASES RELATED 
  TO THEIR BIOPIRACY CONCERNS.  "CAMU CAMU" WAS DISCUSSED AS 
  AN EXAMPLE.  IT IS A WILD FRUIT SIMILAR TO CHERRY THAT COMES 
  FROM THE AMAZON AND CONTAINS HIGH LEVELS OF VITAMIN C.  PERU 
  NOTED THAT IN THE PAST SEVERAL YEARS, THERE HAVE BEEN 
  ATTEMPTS TO INDUSTRIALIZE CAMU CAMU FOR FOOD AND COSMETICS. 
  PERU ADDED THAT THERE IS A NEED FOR A MANDATORY DISCLOSURE 
  OF SOURCE REQUIREMENT, AS PATENT SYSTEMS HAVE FAILED TO 
  PREVENT PROBLEMATIC CIRCUMSTANCES INVOLVING THE PATENTING OF 
  GENETIC RESOURCES.  PERU REITERATED THAT IT SEEKS TO AMEND 
  TRIPS ARTICLES 27 & 29 TO INCLUDE MANDATORY DISCLOSE OF 
  SOURCE OF ORIGIN TO RESULT IN TRANSPARENCY AND SECURITY AND 
  TO HELP PERU AVOID HAVING TO CONDUCT STUDIES OF WHICH 
  PATENTS WERE ERRONEOUSLY GRANTED.  PERU ALSO ADDED THAT THE 
  AMENDMENTS WOULD HELP THE PATENT SYSTEM MEET THE DEVELOPMENT 
  NEEDS OF THEIR PEOPLE. 
 
24.  INDIA INTRODUCED ITS NEW SUBMISSION ON BEHALF OF 
  BOLIVIA, BRAZIL, CUBA AND PAKISTAN.  THE PAPER IS IN 
  RESPONSE TO THE CONTRACT BASED APPROACHED PRESENTED IN THE 
  JUNE SUBMISSION OF THE UNITED STATES.  INDIA NOTED THAT 
  WHILE THE CBD DOES NOT CONTAIN PATENT DISCLOSURE REQUIREMENT 
  PROVISIONS, THE CBD DID CONTAIN OBLIGATIONS THAT COUNTRIES 
  SHOULD NOT ALLOW INTELLECTUAL PROPERTY TO RUN CONTRARY TO 
  CBD OBLIGATIONS AND A NEW TRIPS DISCLOSURE REQUIREMENT WOULD 
  ENSURE THIS.  INDIA STATED THAT THE KEY PROBLEM RELATED TO 
  THE ACCESS TO GENETIC RESOURCE ISSUE IS WITH RESPECT TO 
  TRANSBOUNDARY ACTIONS AND THAT ONLY AN INTERNATIONAL BINDING 
  SOLUTION WILL SOLVE THE ISSUE.  INDIA ALSO STATED THAT "BAD 
  PATENTS" IS ALSO AN ISSUE AND THAT IT WILL ATTACH A LIST OF 
  BAD PATENTS IN A FUTURE SUBMISSION.  INDIA CONTINUED BY 
  NOTING THAT ERRONEOUSLY GRANTED PATENTS ARE NOT RARE 
  EXCEPTIONS, BUT THE BURDEN OF GETTING A PATENT REVOKED IS 
  HIGHER THAN THE AMENDMENT IT SEEKS. IT WAS NOTED THAT IS 
  PROPOSAL WILL NOT FORCE COUNTRIES TO ENFORCE THE LAWS OF 
  OTHER COUNTRIES.  INDIA CONCLUDED BY NOTING THAT IT WELCOMES 
  SUGGESTIONS ON AMENDMENT LANGUAGE. 
 
25.   The  USDEL  stated that there was more  vigor  in  the 
  discussions as there are more facts and issues being brought 
  forth  for  discussion.   The U.S.  stated  that  national 
  contract-based systems are essential elements of any system 
  regarding  access to genetic resources, and  continues  to 
  consider that new patent disclosure requirements  are  not 
  effective  in meeting the concerns raised.  The answer  is 
  tailored  national  laws outside the  patent  system  that 
  regulate  conduct  in this area.  The USDEL  continued  by 
  noting the negative effects new disclosure requirements will 
  have  on  biotech,  as an  engine of economic  growth.  As 
  result, the amendments in TRIPS could be negative for both 
  developed  and  developing  countries.   If  patents   are 
  invalidated, the proposals aim at advancing benefit sharing 
  will not be realized.  The USDEL mentioned that the IGC at 
  WIPO recently had its mandate renewed on TK/CBD/GR and noted 
  that it looks forward to the IGC's consultations that will 
  be informative to the TRIPs Council's work. 
 
26.    The  USDEL  also  responded  to  questions  posed  by 
  Switzerland at the June meeting. The first was (1) How would 
  a  purely national approach address problems arising  with 
  regard to trans-boundary access and benefit sharing,  that 
  is, cases where genetic resources and traditional knowledge 
  are  used outside the scope of application of the national 
  solutions advanced by the United States?  The USDEL  noted 
  that a contract-based system can provide great flexibility 
  concerning trans-boundary actions and provide an effective 
  solution  by  including appropriate  provisions  for  when 
  disputes  arise, such as choice of forum, choice  of  law, 
  and/or  binding international arbitration clauses.   These 
  provisions  would  be helpful whether the  dispute  is  in 
  country or "transboundary."  The contract could also specify 
  terms   regarding   the  nature  of  the   benefit-sharing 
  arrangement,  regardless  of  the  country  in  which  the 
  commercialization takes place. Similarly, under a contract- 
  based system, a monitoring plan for commercial applications 
  could be established, particular to the facts of each case. 
 
27.   The second was how would a purely contractual approach 
  address  cases  where no contract on  access  and  benefit 
  sharing has been concluded between the provider and the user 
  of genetic resources and traditional knowledge?  The USDEL 
  noted that cases in which no contract has been concluded in 
  violation  of  the domestic ABS regime, as  in  any  other 
  situation  where a company fails to comply  with  domestic 
  regulation,  would  be  governed by the  requirements  and 
  penalties of the domestic access and benefit-sharing regime 
  in place.  As a result, such an absence would be enforced by 
  criminal and/or civil penalties specifically designed  for 
  the ABS regime. 
 
28.   The third question was how would the proposed approach 
  take into account the generally long-term nature of research 
  and development activities involving genetic resources?  The 
  USDEL  noted  that  an  ABS system could  include  regular 
  reporting  requirements for researchers on the  nature  of 
  their  research,  including  whether  any  new  commercial 
  applications are envisioned.  The USDEL continued by noting 
  that  a  contract-based system is a  better  mechanism  of 
  addressing long-term R&D activities, since a patent may, and 
  sometimes  does, expire on a newly identified product before 
  a commercially valuable use of that product is discovered. 
  Furthermore, a contract based system can better control the 
  distribution of the genetic resource, if a patent  can  be 
  applied for, and how that patent is controlled. 
 
29.   The  USDEL  also responded to the questions  posed  by 
  India  at  the June meeting regarding Turmeric.  The  U.S. 
  stated the turmeric patent was filed by two Indian nationals 
  working in the U.S., and that the patent disclosure does, in 
  fact, disclose India as the country of traditional origin of 
  turmeric.   So  a  disclosure of  origin  would  not  have 
  prevented the situation from occurring.  Moreover, the U.S. 
  noted that the issue in this case was information relevant 
  to  inventorship  and the state of  the  prior  art.   The 
  applicant was already under a type of disclosure requirement 
  in  the U.S. - that of disclosing information material  to 
  patentability.  In the turmeric case, information regarding 
  healing properties of turmeric would have been material to 
  patentability but such information was not disclosed by the 
  applicant.  The USDEL noted that the re-examination process 
  allowed for prior art to be brought to the attention of the 
  USPTO,  a reexamination was filed, and the prior  art  was 
  applied against the claims in an appropriate and effective 
  manner,  leading  to cancellation of  all  claims  in  the 
  turmeric situation.  This took place over 19 months.   The 
  USDEL  reiterated  that  it  fully  supports  efforts   to 
  strengthen options to prevent mistakenly granted  patents, 
  such as the requirement to disclose information material to 
  patentability, the use of organized databases,  and  post- 
  grant opposition proceedings, such as reexamination. 
 
30.   Canada  provided questions to the U.S. concerning  its 
  position: 1) would the authorities that would be involved in 
  monitoring   a  contract-based  system  be   national   or 
  international in nature, and if international, under which 
  jurisdiction would they operate; and 2) in a scenario where 
  sanctions are put into place outside of patent system, what 
  impact would disclosure requirement have on patent system? 
  Canada  also provided questions to the EC regarding  their 
  textual changes proposed and how would they address access 
  to  benefit sharing arrangements.  Canada also  asked  the 
  demandeurs to clarify who would be the appropriate party in 
  a misappropriation suit; would it be the country of source 
  or  country  of origin named in the patent?  Canada  asked 
  Switzerland who would determine which government  agencies 
  are  part  of  pre-qualified list to  help  enforce  prior 
  informed consent and access to benefit sharing and what role 
  would they play? 
 
31.   Japan  noted  that  it has guidelines  for  access  to 
  genetic resource documents to help companies understand how 
  to  use the CBD.  Japan noted that it does not support the 
  proposals for patent disclosure requirements made by various 
  developing countries. 
 
32.   Thailand,  Ecuador,  Bolivia  and  Dominican  Republic 
  supported India and Brazil's submissions. 
 
33.   In response to Brazil's proposal that the Chair make a 
  recommendation to the TNC/GC to begin negotiations on patent 
  disclosure requirements, the USDEL noted that it does  not 
  support Brazil's request and it would not be appropriate for 
  Chair  to make a statement on the matter when there are  a 
  wide divergence of views on the issue.  Japan supported the 
  U.S. intervention, agreeing that it would be premature to do 
  anything but continue discussing the issue. 
 
34.   The Chair noted that he will report to the TNC/GC that 
  there  is no consensus and wide divergence of views.   The 
  Chair will keep this agenda item open on a suspended agenda. 
 
NON-VIOLATION AND SITUATION COMPLAINTS 
 
35.  The following delegations intervened noting that NVNI 
  complaints should not apply to TRIPS:  Canada, Colombia, 
  Argentina, Peru, Malaysia, Brazil, Chile, Thailand, EC, 
  Ecuador, India, Indonesia, Cuba and Venezuela.  India 
  further added its interpretation that TRIPS Article 64 will 
  not allow for NVNI complaints if the moratorium expires. 
 
36.  The USDEL noted that it supports application of NVNI in 
  TRIPS and that it expects the moratorium to end at the Sixth 
  Ministerial Conference. 
 
37.  Japan and Switzerland stated that they support further 
  work on scope and modalities. 
 
38.  The Chair noted that further consultations will need to 
  take place, as the Council cannot currently make a 
  recommendation to the TNC.  The Chair noted that he will 
  report to the General Council on the work undertaken on the 
  matter. 
 
TRANSITION PERIOD FOR LEAST-DEVELOPED COUNTRIES-REQUEST FOR 
EXTENSION 
 
39.  Zambian Ambassador introduced LDC proposal to extend 
  transitional period for TRIPS Compliance by An additional 15 
  years.  He stressed points concerning that resource and 
  economic difficulties LDCs face and the costs of 
  implementing TRIPS obligations.  Tanzania, Uganda, Cambodia, 
  Senegal, Lesotho all supported Zambia's statement. 
 
40.  Argentina and Brazil commented that no evidence exists 
  that IPRs are good for developing countries, citing their 
  Development Agenda proposals in WIPO.  They stated that many 
  developing countries are questioning the benefits of IP and 
  TRIPS in their economies and whether it actually leads to 
  technology transfer and development. 
 
41.  Japan, U.S., EC and Switzerland all indicated that a 
  more country-by-country approach to the extension request 
  would be more feasible in order to ensure that all countries 
  can implement and benefit from the TRIPS Agreement.  The 
  USDEL specifically noted the well-documented links between 
  IP and development. 
 
42.  Norway stated that it supported the request but also 
  stated that IP is essential to development and would come 
  back to the issue at a later time. 
 
REVIEW OF THE APPLICATION OF THE PROVISIONS OF THE SECTION 
ON GEOGRAPHICAL INDICATIONS UNDER ARTICLE 24.2 
 
43.  On the Article 24.2 review of the protection for 
  geographical indications, the EC stated that to further work 
  in this area the Council should develop an agenda based on 
  the Secretariat's compilation document developed last year 
  on the 24.2 checklist responses.  The EC added that the 
  discussion should focus on examining the application of the 
  GI provisions, but should not focus on Members' 
  implementation of provisions. 
 
44.  The USDEL opined that it continues to support a walk 
  through of the GI provisions paragraph by paragraph, and 
  that it would be premature to structure the discussions 
  based on the headings in the Secretariat's document.  The 
  U.S. noted that it is interested in attending any 
  consultations on the matter. 
 
45.  The Chair noted that it will revert the matter to the 
  next meeting. 
 
FOLLOW-UP TO THE SECOND ANNUAL REVIEW UNDER PARAGRAPH 2 OF 
THE DECISION ON THE IMPLEMENTATION OF ARTICLE 66.2 OF THE 
TRIPS AGREEMENT 
 
46.  Rwanda and Zambia noted their appreciation for the 
  reports submitted by developed countries on incentives to 
  encourage business to provide technology transfer to LDCs. 
  Rwanda specifically noted that more measures should be 
  adopted to encourage technology transfer, and suggested that 
  a committee of experts comprised of developed countries, 
  LDCs, and specialists formulate recommendations to make tech 
  transfer policies more effective. 
 
TECHNICAL COOPERATION AND CAPACITY-BUILDING 
 
47.  Developed countries submitted their reports on 
  technical assistance programs in 2005.  India raised an item 
  in the Australian report regarding GI's that they claimed 
  was mere advocacy of positions and not technical 
  cooperation.  Australia indicated that while they did have 
  an advocacy session, they stated that a work-shop was also 
  held with trademark examiners. 
 
48.  Brazil also noted concern with respect to the technical 
  assistance activities reported by WIPO, noting that WIPO 
  mischaracterized the Brazil, Argentina proposal at WIPO 
  regarding the Development Agenda. 
 
ENFORCEMENT OF INTELLECTUAL PROPERTY RIGHTS-COMMUNICATION 
FROM THE EUROPEAN COMMUNITIES 
 
49.  The EC noted its paper, tabled at the June meeting, 
  concerning enforcement matters.  The EC noted that it will 
  elaborate on proposals made in the communication in the 
  future.  The EC added that the level of enforcement rules in 
  TRIPS can be improved.  Moreover the concern over the lack 
  of enforcement is being debated at G8, Interpol, OECD, WIPO, 
  and should be discussed at the WTO as well.  The objective 
  of the discussions will be to identify solutions regarding 
  WTO compliance with enforcement requirements under TRIPS. 
  The EC requested that the Secretariat produce a synopsis of 
  Members' contributions to the enforcement checklist in 
  IP/C/W/5.  With respect to the discussion in the Council, 
  the EC noted that it should seek to:  identify difficulties 
  in implementing TRIPS enforcement provisions; identify the 
  appropriate mechanisms for addressing the difficulties; and 
  coordinate a response at the TRIPS level through various 
  tools, such as best practices.  The EC noted that border 
  measures should be the first topic of discussion. 
 
50.  Japan stated that the recent development of high 
  technology and mass distribution has prompted growth in 
  pirate and counterfeit goods.  There have been more reports 
  that these activities are linked to terrorist groups.  Japan 
  noted that it welcomes the EC proposal which presents very 
  helpful points.  Japan noted that in future meetings, 
  Members should pay attention to discussions going on in 
  other fora such as WIPO, G8 and OECD.  Discussions in TRIPS 
  Council should include those noted in paragraph 26 of the EC 
  proposal: procedures to preserve evidence; calculating 
  damages methodology; sanctions available at civil and 
  criminal level; information right; and use of provisional 
  and protective measures, custom measures and their 
  availability for export and transit. 
 
51.  Brazil reiterated concerns expressed in last meeting of 
  TRIPS regarding EC proposal.  It stated that it fully agrees 
  that piracy and counterfeiting are problems all Members 
  should address.  But Brazil noted that it disagrees with the 
  focus and activities it proposes the TRIPS Council to 
  undertake.  Brazil noted that implementation of TRIPS is 
  still an ongoing process for many, if not most, developing 
  countries and the Council is entertaining an LDC proposal 
  for extension of the burdensome TRIPS requirements.  It 
  noted that the EC's proposal is unfair, in that, it would 
  have the Council playing a de facto norm-setting role. 
  Brazil also noted that this proposal would be redundant with 
  the work going on at the WIPO enforcement body, which has 
  also turned down a TRIPS-plus norm-setting role.  Brazil 
  asked that the item be removed from agenda of all future 
  TRIPS Council meetings. 
 
52.  Argentina stated that the TRIPS Council agenda already 
  allows for discussion regarding TRIPS oversight of Members 
  implementation. Argentina also noted that the EC's proposal 
  should be off the agenda, as it does not represent the 
  interest of the majority of the members. 
 
53.  Canada noted that it is willing to discuss this issue 
  at future meetings. 
 
54.  The USDEL noted that the issue is an appropriate and 
  legitimate exercise for the Council to continue discussions. 
  The U.S. noted that it will need more time to consider the 
  details of the proposal, and noted that Council should focus 
  at present on important work already before us for the 
  Ministerial run up when we consider how to handle 
  enforcement discussions for the future.  The EC responded 
  noting that it will provide more detail regarding its 
  proposal after the Ministerial. 
 
 
55.  India, Egypt, China, Philippines, and Chile noted 
support for Brazil's recommendation that it be removed from 
the agenda. 
 
56.  Switzerland noted that this is an important issue to be 
addressed by Council.  In view of the Ministerial, 
Switzerland noted that it probably was not the time to do it 
now in the run-up.  But Switzerland noted that it wants to 
discuss this issue again at the next formal meeting. 
 
Korea noted that the issue of enforcement is being discussed 
at APEC, WIPO, and the OECD.  Korea added that when the EC 
proposal is available as formal document, they will comment 
on it. 
 
57.  The EC stated that it views the issue to be an 
appropriate discussion item for the Council, and that they 
are not trying to make the Council a norm-setting body, or a 
tribunal for how members are enforcing TRIPS. 
 
58.  Chair noted that this matter will be reverted to the 
next meeting. 
 
OBSERVER STATUS FOR INTERNATIONAL INTERGOVERNMENTAL 
ORGANIZATIONS 
 
59.  Brazil and other delegations expressed support for 
observer status for the South Centre and the CBD.  While 
Egypt reserved its right to come back with a written 
opinion,  the USDEL noted concern about granting observer 
status for several of the international observer 
organizations, including that guidelines have not be 
established by the General Council. 
 
 
OTHER BUSINESS 
 
60.  The U.S., Switzerland and Japan submitted an Article 
  63.3 request for details on specific enforcement cases in 
  China.  China noted it will study the requests, but stated 
  it will not take any more obligations than required, and 
  that Members should not take action based on unilateral 
  interpretations. Japan, Switzerland and the U.S. noted that 
  they submitted these requests with the hope of enhancing 
  understanding of IPR enforcement in China and look forward 
  to China's responses. 
 
61.   The Chair also announced the following tentative dates 
  for TRIPS Council sessions in 2006:  14-15 March 2006, 14-15 
  June 2006, and 24-25 October 2006.