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TRIPS Article 27

TRIPS Article 27 refers to patentable subject matter. The first sentence of Article

27.1 requires that patents be available for “any inventions,” whether products or processes, and in all fields of technology. The invention must meet each of three criteria: (1) “new”; (2) “involve an inventive step”; and (3) “capable of industrial application.” There is no definition of the term “inventions” or the term “new.” However, footnote 5 permits Members to deem the terms “inventive step” and “capable of industrial application” to be synonymous with the terms “non-obvious” and “useful” respectively. The first sentence of Article 27.1 also makes the obligation regarding patentable subject matter subject to the provisions of paragraphs 2 and 3.

The second sentence of Article 27.1 requires WTO Members to make patents “available and patent rights enjoyable without discrimination as to the place of invention, the field of technology and whether products are imported or locally produced.” This nondiscrimination obligation is subject to Article 27.3. According to the Panel in Canada—Pharmaceutical Patents, the term “discriminate” in Article

27.1 extends beyond the concept of differential treatment and is potentially broader than national treatment or most-favored-nation treatment. Discrimination may arise from explicitly different treatment (de jure discrimination) or from ostensibly identical treatment which, due to differences in circumstances, produces differentially disadvantageous effects (defacto discrimination).[1] TRIPS Article 1.3 requires that treatment be accorded to “nationals” and that both the national treatment and MFN obligations in TRIPS apply to “nationals,” not products. Thus, in some cases, Article 27.1 only requires nondiscrimination with respect to inventors, which would require evidence that any inventor of a competing product has been granted a patent in order for a complainant to meet its burden of proof.

Article 27.3(b) permits Members to exclude from patentability “plants and animals other than micro-organisms, and essentially biological processes for the production of plants or animals other than non-biological and microbiological processes.” However, Article 27.3(b) requires Members to “provide for the protection of plant varieties either by patents or by an effective sui generis system or by any combination thereof.” The text in Spanish requires protection of“todas las obtenciones vegetales” (all plant varieties), whereas the English and French versions do not specify the scope of this obligation in this manner. This point has been raised in the Article 27.3(b) negotiations regarding the scope of the subject matter that is covered by the obligation.[2] Thus, Article 27.3(b) initially carves out an exception from the obligations contained in Article 27.1, by creating a right to exclude animals and plants from patentability, but then creates an obligation to provide IPRs for inventors of plant varieties. However, those IPRs do not have to be in the form of patents. Rather, they can be patents, an effective sui generis system, or any combination thereof. The obligation regarding IPRs for plant varieties is more flexible than patent obligations for other products and processes. In this regard, it constitutes an exception from the nondiscrimination obligation in Article 27.1. However, Article 27.3(b) also limits the right to exclude plants from some form of intellectual property protection when “plant varieties” are involved.

The general requirements for patentability apply to plant varieties. For example, existing plant varieties cannot be patented because they are not new inventions. However, the general requirements for patentability do not apply to a sui generis system of IPRs for plant varieties. The only requirement for a sui generis system is that it be “effective.” This interpretation is supported by the use of the term “plant varieties” rather than the term “new plant varieties”; the plant varieties need only be “new” to qualify for a patent. The UPOV Convention also requires that a plant variety be new to qualify for breeders’ rights. Thus, a sui generis system can grant IPRs for traditional knowledge regarding uses of existing plant varieties.[3] This can prevent the granting of IPRs for this use, by way of patents or UPOV breeders’ rights, by demonstrating that it is not “new.”[4]

The negotiating history of Article 27 shows that the negotiators were aware of the negotiation of the UPOV Convention revisions.[5] The negotiation history also shows that some parties wanted to exclude plants from patentability, while others believed that patents would promote innovation by requiring disclosure of the inventive process.[6] One party argued that plant variety rights were a distinct sui generis category of rights regulated by a separate convention and should therefore not be patentable subject matter.[7] The negotiating history indicates that Article

27.3(b) represents a compromise that permits flexibility regarding the design of IPRs for plant varieties. However, while the negotiating history indicates that the sui generis system some parties had in mind was the UPOV Convention, the final text of Article 27.3(b) does not limit WTO Members to that particular sui generis system.11 In the Article 27.3(b) negotiations the European Communities, Japan, Switzerland, the United States, and Uruguay have argued that the UPOV Convention is an effective sui generis system as required by Article 27.3(b) and that its use should be widespread.12 Brazil, India, Malaysia, Mexico, Singapore, Zambia, Zimbabwe, and the African Group have argued that Article 27.3(b) does not require Members to use the UPOV Convention as a model, although it may be an important point of reference.13 Brazil, India, Zambia, Zimbabwe, and the African Group argue that Members are free to choose a system based on other models, such as the CBD or the Food and Agriculture Organization (FAO) International Undertaking on Plant Genetic Resources.14

The majority of UPOV Members are WTO Members, but the majority of WTO Members are not UPOV Members.15 Interpreting Article 27.3(b) to require that WTO Members adopt the UPOV Convention to meet the obligation to use an effective sui generis system seems unlikely. The language of Article 27.3(b) does not support such an interpretation. Rather, it reflects the lack of agreement on this issue in the Uruguay Round. In addition, the 1978 and 1991 Acts are significantly different in several important respects, so it would not be clear which Act would be the most “effective.” While the Vienna Convention permits the interpretation of treaty terms in light of “any relevant rules of international law applicable in the relations between the parties,” in these circumstances it would be inappropriate to interpret Article 27.3(b) in light of the UPOV Convention.

Article 27.3(b) was to be reviewed four years after the date of entry into force of the WTO Agreement. This review requirement provides a further indication that 1990, Chairman: Ambassador Lars E. R. Anell (Sweden), MTN.GNG/NG11/27, November 14, 1990.

  • 11 Cottier, “Genetic Resources” 555 fn. 68.
  • 12 Note by the Secretariat, Review of Article 27.3(b) para. 61. For an analysis of what amounts to an effective sui generis system as required under TRIPS Article 27.3(b), see Srividhya Ragavan and Jamie Mayer, “Has India Addressed Its Farmers’ Woes? A Story of Plant Protection Issues” (2007) 20 Georgetown International Environmental Law Review 97.
  • 13 Note by the Secretariat, Review of Article 27.3(b) para. 62.
  • 14 Note by the Secretariat, Review of Article 27.3(b) para. 62. For an analysis of the International Treaty on Plant Genetic Resources for Food and Agriculture, see Gregory Rose, “International Law of Sustainable Agriculture in the 21st Century: The International Treaty on Plant Genetic Resources for Food and Agriculture” (2003) 15 Georgetown International Environmental Law Review 583; Harold J. Bordwin, “The Legal and Political Implications of the International Undertaking on Plant Genetic Resources” (1985) 12 Ecology Law Quarterly 1053; Kal Raustiala and David G. Victor, “The Regime Complex for Plant Genetic Resources” (2003) Working Paper No. 14, Program on Energy and Sustainable Development, Stanford University Center for Environmental Science and Policy (accessed September 20, 2011).
  • 15 As of December 5, 2012, there were 71 UPOV Members, of which 51 were parties to the 1991 Act, 19 to the 1978 Act, and one to the 1961/1972 Act. Members of the International Union for the Protection of New Varieties of Plants (accessed December 25, 2012).

Article 27.3(b) represented a compromise. However, paragraph 19 of the 2001 Doha Declaration expanded this review to require the TRIPS Council also to examine the relationship between the TRIPS Agreement and the CBD, the protection of traditional knowledge and folklore. The Doha Declaration also requires work on these topics to be guided by the TRIPS Agreement’s objectives (Article 7) and principles (Article 8), and to take development issues fully into account.[8] Brazil, India, Kenya, the African Group, Thailand, and the European Union have underlined the flexibility of Article 27.3(b) with respect to the choice of sui generis protection and several have argued that the term “effective sui generis system” requires further clarification.[9] The United States has argued that there are specific criteria that can be used to judge the effectiveness of a sui generis system, whereas some other Members have argued that the issue of whether a sui generis system is effective should be left for Members to decide.[10] Given the lack of criteria in the TRIPS Agreement and the ongoing debate among Members, it could be considered inappropriate for a WTO panel or the Appellate Body to resolve this issue by defining the criteria. However, a WTO panel faced with an Article 27.3(b) effectiveness issue might consider the remedies that a WTO Member’s legal system provides to institute and enforce judgments in favor of owners.[11] Such an approach could be justified by interpreting the term “effective” in light of the obligations regarding enforcement of IPRs in Part III of the TRIPS Agreement.

The WTO ministers meeting in Hong Kong in 2005 added a separate process of consultations on the relationship between the CBD and TRIPS, chaired by Director-General Pascal Lamy. The adoption of the Nagoya Protocol[12] has added a new wrinkle to WTO discussions regarding the relationship between the CBD and TRIPS and the review of Article 27.3(b).[13] However, WTO Members have not reached any agreement on these issues. As of December 2012, 92 countries had signed the Nagoya Protocol.[14] The experience in the Uruguay Round and the Doha Round both demonstrate the difficulties of WTO Members in reaching agreement on the relationship between TRIPS obligations related to plant varieties, the UPOV Convention, and the CBD.[15]

Article 27.2 creates a general exception to the patentability obligation of Article 27.1, first sentence. This exception permits Members to

exclude from patentability inventions, the prevention within their territory of the commercial exploitation of which is necessary to protect ordre public or morality, including to protect human, animal or plant life or health or to avoid serious prejudice to the environment, provided that such exclusion is not made merely because the exploitation is prohibited by their law.

This exception does not apply to the nondiscrimination obligation contained in Article 27.1, second sentence. Moreover, this exception would only apply in the case of plant varieties if a Member chooses patents for plant varieties. If a Member instead chooses a sui generis system the exception in Article 27.2 would not apply, because no issue of “patentability” would arise.

The effect of Article 27.3(b) is that WTO Members have the right to exclude plant varieties from patentability, provided that they offer a sui generis form of intellectual property protection. However, should Members choose not to provide sui generis protection, Article 27.3(b) obliges them to provide patent protection for plant varieties. This raises the issue of whether a Member could then invoke Article

  • 27.2 to justify the exclusion of some plant varieties from patentability. The wording of Article 27 suggests that this is possible. Article 27.3 provides additional grounds for non-patentability to those contained in Article 27.2. Article 27.3 begins with the phrase, “Members may also exclude from patentability.” The obligation in Article 27.3(b) to provide patents and/or sui generis protection appears as an exception to the exception in Article 27.2. There is no indication that Article
  • 27.2 cannot be invoked to justify excluding certain plant varieties from patentability once a Member has chosen a system of patents instead of a system of sui generis protection. However, such exclusions would have to meet the criteria of Article 27.2. Nevertheless, if a Member chooses a system of sui generis protection, Article 27.2 could not be invoked to exclude certain plant varieties from sui generis protection, since Article 27.2 only provides a right to exclude from patentability.

Assuming that a WTO Member has chosen a system of patents instead of a system of sui generis protection, which exclusions would meet the criteria of Article 27.2? The party invoking the exception in Article 27.2 has the burden of proof to show that (1) the commercial exploitation of the invention is prevented within its territory and (2) prevention is “necessary to protect ordre public or morality, including to protect human, animal or plant life or health or to avoid serious prejudice to the environment.”

Report on Issues Related to the Extension of the Protection of Geographical Indications Provided for in Article 23 of the TRIPS Agreement to Products other than Wines and Spirits and those Related to the Relationship between the TRIPS Agreement and the Convention on Biological Diversity, TN/C/W/61 (also circulated as WT/GC/W/633), April 21, 2011 (accessed May 25, 2011). See also the International Treaty on Plant Genetic Resources for Food and Agriculture (2001) adopted on November 3, 2001 in Rome (accessed April 9, 2013).

The phrase “necessary to protect ordre public or morality, including to protect human, animal or plant life or health or to avoid serious prejudice to the environment” echoes the language of GATT Article XX(a) (“necessary to protect public morals”) and GATT Article XX(b) (“necessary to protect human, animal or plant life or health”), as well as GATS Article XIV(a) (“necessary to protect public morals or to maintain public order”) and GATS Article XIV(b) (“necessary to protect human, animal or plant life or health”). Given the similarity of the language in all of these exceptions, it is reasonable to interpret TRIPS Article 27.2 in light of the relevant GATT and GATS jurisprudence.

The Appellate Body in US—Gambling interpreted the term “necessary” in GATS Article XIV(a) to mean the same as the term “necessary” in GATT Article XX.[16] Thus, the term “necessary” has been given the same interpretation in similarly worded exceptions in covered agreements that apply to different sectors (goods and services). While TRIPS addresses a different sector, US—Gambling indicates that this is not an obstacle to applying the same interpretation in Article 27.2. WTO panels have diverged in their interpretations of the term “unnecessary” in Article 2.2 of the TBT Agreement and the Appellate Body has not interpreted this term in the same manner as the term “necessary” in GATT Article XX (although the analysis is similar).[17] However, Article 2.2 is an obligation, not an exception, and, unlike TRIPS Article 27.2, its wording is quite distinct from the provisions in GATS Article XIV and GATT Article XX which use the term “necessary.” Articles 2.1 and 2.2 of the SPS Agreement also use similar wording to that of GATT Article XX(b) and, like Article 2.2 of the TBT Agreement, set out obligations rather than exceptions. However, the jurisprudence has yet to determine the extent to which the interpretation of GATT Article XX(b) is relevant to the interpretation of the SPS Agreement.[18] As the Appellate Body noted in US—Stainless Steel (Mexico), WTO Members cite WTO jurisprudence in legal arguments in dispute settlement proceedings and take the jurisprudence into account when enacting or amending national legislation.27 WTO Members also take the jurisprudence into account in trade negotiations. Thus, the interpretation of identical terms should be similar, given the similarities in the language that is used in the GATT, GATS and TRIPS provisions, the fact that all three are exceptions and the similar contexts of these provisions.

The context of TRIPS Article 27.2 is not identical to that of GATS Article XIV and GATT Article XX. The term “ordre public" is broader in Article 27.2 because it encompasses measures to “protect human, animal or plant life or health or to avoid serious prejudice to the environment.” GATT Article XX(a) and GATS Article XIV(a) do not apply to human, animal, or plant life or health, which are addressed in GATT Article XX(b) and GATS Article XIV(b). GATT Article XX(b) has been interpreted to cover environmental protection measures, as long as the measure in question is designed to protect “human, animal or plant life or health.”28 The reference to the environment in TRIPS Article 27.2 is narrower, since it is restricted to “serious prejudice.” However, the phrase “human, animal or plant life or health” should, as in GATT Article XX(b), encompass environmental protection measures designed to protect “human, animal or plant life or health.” Environmental measures that do not address these issues would face the stricter threshold of “serious prejudice” in TRIPS Article 27.2. However, taken together, GATT Article XX(a) and (b), GATS Article XIV(a) and (b), and TRIPS Article 27.2 cover substantially the same matters.

There is another difference in the context of TRIPS Article 27.2, compared to that of GATS Article XIV and GATT Article XX. While the language of the chapeau in GATS Article XIV regarding arbitrary or unjustifiable discrimination reflects that of the chapeau in GATT Article XX, TRIPS Article 27.2 contains no comparable language. However, the Article 27.2 exception does not apply to the nondiscrimination obligation of Article 27.1. Thus, Article 27.2 should be interpreted to require compliance with the broad nondiscrimination obligation of Article 27.1,29 which would have a similar effect to the nondiscrimination requirements ofthe chapeau in

Report, United States—Certain Measures Affecting Imports of Poultry from China (US—Poultry (China)), WT/DS392/R, adopted October 25, 2010, paras. 7.268-7.269, 7.479-7.481.

  • 27 Appellate Body Report, United States—Final Anti-dumping Measures on Stainless Steel from Mexico (US—Stainless Steel (Mexico)), WT/DS344/AB/R, adopted May 20, 2008, para. 160.
  • 28 Panel Report, Brazil—Measures Affecting Imports of Retreaded Tyres (Brazil—Retreaded Tyres), WT/DS332/AB/R, adopted August 20, 2009, paras. 7.44-7.46. Since GATS Art. XIV(b) uses identical language, the same interpretation should apply to it, given the Appellate Body’s interpretation of GATS Art. XIV(a) in US—Gambling.
  • 29 Regarding nondiscrimination in Art. 27, in Panel Report, Canada—Patent Protection ofPharma- ceutical Products (Canada—Pharmaceutical Patents), WT/DS114/R, adopted April 7, 2000, para. 7.92 the Panel stated:

Article 27 does not prohibit bona fide exceptions to deal with problems that may exist only in certain product areas. Moreover, to the extent the prohibition of discrimination does limit the ability to target certain products in dealing with certain of the important national policies referred to in Articles 7 and 8.1, that fact may well constitute a deliberate limitation rather than a frustration of purpose. It is quite plausible . . . that the TRIPS Agreement would want to require governments to apply exceptions in a non-discriminatory manner, in

GATS Article XIV and GATT Article XX. However, in the case of plants, Article

27.3 operates as an exception to the nondiscrimination obligation in Article 27.1, except in the case of plant varieties. Moreover, the complainant would have the burden of proving a violation of the nondiscrimination obligation of Article 27.1, whereas the respondent would have the burden ofproofunder the chapeau in GATS Article XIV and GATT Article XX.

Another difference between TRIPS Article 27.2, and GATS Article XIV and GATT Article XX, has to do with a linguistic difference. In English and French, TRIPS Article 27.2 uses the same form of the word “necessary” as in GATT Article XX and GATS Article XIV, but in Spanish there is a small variation. The term in Spanish is “necesarias” in GATT and GATS, and “necesariamente” in TRIPS Article 27.2. The text in Spanish suggests that the difference between TRIPS and GATT/GATS is due to grammatical differences in the structure of the provision: the Spanish text uses an adverb applied to a verb, whereas the French and English texts use an adjective applied to a noun. The text in French and English indicates that negotiators intended to convey the same idea in all three agreements.

A final difference in the context of TRIPS Article 27.2, compared that of GATS Article XIV and GATT Article XX, is the final requirement of the former. In TRIPS Article 27.2, the party invoking the exception must also show that the “exclusion is not made merely because the exploitation is prohibited by their law.” However, the manner in which Article 27.2 uses this phrase suggests that the inquiry must take place in a broader context than the national law of the Member in question. In addition, the justification for exclusion must be based on one of the permissible grounds for exclusion set out in Article 27. The negotiating history of the TRIPS Agreement appears to confirm this, since an earlier draft listed “law” as one of the permissible grounds for exclusion and was not included in the final text.30 The patentability of the subject matter in other jurisdictions might support the view that the exclusion of patentability in the respondent’s measure is made merely because the exploitation is prohibited by the respondent’s law. Thus, this requirement does not appear to alter significantly the subject matter of the Article

27.2 exception, as compared to that of the equivalent provisions in GATS Article XIV and GATT Article XX.

Given the similar wording and context, GATT and GATS jurisprudence suggests the following analysis would be appropriate in TRIPS Article 27.2. First, the party invoking the exception must make a prima facie case that the policy goal at issue in its measure falls within the range of policies designed “to protect ordre public or morality, including to protect human, animal or plant life or health or to avoid serious prejudice to the environment.” Since the latter part of this phrase is illustrative, ordre public or morality would include a potentially broad array of policy goals.

order to ensure that governments do not succumb to domestic pressures to limit exceptions to areas where right holders tend to be foreign producers.

30 Status of Work in the Negotiating GroupChairman’s Report to the GNG, WTO Doc. MTN. GNG/NG11/W/76.

Once it is established that the policy goal fits the exception, the party would then have to prove that the measure is “necessary” to achieve the policy goal. This analysis takes place in light of the level of risk that a Member has set for itself. To demonstrate that the measure is necessary involves weighing and balancing a series of factors. First, the greater the importance of the interests or values that the challenged measure is intended to protect, the more likely it is that the measure is necessary. GATT Article XX jurisprudence has addressed the importance of human life and health[19] and of environmental protection,[20] and would be relevant at this stage of the analysis. Second, the greater the extent to which the measure contributes to the end pursued, the more likely that the measure is necessary. In Brazil—Retreaded Tyres, the Appellate Body observed that a measure adopted in order to attenuate global warming and climate change, the contribution ofwhich is not immediately observable, could meet this requirement under Article XX(b); the same should be true under TRIPS Article 27.2.[21] Third, the less WTO- inconsistent the challenged measure is, the more likely it would be considered necessary. The final issue is whether a WTO-consistent alternative measure which the Member concerned could reasonably be expected to employ is available, or whether a less WTO-inconsistent measure is reasonably available. The weighing and balancing process of the first three factors also informs this analysis.[22]

The party invoking the exception may point out why alternative measures would not achieve the same objectives as the challenged measure, but it is under no obligation to do so in order to establish, in the first instance, that its measure is “necessary.” If the other party raises a WTO-consistent alternative measure that, in its view, should have been taken, the party invoking the exception would be required to demonstrate why its challenged measure nevertheless remains “necessary” in the light ofthat alternative or, in other words, why the proposed alternative is not, in fact, “reasonably available.” If the party invoking the exception demonstrates that the alternative is not “reasonably available,” in the light of the interests or values being pursued and the party’s desired level of protection, it follows that the challenged measure must be “necessary.”[23] One alternative that should be considered in the context of TRIPS is to issue a compulsory license under TRIPS Article 31, rather than denying patent protection altogether.

In the Doha Round negotiations, WTO Members have debated the kinds of exceptions that would be appropriate in a sui generis system of protection. This debate also provides a preview of the types of measures that might be justified under Article 27.2 or under other exceptions set out in TRIPS Articles 30 and 31. Suggested limitations and exceptions can be categorized in two groups: (1) exceptions regarding experimental use and the right to use a protected variety for further breeding aim to benefit other breeders and to promote further innovation (breeders’ exemption); and (2) exceptions that aim to ensure food security and preserve the integrity of rural communities include exceptions to the benefit of farmers, non-commercial use of plant varieties, and the system of seed saving and exchange as well as the selling among farmers (farmers’ privilege). Compulsory licenses might serve both objectives. While some Members agree that the breeders’ exemption allows breeders to freely use plant varieties protected by plant breeders’ rights in their breeding activities, others note that the scope of the exemption is unclear, particularly regarding compensation due to right holders. Some Members have argued that farmers’ privilege allows farmers to replant on their own holdings propagating material of protected plant varieties that they have harvested on their own holdings, with the issue of remuneration left to the national legislator. Other Members have argued that farmers’ privilege should not be limited to saving and replanting the material only on a farmer’s own holdings. Rather, the privilege should provide greater latitude in the case of subsistence and small farmers, as long as the commercial interests of plant breeders are protected. However, there is disagreement regarding whether certain categories of commercial farmers in developing countries should benefit from farmers’ exceptions.[24]

  • [1] Panel Report, Canada—Patent Protection of Pharmaceutical Products, WT/DS114/R, adoptedApril 7, 2000, para. 7.94.
  • [2] Note by the Secretariat, Review of Article 27.3(b) para. 52.
  • [3] Thomas Cottier, “The Protection of Genetic Resources and Traditional Knowledge: TowardsMore Specific Rights and Obligations in World Trade Law” (1998) 1(4) JIEL 555, 583 fn. 68 andaccompanying text; Thomas Cottier and Mario Panizzon, “Legal Perspectives on Traditional Knowledge: The Case for Intellectual Property Protection” (2004) 7 JIEL 371.
  • [4] Adam Masarek, “Treetop View of the Cathedral: Plant Variety Protection in South and Southeast Asian Least-Developed Countries” (2010) 24 Emory International Law Review 433, 462.
  • [5] Note by the Secretariat, Negotiating Group on Trade-Related Aspects of Intellectual PropertyRights, including Trade in Counterfeit Goods, Meeting of the Negotiating Group of July 12—14, 1989,Chairman: Ambassador Lars E. R. Anell (Sweden), MTN.GNG/NG11/14, September 12, 1989.
  • [6] Note by the Secretariat, Negotiating Group on TRIPS, July 12—14, 1989; Note by theSecretariat, Negotiating Group on Trade-Related Aspects of Intellectual Property Rights, includingTrade in Counterfeit Goods, Meeting of the Negotiating Group of October 30—November 2, 1989,Chairman: Ambassador Lars E. R. Anell (Sweden), MTN.GNG/NG11/16, December 4, 1989.
  • [7] Note by the Secretariat, Negotiating Group on Trade-Related Aspects of Intellectual PropertyRights, including Trade in Counterfeit Goods, Meeting of the Negotiating Group of November 1,
  • [8] Ministerial declaration, November 20, 2001,WT/MIN(01)/DEC/1, adopted on November 14,2001, (accessed May 20,2011); Note by the Secretariat, Review of Article 27.3(b).
  • [9] Note by the Secretariat, Review of Article 27.3(b) para. 47.
  • [10] Note by the Secretariat, Review of Article 27.3(b) para. 50.
  • [11] Masarek, “Treetop View of the Cathedral” 460.
  • [12] The Nagoya Protocol was adopted by the Conference of the Parties (COP) to the UNConvention on Biological Diversity (CBD) at its 10th meeting on October 29, 2010 in Nagoya:Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of BenefitsArising from their Utilization to the Convention on Biological Diversity (Nagoya Protocol) (accessed May 20, 2011).
  • [13] WTO News, “Nagoya gives new context to old views in intellectual property council” March 1,2011 (accessed May 20, 2011).
  • [14] Signatories to the Nagoya Protocol (accessed December 25, 2012).
  • [15] The progress made with respect to the review ofArt. 27.3(b) in the TRIPS Council is summarizedin Note by the Secretariat, Review of Article 27.3(b). The progress made in the Director-General’sconsultative process regarding TRIPS and the CBD is summarized in Director-General Pascal Lamy,
  • [16] Appellate Body Report, United States—Measures Affecting the Cross-Border Supply of Gamblingand Betting Services (US—Gambling), WT/DS285/AB/R, adopted April 20, 2005, para. 291. InChina—Publications, the panel followed the same interpretation in GATT Art. XX(a): Panel Report,China—Measures Affecting Trading Rights and Distribution Services for Certain Publications and Audiovisual Entertainment Products (China—Publications), WT/DS363/R, adopted January 19, 2010, para.7.759.
  • [17] Appellate Body Report, United States—Measures Concerning the Importation, Marketing and Saleof Tuna and Tuna Products (US—Tuna II (Mexico)), WT/DS381/AB/R, adopted June 13, 2012,paras. 318—19; Appellate Body Report, United States—Certain Country of Origin Labelling Requirements (US—COOL), WT/DS386/AB/R, adopted July 23, 2012, para. 374. In US—Clove Cigarettes,the Panel’s approach did not differ significantly from the approach taken in GATT Art. XX(b): PanelReport, United States—Measures Affecting the Production and Sale of Clove Cigarettes (US—CloveCigarettes), WT/DS406/R, paras. 7.358—7.361. In US—Tuna II (Mexico), the Panel’s approachdiffered from the approach taken in GATT Art. XX(b): Panel Report, United States—MeasuresConcerning the Importation, Marketing and Sale of Tuna and Tuna Products (US—Tuna II (Mexico)),WT/DS381/R, adopted June 13, 2012, para. 7.465. In US—COOL, the Panel considered thejurisprudence of GATT Art. XX(b) to be relevant to the interpretation of Art. 2.2 of the TBTAgreement, but did not complete its analysis in this regard: Panel Report, United States—CertainCountry of Origin Labelling Requirements (US—COOL), WT/DS384/R, WT/DS386/R, adopted23 July 2012, paras. 7.670, 7.693, 7.720.
  • [18] Appellate Body Report, European Communities—Measures Concerning Meat and Meat Products(Hormones) (EC——Hormones), WT/DS26/AB/R, adopted February 13, 1998, paras. 238—9; Panel
  • [19] Appellate Body Report, European Communities—Measures Affecting Asbestos and Asbestos-Containing Products (EC—Asbestos), WT/DS135/AB/R, adopted April 5, 2001.
  • [20] Appellate Body Report, Brazil—Measures Affecting Imports of Retreaded Tyres (Brazil—RetreadedTyres), WT/DS332/AB/R, adopted August 20, 2009, para. 179.
  • [21] Appellate Body Report, Brazil—Retreaded Tyres para. 151; Panel Report, China—MeasuresRelated to the Exportation of Various Raw Materials (China—Raw Materials), WT/DS398/R, adoptedFebruary 22, 2012, paras. 7.536—7.538.
  • [22] Appellate Body Report, Korea—Measures Affecting Imports of Fresh, Chilled and Frozen Beef(Korea—Beef), WT/DS161/AB/R, adopted January 10, 2001; Appellate Body Report, EC—Asbestos';Appellate Body Report, US—Gambling; Appellate Body Report, Dominican Republic—MeasuresAffecting the Importation and Internal Sale of Cigarettes (Dominican Republic—Cigarettes), WT/DS302/AB/R, adopted May 19, 2005; Appellate Body Report, Brazil—Retreaded Tyres.
  • [23] Appellate Body Report, US—Gambling paras. 310—11.
  • [24] Note by the Secretariat, Review of Article 27.3(b) paras. 55—6, 61.
 
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