DISPUTE SETTLEMENT UNDER THE TRIPS AGREEMENT FROM PERSPECTIVE OF TREATY INTERPRETATION




INTRODUCTION

It has been recognized that the Trade-Related Intellectual Property Rights (TRIPS) Agreement takes a unique position in the system of the World Trade Organization (WTO), because the TRIPS Agreement, as one of the three pillars of the WTO, is not only a potential first step toward linking of many possible trade-related issues, such as trade-related environment, trade-related labor standard, with the WTO system,[1] but also a unprecedented treaty integrating the four basic intellectual property conventions, i.e. Paris Convention for the Protection of Industrial Property (Paris Convention), Berne Convention for the Protection of Literary and Artistic Works (Berne Convention), Rome Convention for the Protection of Performers Producers of Phonograms and Broadcasting Organizations (Rome Convention) and Treaty on Intellectual Property in Respect of Integrated Circuits (IPIC Treaty).[2]
More than twenty disputes have arisen under the TRIPS Agreement since it was entered into force on January 1, 1995. Among these disputes, all settled cases implicate the issues of treaty interpretation, e.g., the rules of interpretation of the Vienna Convention on the Law of Treaty (Vienna Convention Rules) and the application of these rules for dispute settlement under the TRIPS Agreement, the interpretation of the Paris Convention and the Berne Convention through dispute settlement under the TRIPS Agreement, and the interpretation of several key articles of the TRIPS Agreement. Thus, it is very important to discuss the dispute settlement under the TRIPS Agreement from the perspective of treaty interpretation.
This issue is of particular importance for the People’s Republic of China. Pursuant to the Protocol of Accession for China (Protocol), China must fully comply with the TRIPS Agreement upon its entry into the WTO on December 11, 2001. China has made great efforts to implement the TRIPS Agreement by domestic legislation and judicial enforcement, but China is still a new Member of the WTO and needs to understand what is the precise scope of its obligations according to the TRIPS Agreement and the Protocols. Therefore, it is the task for this paper to explore the issues mentioned above in the consideration to prevent any possible disputes due to misunderstandings. #p#分页标题#e#
This article begins by analyzing the first dispute settlement under the TRIPS Agreement, i.e. India-Patent Protection for Pharmaceutical and Agricultural Products (India patent case),[3] in order to understand how the Vienna Convention Rules are applied in WTO disputes arising under the TRIPS Agreement. Based on the preliminary analysis, this article then examines the first copyright-related dispute considered by a panel, i.e. United States-Section 110 (5) of the US Copyright Act (US copyright case),[4] and the first trademark-related dispute brought before the WTO Dispute Settlement Body (DSB), i.e. United States-Section 211 Omnibus Appropriations Act of 1998 (US trademark case),[5] in order to understand how the Paris Convention and the Berne Convention are integrated with the TRIPS Agreement. Finally, this article returns to India patent case again, focusing on Appellate Body’s interpretation of the Article 27 of the TRIPS Agreement. I contrast this interpretation of the TRIPS to the interpretation adopted in Doha Declaration on the TRIPS Agreement and Public Health (Doha Declaration).[6] In a brief conclusion, this article offers some tentative predictions regarding the next phase in implementing the TRIPS Agreement.

I. VIENNA CONVENTION RULES AND THE APPLICATION
FOR DISPUTE SETTLEMENT UNDER THE TRIPS AGREEMENT

The TRIPS Agreement is integral part of the Agreement Establishing the WTO (the WTO Agreement) binding on all Members. Under these agreements, each Member shall ensure the conformity of its laws, regulations and administrative procedures with its obligations under the TRIPS Agreement, otherwise, it will be possible to raise the disputes between/among Members. [7] Any dispute of the TRIPS Agreement shall be settled by DSB in accordance with the Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU).[8] Thus, disputes arising under the TRIPS Agreement will involve on examination into the consistency of a member’s domestic intellectual property laws and the TRIPS Agreement. Therefore, the WTO panels and Appellate Body (AB) must interpret the relevant domestic laws and particular provisions of the TRIPS Agreement. It is the key to settle disputes. For the purpose of this paper, we shall focus on the interpretive issue of the TRIPS Agreement, not domestic laws. #p#分页标题#e#
The TRIPS Agreement, as an international treaty, shall be interpreted under the Vienna Convention Rules,[9] but the DSU dose not expressly provide that these rules shall be applied to the WTO agreements including the TRIPS Agreement. The Vienna Convention Rules have been interpreted as the customary rules of interpretation of public international law by the first report adopted by the DSB.[10] This practice has been followed by the DSB since US gasoline case.
India patent case, as the first dispute arising under the TRIPS Agreement settled by the penal and the AB, gave rise to the issue of interpreting several critical provisions of the TRIPS Agreement and the relevant India domestic laws. The United States complaint that India violated the TRIPS Agreement due to the absence in India of either patent protection for pharmaceutical and agricultural chemical products or formal systems that permit the filling of patent applications for pharmaceutical and agricultural chemical products and that providing exclusive marketing rights in such products. According to the Panel Report, “before examining specific measures in disputes, we first deal with a general interpretative issue, namely standards applicable to interpretation of the TRIPS Agreement. In the first instance, Article 3.2 of the DSU directs panels to clarify the provisions of the covered agreements, including the TRIPS Agreement, ‘in accordance with customary rules of interpretation of public international law’. As a number of recent panel reports and Appellate Body reports have pointed out, customary rules of interpretation of public international law are embodied in the text of the 1969 Vienna Convention on the Law of Treaties (‘Vienna Convention’). Accordingly, the TRIPS Agreement must be interpreted in good faith in light of (i) the ordinary meaning of its terms, (ii) the context and (iii) its object and purpose. In our view, good faith interpretation requires the protection legitimate expectations derived from the protection of intellectual property rights provided for in this Agreement.” [11] It is obvious from Vienna Convention language quoted above that this “view” was the Panel’s interpretation of the objective of the TRIPS Agreement. #p#分页标题#e#
The Report of AB expressly rejected this “view”, holding that: ”The Panel misapplies Article 31 of the Vienna Convention. The Panel misunderstands the concept of legitimate expectations in the context of the customary rules of interpretation of public international law. The legitimate expectations of the parties to a treaty are reflected in the language of the treaty itself. The duty of a treaty interpreter is to examine the words of the treaty to determine the intentions of the parties. This should be done in accordance with the principles of treaty interpretation set out in Article 31 of the Vienna Convention. But these principles of interpretation neither require nor condone the imputation into a treaty of words that are not there or the importation into a treaty of concepts that were not intended.”[12] AB affirmed the proper approach set out by US gasoline case regarding the application of the Vienna Convention Rules for any dispute arises from the WTO Agreements including the TRIPS Agreement, saying that in US gasoline case, “We set out the proper approach to be applied in interpreting the WTO Agreement in accordance with the rules in Article 31 of the Vienna Convention. These rules must be respected with and applied in interpreting the TRIPS Agreement or any other covered agreement. The Panel in this case has created its own interpretative principle, which is consistent with neither the customary rules of interpretation of public international law nor established GATT/WTO practice. Both panels and the Appellate Body must be guided by the rules of treaty interpretation set out in the Vienna convention, and must not add to or diminish rights and obligations provided in the WTO Agreement.”[13]
The panel’s conclusion that the TRIPS Agreement’s objective was the protection of the patentee’s legitimate expectations finds no support in the TRIPS Article 7, entitled objectives, providing that the protection and enforcement of intellectual property rights should contribute to the promotion of technological innovation and to the transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare, and to a balance of rights and obligations. In the November 2001 Doha Decision, WTO Members expressly affirmed that in applying the customary rules of interpretation of public international law, each provision of the TRIPS Agreement shall be read in the light of the object and purpose of the Agreement as expressed, in particular, in its objectives and principles, particularly, including the objectives mentioned above.[14] But, as noted below, unfortunately these objectives and principles were not emphasized at the time of India patent case. #p#分页标题#e#
Technically speaking, the AB emphasized that the principles of interpretation neither require nor condone the imputation into a treaty of words that are not there or the importation into a treaty of concepts that were not intended. It excluded the words “legitimate expectation” imported by the Panel, but did not mention the objectives expressed in Article 7 of the TRIPS Agreement.
Technically speaking again, let us discuss the issue of good faith interpretation. It seems that the AB in India patent case intended to confirm the proper approach to be applied in interpreting the WTO Agreement in accordance with the Vienna Convention Rules, but it did not clarify the meaning of good faith interpretation. Firstly, the AB wanted to delete the concept of “legitimate expectation” used by the panel in respect of the good faith interpretation, saying: ”In developing its interpretative principle, the Panel merges, and thereby confuses, two different concepts from previous GATT practice. One is the concept of protecting the expectations of contracting parties as to the competitive relationship between their products and products of other contracting parties. This is a concept that was developed in the context of violation complaints involving Articles III and XI, brought under Article XXXIII: 1(a), of the GATT 1947. The other is a concept of the protection of the reasonable expectations of contracting parties relating to market access concessions. This is a concept that was developed in the context of non-violation complaints brought under Article XXXIII: 1(b) of the GATT.”[16] It seems that the AB intended to point out that the panel had merged, and therefore totally confused the legal bases to settle disputes of violation and non-violation under Article XXIII 1 (a) and (b) and in particular, to settle disputes of violation complaint under the TRIPS Agreement. It can be understood, according to the AB report, that the concept of “legitimate expectation” shall not be used to settle disputes arising under the TRIPS Agreement during the transitional period. #p#分页标题#e#
Secondly, the AB wanted to clarify the Vienna Convention Rules as the basis of the interpretative principle to settle disputes arising under the TRIPS Agreement. As mentioned above, the AB believed that panel had made two “mistakes”, i.e. the misapplication of Vienna Convention Rules and the misunderstanding of the concept of legitimate expectations in the context of that Rules. While reading the report of the AB in India patent case, we try to find the meaning of the faith good interpretation, because it is the preliminary one of the Vienna Convention Rules,[17] and the key to interpret the relevant provisions of the TRIPS Agreement in this case. But, it is failed
Thirdly, relying on the Article 3.2 of DSU, the AB affirmed that both panels and the AB itself must be guided by the Vienna Convention Rules and must not add or diminish rights and obligations provided in the TRIPS Agreement. That is overall principle of application of Vienna Convention Rules.
Based on this overall principle, maybe, the AB’s indication is that the good faith interpretation must not add to or diminish rights and obligations provided in the WTO Agreement. If it is, it dose distinguish the legislative interpretation from the judicial interpretation. As the judicial body in the WTO system, the AB shall be limited to examine issues of law covered in the panel and legal interpretations developed by the panel.[18] In India patent case, the AB took a restrictive way to define the good faith interpretation as the means to add or diminish nothing in respect of the rights and obligations of the WTO Members. In accordance with Article 9.2 of the WTO Agreement, the Ministerial Conference and the General Council shall have the exclusive authority to adopt interpretations of this Agreement and of the Multilateral trade Agreements. This legislative interpretation could add to or diminish rights and obligations provided in the WTO Agreement. In the case of a legislative interpretation of the TRIPS Agreement, it shall be taken by a three-fourths majority of the Members. #p#分页标题#e#
To date, the AB has not given any single definition of good faith interpretation, but intend to define it case by case. For instance, in the case of Canada-Term of Patent Protection, the Panel Report interpreted Article 70.1 and 70.2 under the Vienna Convention Rules in the way to avoid any conflict between Article 70.1 and 70.2, emphasizing: “this interpretation has the benefit of avoiding any conflict between paragraphs 1 and 2 of Article 70, which is consistent with the concept of presumption against conflict as it exists in public international law.”[19] Even though the panel did not explicitly say that “good faith interpretation” in this case means avoiding inconsistency, it could be understood that it was the good faith interpretation in the view of the Panel. The AB fully affirmed this view.
Of cause, the AB is free to decide whether it shall give the defined meaning of the good faith of interpretation. It could be clarified case by case,[20] but the AB in India patent case offered neither the meaning of the good faith interpretation (at least in the sense of case by case) nor the emphasis of objectives embodied in Article 7 of the TRIPS Agreement.

II. THE INTERPRETATION OF THE INTELLECTUAL PROPERTY CONVENTIONS THROUGH THE DISPUTE SETTLEMENT UNDER THE TRIPS AGREEMENT

As mentioned above, the Paris Convention and the Berne Convention are integrated with the TRIPS Agreement.[21] Both the panels and the AB must interpret the relevant provisions of these Conventions under the Vienna Convention Rules if these provisions are relevant in disputes. Even though the International Court of Justice (ICJ) has the jurisdiction on any disputes under the Paris Convention and the Berne Convention if the country brings the dispute before the Court, [22] no case was brought yet. Therefore, these Conventions have never been interpreted judicially until US copyright case and US trademark case brought before DSB.
US copyright case was the first dispute related to the relevant articles of the Berne Convention. The European Community (EC) complained that the United States had violated Article 9.1 of the TRIPS Agreement integrated with Article 11 (1) (ii) and 11bis (1)(iii) of Berne Convention due to the Section 110 (5) of the United States Copyright Act as amended by the “Fairness in Music Licensing Act” enacted on 27 October 1998, which grants exemptions of music licensing for the homestyle and small business restaurant. It is inconsistent with Article 13 of the TRIPS Agreement. #p#分页标题#e#
The relevant articles in this case are Article 11 (1)(ii), which provides that authors of dramatic, drmatico-musical and musical works shall enjoy the exclusive right of authorizing any communication to the public of the performance of their works, and Article 11 bis (1)(iii), which provides that author of literary and artistic works shall enjoy the exclusive right of authorizing the public communication by loudspeaker or any other analogous instrument transmitting, by signs, sounds or images, the broadcast of the work. The WTO Members shall protect these intellectual property rights in their territories in accordance with Article 9.1 of the TRIPS Agreement.
The Panel Report pointed out that through their incorporation, the substantive rules of the Berne Convention (1971), including the provisions of its 11 (1) (ii) and 11bis (1) (iii), have become part of the TRIPS Agreement and as provisions of that Agreement have to be read as applying to the WTO Members. Based on this standpoint, Panel interpreted Article 11 (1) (ii) and 11 bis (1) (iii) of the Berne Convention under the Vienna Convention Rules as following words:
“In the light of Article 2 of the Berne Convention (1971),’artistic’ works in the meaning of Article 11bis (1) include nondramatic and other music works. Each of the subparagraphs of Article 11bis (1) confers a separate exclusive right; exploitation of a work in a manner covered by any of these subparagraphs requires an authorization by the right holder. For example, the communication to the public of a broadcast creates an additional audience and the right holder is given control over, and may expect remuneration from, this new public performance of his or her work.” [23]
“As in the case of Article 11 bis (1) of the Berne Convention (1971), which concerns broadcasting to the public and communication of a broadcast to the public, the exclusive rights conferred by Article 11 cover public performance; private performance dose not require authorization. Public performance includes performance by any means or process, such as performance by means of recordings (e.g. CDs, castes and videos). It also includes communication to the public of a performance of the work.”[24] #p#分页标题#e#
Regarding the relations between Article 11 (1)(ii) and Article 11bis (1) (iii), Panel interpreted that the rights conferred in Article 11(1)(ii) concern the communication to the public of performances of works in general. Article 11 bis (1) (iii) is a specific rule conferring exclusive rights concerning the public communication by louderspeaker or any other analogous instrument transmitting, by signs, sound or images, the broadcast of a work.
In this case, there were no disagreements between EC and US on the binding issue of the Berne Convention. The disagreement was the different interpretations of the Berne Convention. The Panel interpretation of the Berne Convention was the precondition for application of the TRIPS Agreement. But, it is very important to understand that the significance of this interpretation would be far more beyond the dispute settlement itself under the TRIPS Agreement. It was the first time that the Berne Convention had been interpreted judicially in the international level. In this way, the WTO, as a non-United Nations organization, has taken over the jurisdiction of ICJ, to interpret the basic intellectual property conventions under the administrative jurisdiction of the World Intellectual Property Organization (WIPO), which has been one of 16 specialized agencies of the United Nations system of organization since 1974.[25] It is a landmark of development of international protection for intellectual property rights.
There are two significances of this landmark from the perspectives of international laws. The first is the relationship between the WTO and WIPO form the perspective of international organization. The WTO is an international trade organization,[26] in the Members’ hope, to harmonize the trade systems around the world. The trade systems include the systems of trade in good traditionally and then, of trade in service and of trade-related intellectual property. It is now on the great debate whether the WTO shall include more trade-related systems.[27] Whatever the future of the WTO system will be, we must recognize that there are significant existing overlaps of jurisdiction of the WTO and WIPO, which is a very important development of international organizations. People would think about underlying philosophy of international arrangements of institutions. There were no institutional arrangements of dispute settlement between/among contracting states under the Berne Convention and the Paris convention when they were concluded in 1880s. After establishment of WIPO in 1967 (and then, WIPO actually became the specialize organization of the UN system), it was added that the IJC would have jurisdiction on any disputes under the Berne Convention and the Paris Convention. But, the jurisdiction of IJC dependents on the UN Members’ consent. It is curious that no such consent yet. It demonstrates that no judicial enforcement of the Berne Convention and the Paris Convention (in the matter of fact, of all intellectual property conventions under administration of WIPO) has been existed until US copyright case. That is one of reasons why the developed countries wanted to include the Bern Convention and the Paris Convention into the WTO system. But, it is also curious that the first adopted panel report to interpret the Berne Convention concerns the dispute between US and EU instead of developed members and developing members. Taking this lesson, people need to consider the future of WTO including more trade-related issues and subsequently, more overlaps of different international organizations and more jurisdictions of the WTO/DSB. Shall we have a “United Nations of Economic Organization”, or an “International Trade Court of Justice ”? That is a real global institutional arrangement.[28] #p#分页标题#e#
The second significance is the relationship between the WTO agreements and other treaties from the perspective of international treaty. As mentioned above, the TRIPS Agreement is a unique treaty integrating the four intellectual property treaties, mainly, the Paris Convention and the Berne Convention. These intellectual property conventions have no provisions regarding the treaty interpretation. But, they are now interpreted according to Vienna Convention under the WTO/DSU, e.g. in US copyright case. Is it the intention of the Berne Convention? Assuming the further linkage with more trade-related issues, there will be more international convention subjected to the WTO/DSB review and interpretation in the process of dispute settlement. What shall be the customary interpretative rules of international treaty laws regarding this issue?
As this report was not appealed, the AB did not have opportunity to consider the panel’s interpretation of the Berne Convention. US trademark case was brought to AB for review. It was the first judicial interpretation of the Paris Convention. Interestingly, AB partially reversed the Panel interpretation of the Paris Convention.
In essential, this case gave rise to two interpretive issues. Let us take a brief look of the first issue. US trademark case is focused on the Section 211 of the United States Omnibus Appropriations Act of 1998 (OAA), which deals with trademarks, trade names, and commercial names that are the same as or substantially similar to trademarks, trade names or commercial names that were used in connection with businesses or assets that were confiscated by the Cuban Government on or after 1 January 1959. According to Section 211 of OAA, no transaction or payment shall be authorized or approved by the Office of Foreign Assets Control of the US Treasury Department (OFAC) with respect to such trademark, trade name, or commercial name unless the original owner of such trademark, trade name, or commercial name, or the bona fide successor-in-interest has expressly consented. Accordingly, part 515 of title 31 of the United States Code of Federal Regulation (Section 515 of CFR) provides that such transaction includes the registration and renewal of trademark in the United States Patent and Trademark Office (PTO). In sense, such trademark could not be registered or renewed without the expressed consent of the original owner of such trademark even though the trademark holder in the country of origin has duly registered it. EC alleges that Section 211 of OAA is inconsistent with Article 2.1 of the TRIPS Agreement in conjunction with Article 6quinquies A (1) of the Paris Convention and Article 15.1 of the TRIPS Agreement. #p#分页标题#e#
Thus, the first issue is the meaning of Article 6quinquies (A) (1) of the Paris Convention as incorporated into the TRIPS Agreement, which provides that every trademark duly registered in the country of origin shall be accepted for filing and protected as is in the other countries of the Union, subject to the reservations indicated in this Article.
Under Vienna Convention Rules, Panel interpreted Article 6quinquies A (1) of the Paris Convention as following words:
“There are essentially two conditions that must be fulfilled before ‘every trademark’ is to be accepted for filing and protected ‘as is’ by other Members. The first condition is that the trademark has to be ‘duly registered’ and the second condition is that the trademark has to be duly registered ‘ in the country of origin‘. Thus, the benefits under Article 6quinquies A (1) can be claimed only if there is a registration in the country of origin. …… Upon meeting these conditions, ‘every trademark’ is to be accepted for filing and protected ‘as is’ (‘telle quell’in French) by other Members, subject to the ground for denying registration as trademarks as set out in Article 6quinques B. …… The ordinary meaning of the term ‘as is ’is defined as ‘in the existing state, things being what they are ’.”[29]
The United States argues that Article 6quinques A (1) dose not prohibit Members from denying the registration and renewal of the trademark which has been accepted for filing and protection as is by other Members if the foreign applicant is not the original or true owner of the trademark under US laws. The United States laws are the governing laws to determine the ownership of trademark.
The Panel agreed with the United States’ argument, saying: ”Article 2 of the Paris Convention lays down the national treatment principle. This is one of the foundations of the Convention. Article 6quinques goes beyond national treatment in that it prescribes that the authorities accept for filing and protection trademark which according to rules applicable in their own country they might be entitled to refuse. In that regard, Article 6quinques has correctly been described as a ‘national treatment plus’ provision. If this provision were to be interpreted as covering every trademark in all its aspects, the national treatment plus provision would acquire such importance as to make the fundamental rule of Article 2 virtually meaningless.”[30] AB confirmed this interpretation of Panel Report and made it clear that the Paris Convention would not exclude Members from applying their domestic laws for national treatment on the registration of trademark, including the national treatment on determining trademark ownership. #p#分页标题#e#
Now, let us turn to the second issue, interpretation of Article 8 of Paris Convention, which provides that a trade name shall be protected in all the countries of the Union without the obligations of filling or registration, whether or not it forms part of a trademark. The Section 211 of OAA is related to trade name. There were similar disputes on the ownership of trade name between EC and US, but both parties agreed that trade name should be included in the categories of intellectual property rights (IPR) under the TRIPS Agreement. It is interesting that Panel was obligated, in this case, to interpret the categories of IPR and concluded that trade name would not be included in the categories of IPR under the TRIPS Agreement. Panel said: “We interpret the term ‘intellectual property’ and ‘intellectual property rights’ with reference to the definition of ‘intellectual property’ in Article 1.2 of the TRIPS Agreement. The textual reading of Article 1.2 is that it establishes an inclusive definition and this is confirmed by the words ‘all categories’; the word ’all’ indicates that this is an exhaustive list. …… We consider that correct interpretation to be that there are no obligations under those Articles in relation to categories of intellectual property not set forth in Article 1.2, e.g. trade name, consistent with Article 31 of the Vienna convention.”[31] This interpretation was actually not correct and completely reversed by AB.
Obviously, the second issue concerns the scope of intellectual property rights under Article 8 of the Paris Convention incorporated into the TRIPS Agreement. In comparison with the first issue, it seems that the second one is more important, because it is the first case to clarify the bound scope of the TRIPS Agreement since it was entered into force. AB emphasized, “One of the corollaries of the ‘general rule of interpretation’ in the Vienna Convention is that interpretation must give meaning and effect to all the terms of a treaty.”[32] The trade name has been neither expressly excluded from any provisions of the TRIPS Agreement nor definitively delimited from any recording of history of the Uruguay Round Negotiation. It is the only legal base to include trade name in the TRIPS Agreement that the Article 2.1 of TRIPS Agreement provides that substantial standards of the Paris Convention are integral parts of this Agreement. It is no doubt the Article 8 of Paris Convention has been integrated into the TRIPS Agreement; therefore, the trade name shall be one of categories within the scope of the TRIPS Agreement. The reversal opinion of AB in US trademark case makes it very clear that the substantial standards of the Paris Convention have been completely integrated with the TRIPS Agreement. #p#分页标题#e#
As a summary of discussion of this section, we understand that the Paris Convention and the Berne Convention are essentially integrated with the TRIPS Agreement and shall be interpreted under the Vienna Convention. China must understand its scope of obligations under the TRIPS Agreement according to the interpretations of the WTO panels and/or the AB. It seems that there are no issues concerning the tension between developed and developing countries in US copyright case and US trademark case. But, we must concern the future development linking more trade-related issues with the WTO.

III.THE INTERPRETATION OF KEY ARTICLES OF THE TRIPS AGREEMENT

The TRIPS Agreement is a new treaty from many perspectives and needs to be interpreted. As mention above, there are two methods of interpretations within the framework of the WTO, i.e. legislative interpretation and judicial interpretation. As the conclusion of the recent WTO Ministerial Meeting in Doha, the parties adopted the so-called Doha Decision, which can be considered as a legislative interpretation of the TRIPS Agreement, particularly, in regard of the objectives and principles.[33] The AB affirmed, in India patent case, that any dispute settlement under the TRIPS Agreement should be subjected to the judicial interpretation in the sense to add to or diminish nothing about rights and obligations provided in the TRIPS Agreement. The Vienna Convention Rules can be only applied to judicial interpretation. But sometime, it is incomplete to understand the TRIPS Agreement from judicial interpretation only. Therefore, we must consider two methods of interpretation of the TRIPS Agreement.
Let us take an example to check this point. The Article 27 of the TRIPS Agreement is a very important substantial standard to protect patent rights in consideration to keep balance between rights holders and public interests. It is a compromise among different patent systems in the world, and also between developed countries and developing countries. It seems that developed countries dominated the course of the drafting of Article 27, including the relevant provisions of the TRIPS Agreement, i.e. Article 65, Article 70.8 and 70.9.[34] The India patent case interpreted all of these provisions together as an integrated system of patent protection for pharmaceutical and agricultural chemical products in the way that disadvantages the developing and least-developed countries. That is why Doha Decision calls for taking care of public health in consideration of protection of interests of the developing and least-developed countries. #p#分页标题#e#
It is very interesting to review the judicial interpretation in India patent case in the hope to know what was the underlying legal reasoning of both Panel and AB Reports in this case.
As mentioned above, Panel in India patent case misapplied Vienna Convention Rules and misunderstood the concept of legitimate expectation in the context of customary public international law. But, the AB confirmed that Panel was correct to interpret Article 27.1, Article 65, Article 70.8 and 70.9. Therefore, the AB substantially affirmed the Panel interpretation of the relevant TRIPS articles. It seems very strange legal reasoning because of the conflict between start point and conclusion. Let us take a review of this “strange” legal reasoning.
Based on two mistakes as the start point, Panel in India patent case went to interpret the substantial standards of patent protection for pharmaceutical and agricultural chemical products as following steps:
Firstly, Article 27.1 provides inventors with the wider coverage of patentable subject matter.[35] There are no limitations of patent protection in all fields of technology. Obviously, it is the philosophy of Thomas Jefferson, the founder of the US patent system.[36] It is correct.
Secondly, Article 65.2 provides developing countries (India is a developing country) with a transitional period of five years to implement the TRIPS Agreement until 1 January 2000.[37] But, it dose not apply to the patent protection for pharmaceutical and agricultural chemical products, because the TRIPS Agreement grants so called “mailbox” for the rights holders of patent for pharmaceutical and agricultural chemical products. No one knew what was the meaning of “mailbox”, and even no one heard this term until India patent case.
Thirdly, as Panel interpretation, “mailbox” was embodied in Article 70.8 and 70.9. [38] “The United States claims: ”India has failed to fulfill its obligations under this paragraph by not establishing a valid system for receiving ‘mailbox’ applications. In this regard, we note that the only obligation India currently assume under this paragraph is that of subparagraph (a), effective date of which is ‘date of entry into force of the WTO Agreement’, i.e., I January 1995. ”[39] Thus, Article 70.8 (a) is the most relevant to this case. Panel Report gave us a very elegant interpretation under the Vienna Convention Rules, which said:” Subparagraph (a) of Article 70.8, like all other provisions of the covered agreements, must be interpreted in good faith in light of (i) the ordinary meaning of its terms;(ii) the context; and (iii) its object and purpose, following the rules set out in Article 31 (1) of the Vienna Convention.” [40] #p#分页标题#e#
Focusing on the object and purpose of Article 70.8 (a), Panel said:” There seems to be common understanding between the parties to the dispute regarding the object and purpose of subparagraph (a). India concedes that the purpose of subparagraph (a) is to ‘ensure that each patent applicant obtains a date of filing on the basis of which patent protection [can] be granted as from the date on which Article 27 applies and that exclusive marketing rights [can] be granted to products at the point at which they are eligible for such rights’ (emphasis added). We affirm this view. The object and purpose of Article 70.8 (a) can be derived from the structure of the TRIPS Agreement. Article 27 requires that patents be made available in all fields of technology, subject to certain narrow exceptions. Article 65 provides for transitional periods for developing countries: in general five years from the entry into force of the WTO Agreement, i.e. 1 January 2000, and an additional five years to provides for product patents in areas of technology not so patentable as of 1 January 2002. Thus, in such areas of technology, developing countries are not required to provide product patent protection until 1 January 2005. However, these transitional provisions are not applicable to Article 70.8, which ensure that, if product patent protection is not already available for pharmaceutical and agricultural chemical product inventions, a means must be in place as of 1 January 1995 which allows for the entitlement to file patent applications for such inventions and the allocation of filing and priority dates to them so that the novelty of the inventions in question and the priority of the application claiming their protection can be preserved for the purpose of determining their eligibility for protection by a patent at the time that product patent protection will be available for these inventions, i.e. at the latest after the expiry of the transitional period. ”[41] That is the exact meanings of the “mailbox”. It is a perfect interpretation of “mailbox” embodied in Article 70.8 (a), but it is a perfect in the sense of technical interpretation of treaty. The AB affirmed it from the same attitude of technical way in favour of developed countries.[42] The “mailbox” was designed as a safeguard for the pharmaceutical and agrochemical patentees of the developed countries to obtain the exclusive marketing rights in the developing countries during the transitional period. It was no patent examination for “mailbox” application before January 1,2000 under Article 70.8 and 70.9 of the TRIPS Agreement. The developing countries had to grant the exclusive marketing rights for “mailbox” applicants if they had obtained their patent and approval for market sale in home countries (mostly in the developed countries). The developing countries needs more transitional period to implement the TRIPS Agreement, but they had no such period in the essential field. That was why India challenged the “mailbox” system, but it was failed due to both the existing provisions of the TRIPS Agreement and the underlying attitude of the panel and the AB’s interpretation. #p#分页标题#e#
In contrast, Doha Decision changes this attitude under the policy consideration, and in particular, concerns the issue of patent protection for pharmaceutical product. It declares:” We agree that the TRIPS Agreement dose not and should not prevent members from taking measure to protect public health. Accordingly, while reiterating our commitment to the TRIPS Agreement, we affirm that the Agreement can and should be interpreted and implemented in the manner supportive of WTO members’ right to protect public health and, in particular, to promote access to medicines for all.”[43] It grants the developing and least-developed countries more benefits including the rights to grant compulsory licenses and the freedom to determine the grounds upon which such licenses are granted, the longer transitional period for least-developed countries to be waived from their obligations to offer patent protection for pharmaceutical product. The significance of Doha Decision is not contained in the TRIPS Agreement itself. It takes the attitude to balance the interests of developed countries and that of developing countries.


CONCLUSION

The DSB cannot adopt any report of dispute settlement including any statement such as that in Doha Decision, because it is not the decision-making body. It is the “constitutional” function for the DSB to serves to preserve the rights and obligations of Members under the covered agreements, and to clarify the existing provisions of those agreements in accordance with customary rules of interpretation of public international law. Recommendation and rulings of the DSB cannot add to or diminish the rights and obligations provided in the covered agreements.
Thus, the WTO panels and AB under the DSB are authorized to interpret the provisions of the WTO agreements and the integrated international treaties such as intellectual property conventions discussed in this paper. The interpretation of penal and AB shall be limited as judicial one. In this sense (in the term of this paper, perhaps, in the technical sense), it is correct for Panel and AB in India patent case to interpret Article 27, Article 70.8 and 70.9, and in addition, correct for AB to reverse the Panel interpretation of “legitimate expectation”. It is also correct for DSB to adopt other reports under the TRIPS Agreement, such as US copyright case and US trademark case. #p#分页标题#e#
We must study these cases in order to understand precise Chinese obligations and rights to implement the TRIPS Agreement. That is the meaningful work for Chinese scholars to study the way set out by the WTO panel and AB under the Vienna Convention Rules.
It can be concluded that the dispute settlement cannot change the WTO laws, but it can clarify the laws according the Vienna Convention Rules. No matter whatever you like or dislike, the WTO members must comply with the laws and recommendation of DSB if them have been entered into force or adopted. That is the restrictive way, or in term of technical way, to implement the TRIPS Agreement.
But, we must understand the underlying legal reasoning or policy (attitude), in the term of objective and principle, of the TRIPS Agreement. It is particularly important for the WTO panels and AB to interpret the TRIPS Agreement according to the new rules of interpretation set out by Doha Decision. We need to watch the next phase how the WTO panels and the AB settle disputes under the TRIPS Agreement if the disputes are related to the balance between developed countries and developing countries. It is not the conclusion of this paper, but an expectation.
It is still unclear whether the WTO panels and the AB shall be bound by Doha Decision to settle disputes under the TRIPS Agreement. It was no indication in the recent AB Report of US trademark case, and most probably, it did not need to mention Doha Decision, because this case was not the disputes settlement between the developing and developed countries. It will also raise the more important issue of legislative interpretation under the Article 9.2 of the WTO Agreement. In the sense of judicial interpretation under the Article 3.2 of DSU, Doha Decision could be regarded as a legislative interpretation under the WTO decision-making process. We need to observe the next dispute settlement under the TRIPS Agreement if it is relevant to Doha Decision.

Last revision on October 17, 2002

﹡Professor of Law and Director, the Research Center of International Law and Intellectual Property, Fudan University School of Law, Fudan University, LL.D. (2002); Fudan University LL.M.(1986); The Institution of Political Science and Law of East China LL.B.(1983). University of Michigan, Fulbright Research Scholar (1996-1997); George Washington University, Visiting Scholar (1993-1994); Columbia University, Visiting Scholar (1989-1990). Many thanks to Professor Jeffery L. Dunoff for very insightful comments and careful wording checks on an early draft of this paper, and to Temple University and Tsinghua University for supporting me to attend this Roundtable meeting. #p#分页标题#e#

Notes
[1]C.f. Marco C.E. F. Bronckers, “More Power to the WTO ?”Journal of International Economic Law (March 2001) No.1, p.47; Jeffrey L. Dunoff, “The WTO in Transition: of Constituents, Competence and Coherence” The George Washington International Law Review. Vol. 33, No. 3 & 4 (2001), pp.988-991; “Symposium: The Boundaries of the WTO” American Journal of International Law Vol. 96 (January 2002), No.1.
[2]About these intellectual property conventions, c.f. The First Twenty Five Years of the World Intellectual Property Organization from 1967 to 1992,Geneva: WIPO, 1992. About the TRIPS Agreement, c.f. Daniel Gervais, The TRIPS Agreement: Drafting History and Analysis, London: Sweet & Maxwell, 1998; c.f. Intellectual Property and International Trade: the TRIPS Agreement,(Editors: Carlos M Correa and Abdulqawi A. Yusuf), The Hague: Kluwer Law International, 1998. In the view of editors of Intellectual Property and International Trade: the TRIPS Agreement, “the TRIPS Agreement is the most far-reaching and comprehensive legal regime ever concluded at the multilateral level in the area of intellectual property rights (IPRs).”(p.xvii); c.f.Zhang Naigen, Intellectual Property Law in International Trade (GUOJI MAOYI DE ZHISHI CHANQUAN FA) Shanghai: Fudan University Press, 1999.
[3] Report of the Panel (WT/DS 50/R, 5 September 1997), Report of Appellate Body (WT/DS 50/AB/R, 19 December 1997).
[4] Report of the Panel (WT/DS160/11, 22 November 2000).
[5]Report of the Panel (WT/DS176/R, 6 August 2001), Report of Appellate Body (WT/DS176/AB/R, 2 January 2002).
[6]Declaration on the TRIPS Agreement and Public Health, WT/MN (01)/DEC/2, Adopted on 14 November 2001.C.f.Carmen Otero Garcia-Castrillon, “An Approach to the WTO Ministeial Declaration on the TRIPS Agreement and Public Health”, Journal of International Economic Law (March 2002) No.1, p212; Frederick M.Abbott, “The Doha Declaration on the TRIPS Agreement and Public Health: Lighting a Dark Corner at the WTO”, Journal of International Economic Law, (June 2002) No.2, p.287. #p#分页标题#e#
[7]The Article 2.2 of the Agreement Establishing the WTO (WTO Agreement) provides that the agreements and associated legal instruments included in Annexes 1.2.3 (hereinafter referred to as “Multilateral Trade Agreements”) are integral parts of this Agreement, biding on all Members. The Article 16.4 of the WTO Agreement provides that each Member shall ensure the conformity of its laws, regulations and administrative procedures with its obligations as provided in the annexed Agreement.
[8]The Article 1.1 of USU provides that the rules and procedures of this Understanding shall apply to disputes brought pursuant to the consultation and dispute settlement provisions of the agreements listed in Appendix 1 to this Understanding. But, Article 64.2 of the TRIPS Agreement provides that subparagraphs 1(b) and 1(c) of Article XXIII of GATT 1994 shall not apply to the settlement disputes under this Agreement for a period of five years from the date of entry into force of the WTO Agreement, i.e. before January 1, 2000. This transitional period will be extended to the date by the end of 2003 according the Decision on Implementation-Related Issues and Concerns made by the Fourth WTO Ministerial Conference, which said that the TRIPS Council is directed to continue its examination of the scope and modalities for complaints of the types provided for under subparagraphs 1(b) and 1(c) of Article XXIII of GATT 1994 and make recommendations to the Fifth Session of the Ministerial Conference. It is agreed that, in the meantime, members will not initiate such complaints under the TRIPS Agreement.
[9]It includes the Articles 31, 32 and 33 of the Vienna Convention. C.f. Sir Ian Sinclair, The Vienna Convention on the Law of Treaties, Manchester University Press, 1973, Chapter V Interpretation of Treaty.
[10]The Article 3.2 of the DSU provides that the Members recognize that it serves to preserve the rights and obligations of Members under the covered agreements, and to clarify the existing provisions of those agreements in accordance with customary rules of interpretation of public international law. It was interpreted that the Convention Rules could be regarded as the customary rules of public international law by the first penal report adopted by the DSB. See United States-Standards for Reformulated and Conventional Gasoline (US-Gasoline case, WT/DS2/R, 29 January 1996). “In resolving this interpretative issue [whether the p, roducts are “like”] the Panel referred, in conformity with Article 3.2 of the Understanding on Rules and Procedures Governing the Settlement of Disputes, to the Vienna Convention on the Law of Treaties, which states in Article 31 that ”a treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose”(at Para.6.7). #p#分页标题#e#
[11] Supra note 1, the Report of Panel, at para.7.18.
[12] Supra note 1, Report of AB, at para.45
[13]Id., at para.46.
[14]Supra note 4.
[15] It is also ignored by some distinguished experts in the field, such as Mr.Abdulqawi A. Yusuf (Legal Adviser and Director of Legal Service, United Nations Industrial Development Organization) believed that:” the last phrase (i.e. in a manner conducive to social and economic welfare, and to a balance of rights and obligations) is rather ambiguous reference to the concept of ‘intellectual property bargain’ which has traditionally provided a philosophical underpinning for the enactment of national legislation on IPRs .”Supra note 1, Intellectual Property and International Trade: the TRIPS Agreement, p.12.
[16] Supra note 1, the Report of AB, at 36.
[17]C.f. spura note 9, Sir Ian Sinclair, The Vienna Convention on the Law of Treaties, which believes that the principle of good faith underlies the most fundamental of all the norms of treaty law – namely, the rule pacta sunt servanda, (p.119).
[18]DSU 17.6.
[19]Canada-Term of Patent Protection, Report of the Panel (WT/DS170/R, 5May 2000), at para.6.45.
[20]As explained by Sir Ian Sinclair, the principle of good faith applies to the entire process of interpretation, including the examination of the text, the context and subsequent practice. In addition, the result obtained must be appreciated in good faith – that is to say, good faith as an objective criterion in the light of particular circumstances, not good faith as an abstract notion. Supra note 9, Sir Ian Sinclair, The Vienna Convention on the Law of Treaties,p.120.
[21]Article 2.1 of the TRIPS Agreement provides that in respect of Parts II, III and IV of this Agreement, Members shall comply with Article 19, of the Paris Convention (1967). Article 9.1 provides that Members shall comply with Articles 1 through 21 of the Berne Convention (1971) and the Appendix thereto. However, Members shall not have rights or obligations under this Agreement in respect of the rights conferred under Article 6 bis of that Convention or of the rights derived therefrom. #p#分页标题#e#
[22]Article 28 of Paris Convention and Article 33 of Berne Convention, separately, provides that any dispute between two or more countries of the Union concerning the interpretation or application
of this Convention, not settled by Negotiation, may, by any one of the countries concerned, be brought before the International Court of Justice by application in conformity with the Statute of the Court, unless the countries concerned agree on some other method of settlement.

[23]Supra note 2, at para.6.24.
[24]Id., at para.6.25.
[25]C.f.supra, note 2, The First Twenty Five Years of the World Intellectual Property Organization from 1967 to 1992.
[26]Originally, the United Nation intended to establish the International Trade Organization (ITO) as international Monetary Fund (IMF), but it was failed due to the United States Congress did ratify the Havana Charter even though U.S. drafted the proposed Chapter. C.f. John H. Jackson, World Trading System, 2nd, ed., The MIT Press, 1997. Also, c.f. Raj Bhala and Kevin Kennedy, World Trade Law, LEXIS Law Publishing, 1998, which said that this failure was due to” the
neo-isolationist of U.S. Senate”. (p.2)
[27]C.f. supra note 1, “Symposium: The Boundaries of the WTO”. John. H. Jackson said: “the problem of linkage between ‘nontrade ’subjects and the World Trade Organization is certainly one of the most pressing and challenging policy puzzles for international economic relations and institutions today.”American Journal of International Law Vol. 96 (January 2002), No.1.,p.118.
[28]It needs thinking not only from the political perspective, but also the Law & Economics. C.f. Jeffrey L. Dunoff & Joel P. Trachtman,”Economic Analysis of International Law”, The Yale Journal of International Law, Vol.24, (Winter 1999), No. 1, pp.1-59.
[29]Supra note 3, Report of Panel, at para.8.75,8.76.
[30]Id., at 8.80.
[31]Id., at 8.26.
[32]Supra. Note 3, the report of AB, at 338. #p#分页标题#e#
[33]The Article 9.2 of the WTO Agreement provides that the Ministerial Conference and the General Council shall have the exclusive authority to adopt interpretations of this Agreement and of the Multilateral Trade Agreements. Some scholars believe that Doha Decision is a “political declaration”. C.f. Steve Charnovitz, “The Legal Status of the Doha Declarations”, Journal of International Economic Law, (March, 2002) No.1, p.207. Some scholars think that it constitutes “supplementary means of interpretation”. C.f. supra. Note 6, Frederick M.Abbott, “The Doha Declaration on the TRIPS Agreement and Public Health: Lighting a Dark Corner at the WTO”, p.212. I disagree with these opinions.
[34]C.f. supra. Note 2, Daniel Gervais, The TRIPS Agreement: Drafting History and Analysis.
[35]Article 27.1 provides that subject to the provisions of paragraphs 2 and 3, patent shall be available for any inventions, whether products or processes, in all fields of technology, provided that they are new, involve an inventive step and are capable of industrial application.
[36]C.f.Zhang Naigen, Elected Cases Analysis of Patent Law in the United States (MAIGUO ZHUANLI FA PANLI XUANXI) Beijing: The Press of China University of Political Science and Law,1995,p.76..
[37]Article 65.2 provides that a developing country Member is entitled to delay for a further period of four years (4 plus 1) the date of application, as defined in paragraph 1, of the provisions of this Agreement other than Article 3,4 and 5.
[38]Article 70.8. Provides that where a Member dose not make available as of the date of entry into force of the WTO Agreement patent protection for pharmaceutical and agricultural chemical products commensurate with its obligations under Article 27, that Member shall:
(a) notwithstanding the provisions of Part VI, provide as from the date of entry into force of the WTO Agreement a means by which applications for patents for such inventions can be filed; #p#分页标题#e#
(b) apply to these applications, as of the date of application of this Agreement, the criteria for patentability as laid down in this Agreement as if those criteria were being applied on the date of filing in that Member or, where priority is available and claimed, the priority date of the application; and
(c) provide patent protection in accordance with this Agreement as from the grant of the patent and for the remainder of the patent term, counted from the filing date in accordance with Article 33 of this Agreement, for those of these applications that meet the criteria for protection referred to in subparagraph (b).
Article 70.9 provides that where a product is the subject of a patent application in a Member in accordance with paragraph 8 (a), exclusive marketing rights shall be granted, notwithstanding the provisions of Part VI for a period of five years after obtaining marketing approval in that Member or until a product patent is granted or rejected in that Member, whichever period is shorter, provided that, subsequent to the entry into force of the WTO Agreement, a patent application has been filed and a patent granted for that product in another Member and marketing approval obtained in such other Member.
[39]Supra. note 1, at para.7.23.
[40]Id., at para.7.24.
[41]Id., at para.7.27.
[42] Professor J.H. Reichman said that t is the safeguard for the pharmaceutical and agrochemical patentees in the developed countries. C.f., spura, note 1, Intellectual Property and International Trade: the TRIPS Agreement, p.32.
[43]Supra note 4.



【Exprss】
Notes
[1]C.f. Marco C.E. F. Bronckers, “More Power to the WTO ?”Journal of International Economic Law (March 2001) No.1, p.47; Jeffrey L. Dunoff, “The WTO in Transition: of Constituents, Competence and Coherence” The George Washington International Law Review. Vol. 33, No. 3 & 4 (2001), pp.988-991; “Symposium: The Boundaries of the WTO” American Journal of International Law Vol. 96 (January 2002), No.1. #p#分页标题#e#
[2]About these intellectual property conventions, c.f. The First Twenty Five Years of the World Intellectual Property Organization from 1967 to 1992,Geneva: WIPO, 1992. About the TRIPS Agreement, c.f. Daniel Gervais, The TRIPS Agreement: Drafting History and Analysis, London: Sweet & Maxwell, 1998; c.f. Intellectual Property and International Trade: the TRIPS Agreement,(Editors: Carlos M Correa and Abdulqawi A. Yusuf), The Hague: Kluwer Law International, 1998. In the view of editors of Intellectual Property and International Trade: the TRIPS Agreement, “the TRIPS Agreement is the most far-reaching and comprehensive legal regime ever concluded at the multilateral level in the area of intellectual property rights (IPRs).”(p.xvii); c.f.Zhang Naigen, Intellectual Property Law in International Trade (GUOJI MAOYI DE ZHISHI CHANQUAN FA) Shanghai: Fudan University Press, 1999.
[3] Report of the Panel (WT/DS 50/R, 5 September 1997), Report of Appellate Body (WT/DS 50/AB/R, 19 December 1997).
[4] Report of the Panel (WT/DS160/11, 22 November 2000).
[5]Report of the Panel (WT/DS176/R, 6 August 2001), Report of Appellate Body (WT/DS176/AB/R, 2 January 2002).
[6]Declaration on the TRIPS Agreement and Public Health, WT/MN (01)/DEC/2, Adopted on 14 November 2001.C.f.Carmen Otero Garcia-Castrillon, “An Approach to the WTO Ministeial Declaration on the TRIPS Agreement and Public Health”, Journal of International Economic Law (March 2002) No.1, p212; Frederick M.Abbott, “The Doha Declaration on the TRIPS Agreement and Public Health: Lighting a Dark Corner at the WTO”, Journal of International Economic Law, (June 2002) No.2, p.287.
[7]The Article 2.2 of the Agreement Establishing the WTO (WTO Agreement) provides that the agreements and associated legal instruments included in Annexes 1.2.3 (hereinafter referred to as “Multilateral Trade Agreements”) are integral parts of this Agreement, biding on all Members. The Article 16.4 of the WTO Agreement provides that each Member shall ensure the conformity of its laws, regulations and administrative procedures with its obligations as provided in the annexed Agreement. #p#分页标题#e#
[8]The Article 1.1 of USU provides that the rules and procedures of this Understanding shall apply to disputes brought pursuant to the consultation and dispute settlement provisions of the agreements listed in Appendix 1 to this Understanding. But, Article 64.2 of the TRIPS Agreement provides that subparagraphs 1(b) and 1(c) of Article XXIII of GATT 1994 shall not apply to the settlement disputes under this Agreement for a period of five years from the date of entry into force of the WTO Agreement, i.e. before January 1, 2000. This transitional period will be extended to the date by the end of 2003 according the Decision on Implementation-Related Issues and Concerns made by the Fourth WTO Ministerial Conference, which said that the TRIPS Council is directed to continue its examination of the scope and modalities for complaints of the types provided for under subparagraphs 1(b) and 1(c) of Article XXIII of GATT 1994 and make recommendations to the Fifth Session of the Ministerial Conference. It is agreed that, in the meantime, members will not initiate such complaints under the TRIPS Agreement.
[9]It includes the Articles 31, 32 and 33 of the Vienna Convention. C.f. Sir Ian Sinclair, The Vienna Convention on the Law of Treaties, Manchester University Press, 1973, Chapter V Interpretation of Treaty.
[10]The Article 3.2 of the DSU provides that the Members recognize that it serves to preserve the rights and obligations of Members under the covered agreements, and to clarify the existing provisions of those agreements in accordance with customary rules of interpretation of public international law. It was interpreted that the Convention Rules could be regarded as the customary rules of public international law by the first penal report adopted by the DSB. See United States-Standards for Reformulated and Conventional Gasoline (US-Gasoline case, WT/DS2/R, 29 January 1996). “In resolving this interpretative issue [whether the products are “like”] the Panel referred, in conformity with Article 3.2 of the Understanding on Rules and Procedures Governing the Settlement of Disputes, to the Vienna Convention on the Law of Treaties, which states in Article 31 that ”a treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose”(at Para.6.7). #p#分页标题#e#
[11] Supra note 1, the Report of Panel, at para.7.18.
[12] Supra note 1, Report of AB, at para.45
[13]Id., at para.46.
[14]Supra note 4.
[15] It is also ignored by some distinguished experts in the field, such as Mr.Abdulqawi A. Yusuf (Legal Adviser and Director of Legal Service, United Nations Industrial Development Organization) believed that:” the last phrase (i.e. in a manner conducive to social and economic welfare, and to a balance of rights and obligations) is rather ambiguous reference to the concept of ‘intellectual property bargain’ which has traditionally provided a philosophical underpinning for the enactment of national legislation on IPRs .”Supra note 1, Intellectual Property and International Trade: the TRIPS Agreement, p.12.
[16] Supra note 1, the Report of AB, at 36.
[17]C.f. spura note 9, Sir Ian Sinclair, The Vienna Convention on the Law of Treaties, which believes that the principle of good faith underlies the most fundamental of all the norms of treaty law – namely, the rule pacta sunt servanda, (p.119).
[18]DSU 17.6.
[19]Canada-Term of Patent Protection, Report of the Panel (WT/DS170/R, 5May 2000), at para.6.45.
[20]As explained by Sir Ian Sinclair, the principle of good faith applies to the entire process of interpretation, including the examination of the text, the context and subsequent practice. In addition, the result obtained must be appreciated in good faith – that is to say, good faith as an objective criterion in the light of particular circumstances, not good faith as an abstract notion. Supra note 9, Sir Ian Sinclair, The Vienna Convention on the Law of Treaties,p.120.
[21]Article 2.1 of the TRIPS Agreement provides that in respect of Parts II, III and IV of this Agreement, Members shall comply with Article 19, of the Paris Convention (1967). Article 9.1 provides that Members shall comply with Articles 1 through 21 of the Berne Convention (1971) and the Appendix thereto. However, Members shall not have rights or obligations under this Agreement in respect of the rights conferred under Article 6 bis of that Convention or of the rights derived therefrom. #p#分页标题#e#
[22]Article 28 of Paris Convention and Article 33 of Berne Convention, separately, provides that any dispute between two or more countries of the Union concerning the interpretation or application
of this Convention, not settled by Negotiation, may, by any one of the countries concerned, be brought before the International Court of Justice by application in conformity with the Statute of the Court, unless the countries concerned agree on some other method of settlement.

[23]Supra note 2, at para.6.24.
[24]Id., at para.6.25.
[25]C.f.supra, note 2, The First Twenty Five Years of the World Intellectual Property Organization from 1967 to 1992.
[26]Originally, the United Nation intended to establish the International Trade Organization (ITO) as international Monetary Fund (IMF), but it was failed due to the United States Congress did ratify the Havana Charter even though U.S. drafted the proposed Chapter. C.f. John H. Jackson, World Trading System, 2nd, ed., The MIT Press, 1997. Also, c.f. Raj Bhala and Kevin Kennedy, World Trade Law, LEXIS Law Publishing, 1998, which said that this failure was due to” the
neo-isolationist of U.S. Senate”. (p.2)
[27]C.f. supra note 1, “Symposium: The Boundaries of the WTO”. John. H. Jackson said: “the problem of linkage between ‘nontrade ’subjects and the World Trade Organization is certainly one of the most pressing and challenging policy puzzles for international economic relations and institutions today.”American Journal of International Law Vol. 96 (January 2002), No.1.,p.118.
[28]It needs thinking not only from the political perspective, but also the Law & Economics. C.f. Jeffrey L. Dunoff & Joel P. Trachtman,”Economic Analysis of International Law”, The Yale Journal of International Law, Vol.24, (Winter 1999), No. 1, pp.1-59.
[29]Supra note 3, Report of Panel, at para.8.75,8.76.
[30]Id., at 8.80.
[31]Id., at 8.26.
[32]Supra. Note 3, the report of AB, at 338. #p#分页标题#e#
[33]The Article 9.2 of the WTO Agreement provides that the Ministerial Conference and the General Council shall have the exclusive authority to adopt interpretations of this Agreement and of the Multilateral Trade Agreements. Some scholars believe that Doha Decision is a “political declaration”. C.f. Steve Charnovitz, “The Legal Status of the Doha Declarations”, Journal of International Economic Law, (March, 2002) No.1, p.207. Some scholars think that it constitutes “supplementary means of interpretation”. C.f. supra. Note 6, Frederick M.Abbott, “The Doha Declaration on the TRIPS Agreement and Public Health: Lighting a Dark Corner at the WTO”, p.212. I disagree with these opinions.
[34]C.f. supra. Note 2, Daniel Gervais, The TRIPS Agreement: Drafting History and Analysis.
[35]Article 27.1 provides that subject to the provisions of paragraphs 2 and 3, patent shall be available for any inventions, whether products or processes, in all fields of technology, provided that they are new, involve an inventive step and are capable of industrial application.
[36]C.f.Zhang Naigen, Elected Cases Analysis of Patent Law in the United States (MAIGUO ZHUANLI FA PANLI XUANXI) Beijing: The Press of China University of Political Science and Law,1995,p.76..
[37]Article 65.2 provides that a developing country Member is entitled to delay for a further period of four years (4 plus 1) the date of application, as defined in paragraph 1, of the provisions of this Agreement other than Article 3,4 and 5.
[38]Article 70.8. Provides that where a Member dose not make available as of the date of entry into force of the WTO Agreement patent protection for pharmaceutical and agricultural chemical products commensurate with its obligations under Article 27, that Member shall:
(a) notwithstanding the provisions of Part VI, provide as from the date of entry into force of the WTO Agreement a means by which applications for patents for such inventions can be filed; #p#分页标题#e#
(b) apply to these applications, as of the date of application of this Agreement, the criteria for patentability as laid down in this Agreement as if those criteria were being applied on the date of filing in that Member or, where priority is available and claimed, the priority date of the application; and
(c) provide patent protection in accordance with this Agreement as from the grant of the patent and for the remainder of the patent term, counted from the filing date in accordance with Article 33 of this Agreement, for those of these applications that meet the criteria for protection referred to in subparagraph (b).
Article 70.9 provides that where a product is the subject of a patent application in a Member in accordance with paragraph 8 (a), exclusive marketing rights shall be granted, notwithstanding the provisions of Part VI for a period of five years after obtaining marketing approval in that Member or until a product patent is granted or rejected in that Member, whichever period is shorter, provided that, subsequent to the entry into force of the WTO Agreement, a patent application has been filed and a patent granted for that product in another Member and marketing approval obtained in such other Member.
[39]Supra. note 1, at para.7.23.
[40]Id., at para.7.24.
[41]Id., at para.7.27.
[42] Professor J.H. Reichman said that t is the safeguard for the pharmaceutical and agrochemical patentees in the developed countries. C.f., spura, note 1, Intellectual Property and International Trade: the TRIPS Agreement, p.32.
[43]Supra note 4.