INDIA - PATENT PROTECTION FOR PHARMACEUTICAL AND AGRICULTURAL CHEMICAL PRODUCTS
Document: Original: English INDIA - PATENT PROTECTION FOR PHARMACEUTICAL AND AGRICULTURAL CHEMICAL PRODUCTS Request for the Establishment of a Panel by the EC
Date: 15 September 1997
Document codes: WT/DS79/2
Complainant: EU
Respondent: India
Third parties: U.S.
Dispute stage: Panel
Agreements cited: Art. 27, 65, 70  Intellectual Property (TRIPS)

INDIA - PATENT PROTECTION FOR PHARMACEUTICAL
AND AGRICULTURAL CHEMICAL PRODUCTS
Request for the Establishment of a Panel by the EC
The following communication, dated 9 September 1997, from the Permanent Delegation of
the European Commission to the Chairman of the Dispute Settlement Body is circulated at the request
of that delegation.
My authorities have asked me to submit the following request on behalf of the European
Communities and their Member States for consideration at the next meeting of the Dispute Settlement
Body.
TheAgreementonTrade-RelatedAspectsofIntellectualPropertyRightscontainedinAnnex 1C
totheAgreementEstablishingtheWorldTradeOrganization(hereafterthe"TRIPS Agreement")obliges
all Members of the (hereafter the "WTO") to grant patents for the subject
matter specified in Article 27 of the TRIPS Agreement. Article 70.8 of the TRIPS Agreement provides
that where a Member makes use of the transitional provisions contained in the TRIPS Agreement and
does not make patent protection available for pharmaceutical and agricultural chemical inventions as
of the date of entry into force of the WTO Agreement for it, that Member must implement measures
to permit parties to file patent applications concerning such inventions on or after that date (hereafter
referred to as the "interim filing procedure"). When product patent protection is established, these
applications must be examined according to the criteria for patentability set forth in the Agreement,
based on the earliest effective filing date claimed for the application. Patents granted on the basis of
such applicationsmustenjoy the term and rights providedfor underthe TRIPS Agreement. Article 70.9
of the TRIPS Agreement further requires that Members subject to the obligations under Article 70.8
ofthe TRIPS Agreement provideexclusivemarketingrightstothosepartiesthathave filedan application
under the interim filing procedure, insofar as the product covered by the invention has been granted
marketing approval in the Member providing protection and another Member, and a patent has been
granted on the invention in another Member.
The legal regime currently in force in India does not make patent protection available for
inventions concerning pharmaceutical and agricultural chemical products as provided in Article 27
of the TRIPS Agreement, nor does it provide rules that conform to obligations of the TRIPS Agreement
regarding the acceptance of applications and the grant of exclusive marketing rights. As a consequence,
India'slegalregime appears tobe inconsistentwithitsobligationsunderthe TRIPS agreement, including
but not limited to Articles 27, 65 and 70 of the TRIPS Agreement.

In a communication dated 28 April 1997 (WT/DS79/1), the European Communities and their
Member States requested consultations with India pursuant to Article 4 of the Understanding on Rules
and Procedures Governing the Settlement of Disputes (hereafter the "DSU") contained in Annex 2
of the WTO Agreement and Article 64 of the TRIPS Agreement in conjunction with Article XXII of
the General Agreement on Tariffs and Trade 1994. Consultations were held on 14 May 1997, but
did not result in a satisfactory solution of the dispute.
Accordingly, the European Communities and their Member States request the establishment
of a panel to examine the matter in the light of the relevant provisions of the TRIPS Agreement and
to find that India fails to conform to the obligations contained in Article 27, 65 and 70 of the TRIPS
Agreement and thereby nullifies or impairs benefits accruing directly or indirectly to the European
Communities and their Member States under the TRIPS Agreement.
The European Communities and their Member States ask that this request be placed on the
agenda of the meeting of the Dispute Settlement Body scheduled to be held on 25 September 1997,
and that the panel be established with standard terms of reference as provided for in Article 7 of the
DSU.