WTO Dispute Settlement
In past years, USTR has used the annual Special 301 report as a vehicle to announce the launch of WTO dispute settlement proceedings against countries that have not met their TRIPS obligations. As with last year's report, the focus this year is on resolving the WTO cases that were announced through previous Special 301 determinations, either through full utilization of the dispute settlement process (e.g., panel proceedings, Appellate Body review, and reasonable period of time arbitration), or through consultations, which are more efficient and are therefore the preferred manner of reaching mutually satisfactory solutions. The following section provides updates of previously announced WTO cases, highlighting the progress made in the past year.
Argentina
On May 6, 1999, as a result of the 1999 Special 301 determinations, the United States filed a WTO dispute settlement case challenging Argentina's failure to provide a system of exclusive marketing rights for pharmaceutical products, and to ensure that changes in its laws and regulations during its transition period do not result in a lesser degree of consistency with the TRIPS Agreement. Subsequently, as announced in the 2000 Special 301 Report, the United States expanded its claims to include new concerns that arose due to Argentina's failure to fully implement its remaining TRIPS obligations that came into effect on January 1, 2000. These concerns include Argentina's apparent failure to protect confidential test data submitted to government regulatory authorities for marketing approval for pharmaceuticals and agricultural chemicals; denial of certain exclusive rights for patents; failure to provide such provisional measures as preliminary injunctions to address patent infringement; and exclusion of certain subject matter from patentability. In all, the United States raised ten distinct claims with Argentina in this dispute. Consultations were then held on July 17, 2000, November 29, 2000, April 2, 2001, July 13, 2001, September 21, 2001, and November 5, 2001. Progress was made during these consultations, and on the week of April 15, 2002, in meetings held in Buenos Aires, the United States and Argentina agreed to harvest the progress made and finalized the elements of a joint notification to the WTO, partially settling this dispute.
In the joint notification to the WTO, Argentina clarified how certain aspects of its intellectual property system, such as those related to its exclusive marketing rights regime, operate so as to conform with the TRIPS Agreement. In addition, Argentina agreed to amend its patent law to provide protection for products obtained from a process patent, to ensure that preliminary injunctions are available in intellectual property court proceedings, and to shift the burden of proof from the plaintiff to the defendant in civil proceedings involving process patents. Finally, on the two outstanding issues that remain, that of data protection and the ability of patentees to amend pending applications to claim certain enhanced protection provided by the TRIPS Agreement, the United States retained its right to seek resolution under the WTO dispute settlement mechanism.
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