By a Proclamation of the President, India provided for "black box" protection for pharmaceutical and agri-chemical products as noted elsewhere in these pages regarding implementation of the GATT-TRIPS Agreement. Additionally, the Indian Patent Office implemented a mechanism for granting exclusive marketing rights in India for pharmaceutical patents before the patent applications are released from the "black box." However, since the Proclamation was made while Parliament was in recess, its continued effect after its initial period of validity was subject to the votes of approval by both houses of Parliament. Approval has been obtained from the lower house, but in the upper house there appear to be difficulties which have still to be resolved.

Under the Proclamation, if a patent application was filed on or after January 1, 1995, in any WTO-member country and this filing was before the "black box" filing in India, then such exclusive marketing rights could be secured in India for the period prior to the grant of a patent on the "black box" application if the conditions set out in Article 70[9] of the GATT-TRIPS Agreement were met. The Indian regulations for implementing these provisions require that:

Such exclusive marketing rights can be enforced and licensed in ways similar to patents.

It should be noted that, in respect of inventions made in India exclusive rights may be granted simply on a showing that the applicant has made an Indian patent application relating to a process for producing the product in question.

Editor's Note: See our subsequent report in our December 1997 Newsletter.