Our April 1995 Newsletter (N.S. 185) reported a Presidential proclamation to implement Articles 70(8) and 70(9) of GATT-TRIPS to provide means for filing of patent applications relating to pharmaceuticals and agrichemical products in the period prior to the date on which India becomes obligated to provide protection for these types of inventions under GATT-TRIPS. The decree was issued at a time when Parliament was not in session. Under the Indian Constitution, for the decree to remain in effect ratification by Parliament is required within sixty days of its coming into session. Unfortunately, such ratification did not occur. The Indian Patent Office has, however, continued to act as if the decree were in force, apparently in the expectation that the position will ultimately be regularized.

In the meantime, the United States commenced proceedings against India in the World Trade Organization for failure to implement properly the relevant provisions of GATT-TRIPS. On September 5, 1997, the panel appointed by the WTO to investigate the position gave a ruling in favor of the United States on the ground that India has not provided a legally secure method for dealing with pharmaceutical and agrichemical inventions in the period before which it was required to give full patent protection for them. India has announced that it will appeal against the decision, which if upheld would give the United States the right to impose sanctions against India for failure to comply with its treaty obligations.

Editor's Note: See our subsequent report in our March 1999 Newsletter.