Argentina — Certain Measures on the Protection of Patents and Test Data

Summary up-to-date at 30 May 2008 

Mutually Agreed Solutions notified under Article 3.6 of the DSU

Complaint by the United States.

On 30 May 2000, the US requested consultations with Argentina concerning Argentina’s legal regimes governing patents in Law 24,481 (as amended by Law 24,572), Law 24,603, and Decree 260/96; and data protection in Law 24,766 and Regulation 440/98, and in other related measures. The US considered that Argentina:
•    fails to protect against unfair commercial use of undisclosed test or other data, submitted as a requirement for market approval of pharmaceutical or agricultural chemical products;

•    improperly excludes certain subject matter, including micro-organisms, from patentability;

•    fails to provide prompt and effective provisional measures, such as preliminary injunctions, for purposes of preventing infringements of patent rights from occurring;

•    denies certain exclusive rights for patents, such as the protection of products produced by patented processes and the right of importation;

•    fails to provide certain safeguards for the granting of compulsory licenses, including timing and justification safeguards for compulsory licenses granted on the basis of inadequate working;

•    improperly limits the authority of its judiciary to shift the burden of proof in civil proceedings involving the infringements of process patent rights; and

•    places impermissible limitations on certain transitional patents so as to limit the exclusive rights conferred by these patents, and to deny the opportunity for patentees to amend pending applications in order to claim certain enhanced protection provided by the TRIPS Agreement.
According to the US, Argentina’s legal regimes governing patents and data protection are therefore inconsistent with Argentina’s obligations under the TRIPS Agreement, including Articles 27, 28, 31, 34, 39, 50, 62, 65 and 70 of the Agreement.3
On 31 May 2002, the US and Argentina notified the DSB that they have reached an agreement on all of the matters raised by the US in its requests for consultations regarding this dispute and that concerning Argentina — Patent Protection for Pharmaceuticals and Test Data Protection for Agricultural Chemicals (WT/DS171).