WORLD TRADE
ORGANIZATIONWT/DS199/3
9 January 2001
(01-0093)
Original:  English
BRAZIL – MEASURES AFFECTING PATENT PROTECTION
Request for the Establishment of a Panel by the United States
The following communication, dated 8 January 2001, from the Permanent Mission of the
United States to the Chairman of the Dispute Settlement Body, is circulated pursuant to Article 6.2 of
the DSU.
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The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement)
prohibits discrimination regarding the availability of patents and the enjoyment of patent rights on the
basis of whether products are imported or locally produced.  This obligation prohibits Members of the
World Trade Organization (WTO) from requiring "local working," i.e., local production, of thepatented invention as a condition for enjoying exclusive patent rights.
Article 68 of Brazil's 1996 industrial property law (Law No. 9,279 of 14 May 1996;  effective
May 1997), however, imposes a "local working" requirement which stipulates that a patent shall be
subject to compulsory licensing if the subject matter of the patent is not "worked" in the territory of
Brazil.  Specifically, a compulsory license shall be granted on a patent if the patented product is not
manufactured in Brazil or if the patented process is not used in Brazil.  In addition, if a patent ownerchooses to exploit the patent through importation rather than "local working," then Article 68 will
allow others to import either the patented product or the product obtained from the patented process.
Article 68 of Brazil's 1996 industrial propert y law discriminates against US owners of
Brazilian patents whose products are imported into, but not locally produced in, Brazil.  Article 68
also curtails the exclusive rights conferred on these owners by their patents.  As such, Brazil's local
working requirement appears inconsistent with its obligations under Article 27.1 and Article 28.1 of
the TRIPS Agreement.
On 30 May 2000, the United States requested consultations with the Government of Brazil
pursuant to Article 4 of the Understanding on Rules and Procedures Governing the Settlement of
Disputes (DSU) and Article 64 of the TRIPS Agreement (to the extent that it incorporates by
reference Article XXII of the General Agreement on Tariffs and Trade 1994) regarding the above
measure (WT/DS199/1).  The United States and Brazil then held consultations in Geneva on
29 June 2000 and on 1 December 2000 but failed to reach a mutually satisfactory resolution of thedispute.  Accordingly, the United States respectfully requests that a panel be established pursuant to
Article 6 of the DSU and Article 64 of the TRIPS Agreement.
The United States further requests that this request for a panel be placed on the agenda for the
next meeting of the Dispute Settlement Body, scheduled to be held on 19 January 2001, and that the
panel be established with standard terms of reference as set out in Article 7 of the DSU.
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