SpicyIP Tidbit: Natco’s ‘compulsory licensing’ request to come up for hearing next week

IP Watch reports that Natco’s request for a compulsory license to export anti-cancer drugs to Nepal, is going to come up for hearing by the end of February. (Full story is available here) As most of our readers must know SpicyIP had covered this case extensively a couple of weeks ago. The request for compulsory licensing was made under S. 92A of the Patent Act, which allows for ‘compulsory licensing for export of patented pharmaceutical products in certain exceptional circumstances’. This case is especially significant because it is the first time that India is testing this provision. The only other time such a provision has been used in the world has been when Canada used a similar provision to license anti-AIDS drugs to Rwanda. So far compulsory licensing provisions, worldwide, have been used mostly only when ‘AIDS’ had been deemed to have caused a public health issue. This maybe the first time that somebody is alleging that ‘cancer’ is causing a public health issue. Given the inherent flexibilities of the ‘public health’ provision as a result of the Doha Declaration, it is very likely that even ‘cancer’ will be deemed to be a public health issue. It will therefore be interesting to see how the Controller interprets the ‘public health problem’ in Section 92A.
Another issue which Shamnad had pointed out in one of his posts was that it was not yet clear as to whether the Nepal Government had issued a notification as required by Section 92A. Even the present IP Watch report has not clarified this point. This issue may turn out to be a contentious issue given the fact that Nepal is making a slow transition to a democracy and is still in the process of drafting a new constitution and therefore the question crops up as to which authority in Nepal may issue a notification?
We’ll bring you more on this case next week.

Prashant Reddy

T. Prashant Reddy graduated from the National Law School of India University, Bangalore, with a B.A.LLB (Hons.) degree in 2008. He later graduated with a LLM degree (Law, Science & Technology) from the Stanford Law School in 2013. Prashant has worked with law firms in Delhi and in academia in India and Singapore. He is also co-author of the book Create, Copy, Disrupt: India's Intellectual Property Dilemmas (OUP).

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