Govt. in favour of compulsory licensing only in cases of emergencies


The ET reports that the Government is in favour of using compulsory licensing only in emergencies. The report quotes a senior official of the DIPP (which controls the patent office) as saying “We are not in favour of CL unless there is an extraordinary problem. There is no point in going in for CL unless there is an epidemic which impacts a large chunk of the population, and needs immediate solution “. When asked whether a disease like cancer qualifies as an epidemic the official replied that “it may not”. These statements come in the backdrop of Natco’s application for a CL to export Tarceva and Stutent. (We’ve blogged about it here) The same report also mentions that the Cancer Patients Aid Association (CPAA) is seeking CLs for over 20 patented anti-cancer drugs on the grounds that the high cost of such drugs denies treatment to a majority of the public.
I hope these comments of the ‘senior official’ (anonymity seems to be the latest style of reporting these days – please click here for our previous comments on anonymity!) are not going to influence the current applications of Natco. When the patent office is hearing a dispute regarding the rights of a citizen it does so in its avatar as a quasi-judicial body which means that it is supposed to hear the dispute at an arm’s length from the both the parties and the government under which it works. Technically it is supposed to work as a civil court. However as a cynic of our legal system I have to admit that this is how the system is supposed to work and not how the system actually works. At the end of the day the ‘senior official’ is probably a senior babu in the Ministry and he probably controls the future of the Patent Office officials hearing the dispute. In the past the patent office official who granted Novartis the EMR was fired. My sympathies are with the patent office – they seem to be caught between the frying pan and the fire.
Even presuming that these statements influence the patent office, pharmaceutical patents still have to contend with the new judge made ‘compulsory licenses’ as demonstrated in the Roche-Cipla dispute.
On a slightly different note I am of the opinion that the mainstream press should refrain from editorializing on these issues (by quoting anonymous senior officials) while the hearings are going on. Reporting should stick to facts and end over there without anonymous quotes. It is true that the Patent Office may not qualify as a Court under the Contempt of Court Act, 1971 and hence reporting on matters which are sub-judice may not amount to contempt but at the end of the day the effect is the same – unwarranted pressure on the adjudicating institution. In this case it is worse because the report quotes an anonymous senior official of the Ministry which controls the patent office. The patent office unlike the IPAB or the civil courts is not administratively independent and is hence more susceptible to political pressure.
Prashant Reddy

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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