The Mint recently carried an interview of Mr. Girish Telang, managing director of Roche Scientific India Pvt Ltd, the Indian unit of Switzerland-based F Hoffmann-La Roche Ltd. Incidentally this interview seems to be one of the few public statements by Roche, in regards, its high profile litigation against Cipla over Tarceva. (We’ve blogged about the Roche v. Cipla litigation here.)
SpicyIP however was rather surprised by the re-statement of some facts by Mr. Telang, since all these facts were very effectively countered by Cipla at the stage of arguments in the Delhi High Court. The fact that Cipla’s counter-arguments were indeed effective is apparent from a reading of the Delhi High Court judgment.
Firstly he states that the media keeps misrepresenting the price of Tarceva as Rs. 4800 when the actual price is Rs. 3200. This point about Tarceva costing only Rs. 3200 was made by Roche’s counsel in the Delhi High Court judgment but Cipla effectively countered this by actually producing copies of bills and packaging of Tarceva which clearly established that the price was indeed Rs. 4800 and that a strip of 10 tablets cost Rs. 48,000. (para 80 of the judgment). The Delhi High Court seems to have been completely convinced with this argument because later on in para 84 of the judgment the HC states that “The defendant’s product Erlotinib, on the other hand, is marketed at a third of the cost of Tarceva; it costs Rs. 1600/- per tablet”. This was crucial to the final outcome of the case, since the fact that the innovator drug was thrice the price of the generic drug appears to have influenced the HC in coming to its decision that it would indeed be in public interest to allow Cipla to continue manufacturing the generic drug. It is quite surprising that Roche could not even convince the judge of the price of its own product!
Secondly Mr. Telang states that “the Rs3,200 tag includes 32% customs duty. If you remove this duty and then look at the cost, it is only 15% more than that of the generic version, and I’m sure that much reward the innovator should be allowed to have.” This argument was countered by Cipla’s counsel who asserted that the price of its drug was Rs. 1600 after including “huge” excise tax. (para 41) The judgment never again touched on this aspect and one may assume that the judge seems to have bought Cipla’s argument. Admittedly the rate of customs and rate of excise are different and Roche would have been more convincing if it had accurately pre-empted Cipla rebuttal.
Thirdly Mr. Telang states that “We have assistance programmes where we support patients, free of cost. I don’t have numbers but, whenever a patient needs assistance and the doctor requests us, we always provide it. And, it is not just for Tarceva, it is for all our oncology products but, we don’t highlight such efforts.” If this statement is true, why in god’s name didn’t Roche even make a mention about this in Court? I seriously doubt the veracity of this statement since there is absolutely no mention of any such program on Roche India’s website (which by the way seems to have been last updated in 2005 – it doesn’t even mention Tarceva as one of their products!) or in any other search on the internet. Roche however does have patient assistance in America. Most pharmaceutical companies usually go out of their way to publicize such efforts.
The aforementioned points are going to be crucial to Roche’s appeal and if it indeed does want to win the appeal in its favour it needs to do it homework this time. A good starting point would be to copy Glivec’s GIPAP program in order to ensure that no patient goes without Tarceva for the mere reason that he cannot afford it. Such a noble gesture would undoubtedly convince any appeals court that ‘public interest’ has been taken care of.
