The Novartis Glivec saga took a rather strange twist at the Supreme Court, with Justice Markandey Katju recusing himself from hearing the matter.Naturally, Novartis appealed, hoping that the Supreme Court would, at the very least, rescue Indian patent jurisprudence from the hands of a flighty IPAB and secure it in more legally tenable moorings. Since the rejection by the IPAB is also based on section 3(d), and standards of determining efficacy are not terribly clear, it is well nigh impossible to predict which way the Supremes are likely to rule.
But enough of the merits of this big ticket patent case. Lets move on to the rather spicy twist in the tale..
As the matter came up today, Justice Katju noted, with a poker face, that it may not be proper for him to sit in on this case. The rumour mill was set in motion, and a dozen theories soon took shape..
One such theory is that he authored a piece in the SCC Journal in 2004 that was critical of pharma patents and MNC’s. Titled “Intellectual Property Rights and the Challenges Faced by the Pharmaceutical Industry”, he took the reader through the basics of the Indian patent regime and then concluded by noting that:
“The concern of the developing countries, when they are opening their vast markets for international trade by adding safeguards against undue monopolistic exploitation of vital knowledge, techniques or life-saving drugs needs to be taken note of to draw up acceptable standards for protection of intellectual property rights and ensure fair international trade and commerce and bring about some sort of uniformity in this field for all the “convention” countries to follow.”
In other words, a balance has to be struck between the need to give monetary inducements to new inventions, and making available these inventions to the broad masses in the underdeveloped countries at affordable prices. At present it is felt that many of the medical drugs available in the market are too costly for the poor people in India. Ways and means should therefore be thought out for making these drugs available to the masses at affordable prices, while at the same time giving inducement to the inventors to continue their research.”
I cannot, for the life of me, fathom as to how such a view may be seen as reeking of bias against big pharma patents. In fact, the statements above appear to be quite tempered and balanced. Perhaps he was being overcautious–and if that is so, that will be a “first” for Justice Katju, who is known more for throwing caution to the wind. For those interested, see my article documenting a rather controversial statement, where he equated all bearded individuals with the Taliban.
What is perhaps most paradoxical about this issue is that despite strong allegations of bias, Mr S. Chandrasekharan, former head of the Indian patent office, refused to recuse himself as a member of the IPAB, when it was tasked with the hearing of an appeal against the rejection of Novartis’ patent by the Indian patent office. Contrast this with the Honourable Katju who appears to be taking the “Justice must not only be done but seen to be done” aphorism to altogether new heights. Of course, all this assumes that Justice Katju was indeed recusing himself for his innocuous statements published in 2004. And not for some other reason.
Net result: The matter is likely to come up before another bench on Friday or Monday. One hopes that unlike the judges in Roche vs Cipla, the Supremes will not throw away this brilliant opportunity to clarify the scope and ambit of section 3(d), a section that we think is severely creased.
ps: image from here
A little birdie once told me that Justice Katju made some patently anti-patents comments during World IP Day. That may be the reason he recused himself.
Quite decent of him to do so.
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Thanks very much for this. However, do you know what the comments really were.
I heard of this incident too–and was told that Justice Katju was quite “anti-IP” in his speech. The term “anti IP” is itself an ambiguous one. I may be against the grant of weak pharma patents–but does that make me anti IP? That only means that i am concerned with having good standards in IP. In fact, anyone who advocates a dilution in IP grant standards to suit their own interests should be seen as anti-IP!
IPAP order while rejecting patent application of Novartis (Glivec)held that any patent like glivec would likely to cause ‘public disorder’ not as you have mentioned in the present post ‘against disorder’.
Examiner of Trade Marks,
New Delhi.
Dear Anon,
Tks for pointing this out. I’ve corrected the mistake.
Well,this case is turning out to be harbinger of a watershed case relieving everybody concerned and interested to have a clear and precise idea as to deduce the indian patent law.Novartis for one, is playing safe , as their recent reply to me regarding this whole storm is very docile to begin with and their wish that core international standards in pharma sector should not be diluted..
in my earlier comment to your post on the rejection of tarceva petition, i had disagreed with u regarding it being a ‘brilliant opportunity’ for the sc to expound upon 3(d). i had disagreed coz such a late filing of slp by the litigant stacked the odds against it so high that the favorable factors got outweighed. but in the glivec case, i wud agree with u that it is a gud opportunity for the sc to clarify on 3(d). moreover, it is high time that section 3(d) is settled. but the problem is that in order to settle 3(d), the judiciary will ve to do a lot of reading, as till now, it has not been able to grasp the true nature/principles/workings/concepts of patent/ipr. this is my humble view. i just wish the judiciary could devote some considerable time to understand patent/principles/ concepts before delivering judgments!
I do not understand why we Indians spend so much time, money and effort in crying wolf the moment we see an MNC trying to get a perfectly legitimate drug molecule patented. All that in the name of trying to save us poor Indians from dying from fancy diseases. A mere casual look at statistics (or the street outside your house) will tell you that more Indians die of hunger and `ordinary’ diseases like malaria and gastroentritis and such other stuff. We have 30 million people under poverty line with NO access to three square meals in a day, clean water and sanitaised living conditions. That we should be fighting an MNC tooth and nail for one drug molecule which as it is the bulk of the population will never be able to buy even in its generic form, is a joke. The problem with us is that we love to fight on non-issues and expend our energy in fighting the windmills.
Anju Khanna
I completely agree with Justice Katju’s views on patent protection v.s. making drugs affordable to the masses in India. Indian government should look into the matter and should first look into safeguarding the rights of its people (~80% are poor). Else, even if such a patent gets granted in India, the party who will be in power at the center will take control of it and grant compulsary licences for vote bank.
Recently two more HIV drugs were refused patent apparently.
Anyway, I am really curious to know if all this is helping improve access and availability to drugs or if its all just a case of – crabs in a barrel..and end of the day the patients are still suffering.
Also, why cant courts adopt measures like ..both generic and innovative companies initiate and contribute to patient assistance programs.
BTW this public interest thing is going a lil too far..i understand drugs..but ppl have started raising such arguments for stuff like – right to watch TV – ppl shd have access to television sets..so no patents!!! really?
Recently two more HIV drugs were refused patent apparently.
Anyway, I am really curious to know if all this is helping improve access and availability to drugs or if its all just a case of – crabs in a barrel..and end of the day the patients are still suffering.
Also, why cant courts adopt measures like ..both generic and innovative companies initiate and contribute to patient assistance programs.
BTW this public interest thing is going a lil too far..i understand drugs..but ppl have started raising such arguments for stuff like – right to watch TV – ppl shd have access to television sets..so no patents!!! really?
The most important issue here in this case is this- why did Novartis jump the gun and rush to the Supreme Court. If the Court does entertain this petition, it will firstly upset established trend and jurisprudence and send the wrong signals and open floodgates for SLPs to be filed at the drop of a hat appealing from every Tribunal’s order.
Dear Anon,
The precise relation between patents and lack of access has not been researched well enough. I think all of us would agree that patents are certainly likely to increase prices. However, the extent to which they do so and correspondingly, teh extent to which a cheaper generic would solve the access problem has not been tested out. And the Roche vs Cipla decision highlights this starkly: how many patients could have afforded Rs 50,000 a month (Cipla price) as opposed to Rs 1.5 lakhs a month (Roche price).
Unless we determine these questions, it is impossible to know how to respond and in what proportion to the “access” issue. To what extent do we limit patent rights?
Dear Anon,
The IPAB decision was legally flawed. Novartis has every right to appeal. And we’re in dire need of some legal clarity around section 3.d.