Local pharma in patent rush


The DNA news report titled “Pot-kettle? Local pharma in patent rush” criticises domestic pharma companies such as Cipla, Natco and Wockhardt which file oppositions against trivial patenting and simultaneously file patent claims for molecular tweaks. It quotes Amit Sengupta, general secretary of All India Peoples Science Network on its argument that Indian pharma firms have become aggressive on claiming patents. The trend is set to rise in future. The domestic market is expected to be worth $20 billion in five years, of which 15% of the total medicines will be patented products. The report calls for enhancing the competition which will naturally bring down the prices of medicines.
Unfortunately, the report does not clearly substantiate its arguments. It merely states that the Indian pharma companies filed more than 500 patent applications in 2008-09. The figure per se cannot be used to argue that the Indian companies file applications for weak patents. The report further states that the companies are seeking patents for drugs such as imatinib mesylate and anastrozole. Considering that the above mentioned drugs are in the public domain, the veracity of the statement is doubtful. The report may have intended to mean that the pharma companies are seeking patents for different forms of the above mentioned drugs.
The news report should be read in the light of recent revocation of Cipla’s process patent over the preparation of duloxetine and its intermediaries. Cipla was granted the aforesaid patent in 2008. In 2009, Cadilla filed opposition under section 25(2) of Patents Act. Cipla challenged the opposition and subsequently, hearing for both the parties was fixed on 18th August, 2010. Meanwhile, in letter dated 9th August, 2010, Cipla intimated the Controller about its decision to abandon the patent. Considering the letter, the Controller decided to cancel the hearing and revoke the patent. Costs were not awarded on either party. [The Order is available here]
The instant Order evokes certain concerns. If Cipla had obtained patent in prescience of its dubious nature, then it would imply the existence of a patent strategy aimed at unjust enrichment – monopoly over the process for more than a year which it should not have had enjoyed. The Controller should have called both the parties for hearing and awarded costs, on proof of existence of such strategy. This could have deterred other pharma companies from emulating this strategy. The aforesaid power is well within the ambit of S. 63 of Patents Act – “if the patentee notifies the Controller that he desires to withdraw the patent after notice of opposition is given, the Controller, depending on the merits of the case, may decide whether costs should be awarded to the opponent.”
As observed by Prof. Shamnad Basheer here, there is a rising schism between the interests of generics industry and patient groups. Illustratively, Cipla is routinely targeted by the National Pharmaceutical Pricing Authority for overpricing its drugs in India. Further, it is not to be forgotten that Ranbaxy supported granting patents for incremental inventions in its submissions before the Mashelkar committee. In the light of acquisition of dual personalities by Indian pharma companies (eg. Ranbaxy – Daiichi merger), Prof. Basheer predicts decline in number of patent oppositions filed by generics companies against their foreign partners. Considering the changing character of Indian pharma companies, I am reminded of the Biblical message – “He that is without sin among you, let him first cast a stone at her” (John 8:7).
Mathews P. George

Mathews P. George

Mathews is a graduate of National University of Juridical Sciences, Kolkata. His interest in intellectual property was kindled when he bagged the second position in his second year of Law School (in the prestigious Nani Palkhiwala Essay Competition on Intellectual Property). His stint as a student of Prof. Shamnad Basheer further accentuated his interest in intellectual property. Winner of almost a dozen essay competitions in his Law School days, he was involved in various research and policy initiatives relating to intellectual property. Mathews is, currently, based out of Munich, Germany. He had earlier done his LLM in 'IP and Competition Law' from Munich Intellectual Property Law Centre (jointly run by Max Plank Institute for Innovation and Competition, University of Augsburg, Technical University of Munich and George Washington University, Washington).

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