A recent piece in the DNA by Roger Bates and Suresh Sati advocates for stronger IP protection in India and the signing upto TRIPS plus provisions in the India EU FTA, using interlia the tantalising prospect of significant FDI flows that would resuscitate India from its abysmal poverty statistic.“India’s patent office and courts have seemingly bowed to pressure from powerful domestic producers to deny patent protection on several deserving oncology products such as Novartis’ Glivec and Roche’s Tarceva, and HIV products such as Gilead’s Viread.”
To me, this statement effectively insinuates that Indian courts and government agencies denied these patents owing to “pressure” from the domestic generic pharma companies and not on “merits”.
In other words, the suggestion is that extra judicial considerations clearly permeated these decisions. A suggestion not backed up by the authors, apart from the mere assertion of its veracity. Clearly, a very troubling prospect for these authors, if Indian courts decide to take them to task for contempt and defamation…
The entire Indian society is protected by the laws of contempt, since we have a mechanism in place to have majesty of law above everything.
People whose caliber cannot be commented just take upon themselves so called erroneous task to fault everything even it happens to be much respected and awed Indian judicial system.
For deeds, contempt or what ever action must follow, that is logical conclusion.
Shamnad,
Had been debating this, internally.
Did you realise that this article in DNA is a recyle.
The original was published in Financial Chronicle a few days back, at
http://www.mydigitalfc.com/print/87928
Freq. Anon.
Dear FA:
you’re right: it is replica of FC piece….
a spicyip follower who wishes to remain anonymous writes:
“FDI is based on pure business considerations and not on local IP protection. Despite Europe offering 10 year data protection, US-based pharma manufacturers have not rushed to EU to open up R&D centers.If anything, Novartis moved its R&D from Basel to Boston; Pfizer closed Sandwich not Groton.”
responding after a long time.
of course, r&d n ipr protection ‘seem’ to be fairly well co-related. but there r lot more factors that determine this relationship n a direct ’cause-effect’-type rel. is very debatable, esp. in the light of the fact that its the market/business consideration that will primarily determine ‘all’ types of investments. as far as fdi inflow is concerned, whether there is ipr protection (of course, i aint considering the scenario of total absence of or anarchy in the ipr regime) to the multi-national’s products or not, as long as there is a reasonable ipr regime in place, the mnc ‘ll still invest in india. coz of the sheer market-size. if the market-size (which means better economics) warrants it, they’ll invest.
in this very light, one can clearly see why the investment from american firms into europe has not seen a great spurt, despite the latter’s data protection regime. coz there wont be much comparitive cost advantage. in the current geo-eco scenario, cost advantage lies in emergent nations. at least i think so.
on the main topic of this blog-post:- although the way the authors (Roger Bates and Suresh Sati) ve put forward their opinion in such a way as to be inviting (possibly) an interpretation in terms of ‘contempt’, yet i feel that their essence is somewhat right – i.e. those factors work unconsciously, sometimes, as they stem from the mass-ideology in operation at any time in a specific culture/regime. many a decisions r subtly guided not by rational appreciation of evidence, but by ones ideological (not only personal, but also collective) leanings prevalent at the time.
so, i wont say the the judgments have ‘bowed’ to domestic interest groups. but they certainly reflect the prevalent/mainstream ideology of the times. also, i wud differ with the second aspect of the authors quotation “….to deny patent protection on several deserving oncology products….”. in my view, those denials have most certainly been on merits, albeit subtly guided by the ideological moorings (individual as well as collective) of the time n country, but certainly not by any other extra-judicial consideration.
shamnad’s objection to the quoted excerpt may be correct when the literal meaning is taken (with some extrapolation); but if only the figurative meaning is taken, then the authors were trying to convey a simple observation. but they ve couched their idea in such words, as to exose them to the charge of contempt.
-aditya kant
(disclaimer: at this point of time, i absolutely dont know who these authors, Roger Bates and Suresh Sati, r n i aint trying to defend them coz of some linkage with them. my views r absolutely impartial.)
started getting into the academic mode. hence, am trying to re-start visitng/commenting on your blog, shamnad.
-aditya kant
hi mnbvc..
tks for coming back. i’m not sure if this is an ideological preference of the judge and patent office OR simply that of the legislature…reflected in the legislation. section 3.d et al…wide oppn and wide CL. the intent (flowing on from ayyangar report) is still clear: minimise the impact of patents.
secondly, am not sure if judges are to be blamed for the incompetence of plaintiffs’ in many of these cases. if you go to a judge without submitting your patent specification or you dont cross examine key witnesses, i’m guessing it will have some impact on the nature of final order. having studied many of the cases referred to by bates in detail, i think the losses have more to do with the fact that some of these patents were quite weak (per Indian standards); and to top it all, the counsels in many cases were not as competent as those of defendants counsels pratibha had a field day in most of these cases) and parties did not submit relevant evidence in some cases….no doubt ideological leanings will be present—but the decisions of these specific cases don’t reveal much about that….has more to do with the fact that patents weak and arguments and evidence marshalled wasn’t great.
hi shamnad,
some of your comments on counsels/evidence (i know what u r hinting at here, lol. but lemme tell u that in the 1st eventuality i hadnt entered the scene, n the 2nd eventuality must ve occurred post-me, lol.) may ‘appear’ to be correct. i also ‘may’ agree that the plaintiff’s patents might ve been inherently weak in many cases. but despite theoretical acceptance of your contentions, it doesnt absolve many of the decisions in the ip field.
moreover, in my last comment, i hadnt cast aspersions on the judgments, except for pointing out their reflection of the ideological leanings of the time/territory. moreover, excepting the judgments that may be glaringly erroneous, there is nothing fundamentally wrong in such reflections. coz what r judgments after all? they r merely microcosmic reflections of the macrocosm. they r bound to reflect it. however, my contention is merely that it would ve been a lot better if the judgments could rise (even if just a notch) above territorialism/nationalism n reflect a true appreciation of evidence/facts. the judgments have often been guided by the prevalent ideology of the time in any particular jurisdiction. things that r right in one time/territory, may be considered wrong in another time/territory. n my reference to ‘collective ideology’ included not only judicial ones, but every pillar of the indian system.
none is to be ‘blamed’ exclusively. in fact, i aint ‘blaming’ any one party; rather, am pointing out the lacunae. its clear that there is not a single side which is perfect – everyone has one or the other demerit. one has to identify or weed out those lacunae, in every player. my last comment was directed towards that end only. however, the lacunae on the counsels/plaintiffs’ side was still left untouched n its nice that u pointed out the lacunae on the plaintiffs/counsels side, too. but i hadnt expected it to contain personal references. i hadnt expected that a purely intellectual criticism would invite references at the personal level. i think something in my last comment must ve been perceived by u as personal, instead of intellectual, criticsm and hence your personal references. my mistake. i dont think i should be on this blog anymore. gud luck.
hi aditya,
not intended to be personal at all—in fact, this is an aspect i’ve blogged on several times on this very blog…using these very cases as examples i/e novartis gleevec and roche tarceva case. so this is nothing new and is an argument i’ve already run on this blog. i’m just reacting to a recent trend of always putting it down to something “underhand” or ideological, when parties lose. we saw it with enercon (where german patentee claimed it was a suspect decision)–when we investigated further, we find tht the plaintiff did not even bother crossing the defendants experts….. i’m just reacting to this trend…so nothing personal and i very much value yur feedback and comments. sorry if i offended you in some way.
its okay, bro. i might ve been mistaken. coz i always ve seen u as an enlightened academician. n so those references were perceived by me in that way. since u ve clarified, its all over.
however, lemme take this opportunity to clarify that i am neither fully on the side of the mnc nor the generics. but i want ‘india’ to be more competitive in the long run. n in my view, v need to move up a notch in the patents administration/justice arena. otherwise, i i am least concerned abt who is the loser or winner, as far as purely intellectual/academic discussion is concerned.
addendum:
u must ve seen in my first comment that i had lambasted not every judgment, or not every aspect of the judgment. in fact, in the penultimate para thereof, i had categorically said “… i wud differ with the second aspect of the authors quotation “….to deny patent protection on several deserving oncology products….”. in my view, those denials have most certainly been on merits, albeit subtly guided by the ideological moorings (individual as well as collective) of the time n country, but certainly not by any other extra-judicial consideration.”
also, in order to avoid giving the impression that i am on the side of the authors (bates & sati), i had put in a disclaimer.
so, dont misunderstand me. i dont follow the ‘trend’, of either mnc-bashing or generics-bashing. i ve a neutral viewpoint, having ‘indian’ (albeit my personal concept of indian-ness) interest at the top.