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Full text of the letter asking for Justice Bhandari’s recusal from the Novartis Glivec dispute


Below is the full text of the letter, dated 5th September, which was sent to the government asking for Justice Bhandari’s recusal from the Novartis matter. It has been reproduced with the permission of the signatories of the letter. We had blogged about this controversy over here. Let me also clarify that this information is being put up for only informational purposes in order to provoke a wider, more informed debate and I do not endorse the views contained in the letter.
To,
Shri Salman Khurshid
Honourable Minister for Law & Justice,
Ministry of Law and Justice
A-Wing, 4th Floor, Shastri Bhawan
New Delhi – 110 001
Tel: 23387557/23384567
Fax: 23015223, 23384241

Re: Novartis AG v. Union of India and others (SC 20539 – 20549/2009)
and
Re: Urgent concerns over Supreme Court hearing

Dear Minister,

We are writing this letter to highlight an extremely sensitive matter regarding a sitting judge of the Supreme Court in an ongoing matter i.e. Novartis AG v. Union of India and others (SC 20539 – 20549/2009). The case is the final stage of an ongoing battle by Novartis’ two-fold attempt to get a patent on an anti-cancer medicine and weaken the health safeguards in the Indian Patent law.

At the outset we would like to make it abundantly clear that the matter we are raising is NOT one of transparency and it is NOT a matter of corruption. We have no interest in casting aspersions on the reputation of the Supreme Court or of the judge in question. However, we lay out below, the grounds for our belief as to why the Hon’ble judge hearing the Novartis matter should recuse himself from hearing the case. We are writing to you as the case in question has been filed against the Government of India and in relation to the interpretation of an act of Parliament i.e. the Indian Patents Act, 1970 and we believe this is a matter that the government lawyers must take up in court.

Background
Currently, the Supreme Court is hearing an appeal by Pharmaceutical MNC Novartis against the decision of the Indian Patent Office denying its patent application for imatinib mesylate, a crucial anti-cancer medicine. The case has been filed against the Government of India, generic companies and the Cancer Patients Aid Association. One of the grounds for the refusal of the patent was Section 3(d) of the Patents Act. This provision was enacted to prevent the abuse of patent system by preventing pharmaceutical companies from seeking patents on known chemical substances by making changes in them. Novartis is challenging the strict interpretation of Section 3(d) by the Indian Patent Office. The strict interpretation of the provision was highlighted in the decision of the Madras High Court upholding Section 3(d) in a case where Novartis challenged its constitutionality.

Our concern stems from the importance of the Indian patent laws health safeguards that till now the Indian judiciary has by and large upheld in light of the Constitutional guarantee of the right to health. In 2005 India complied with its WTO obligations to introduce product patents for 20 years on medicines. However given that India produces life saving generic medicines not only for itself but the whole developing world the Indian Parliament also included several health safeguards. These safeguards have constantly been challenged by multinational companies in court where judges have largely upheld the safeguards.

We believe these progressive judgements that seek to balance public interest and access to medicines with the private rights of patent holders have led to increased attention from patent holders on judicial trainings and education.

Grounds for Concern
When the matter came up before the Supreme Court one of the judges, Hon’ble Justice Markendya Katju recused himself from the case without citing any reason. However, it is widely believed that the reason is an article he has written in the Journal Section of the Supreme Court Cases (2004) 4 SCC (Jour) 46 http://www.ebc-india.com/lawyer/articles/2004v4a5.htm highlighting the need to balance public interest with patent rights. Among the judges now hearing the matter is Hon’ble Justice Dalveer Bhandari. Our concern stems from the attendance of Hon’ble Justice Bhandari at foreign conferences organised by the Intellectual Property Owners Association of the United States as well as several other industry funded or connected meetings. These conferences are disguised as educational events and their true nature may have remained hidden from Indian judges attending these conferences.

Who is the Intellectual Property Owners Association (IPOA)?
Hon’ble Justice Bhandari has participated in at least two International Judges Conferences organized and funded by Intellectual Property Owner’s Association (IPOA), United States of America. According to the IPOA website, its mission is to serve the global intellectual property community. The board of directors of IPOA includes Pharmaceutical and IT corporations and presently includes Glaxo, Pfizer, Roche, etc.
(http://www.ipo.org/Content/NavigationMenu/AboutIPO/BoardOfDirectors/Board_of_Directors_p.htm).

In their own words, IPOA is, “a trade association representing companies and individuals in all industries and fields of technology who own or are interested in intellectual property rights. IPO’s membership includes more than 200 companies and more than 11,000 individuals involved in the association, either through their companies or law firms or as IPO individual members. Our members file about 30% of the patent applications filed in the United States Patent and Trademark Office by US nationals and represent a substantial number of applications in the Indian Patent Office.” (http://www.ipo.org/AM/Template.cfm?Section=Board_Resolutions_and_Position_Statements&template=/CM/ContentDisplay.cfm&ContentID=27803)

Novartis, who has filed the case in the Supreme Court is a corporate member of the IPOA.
(http://www.ipo.org/Content/NavigationMenu/Membership/IPOMembershipListing/CorporateMembers/default.htm#n)

What are the IP Owners Judges Conferences?
The purpose of the IP Owners Judges Conferences is clear from their brochure:“Conference attendees will have an opportunity to share experiences with nearly one hundred judges from around the world. Beginning with a welcome reception on Monday, judges will attend sessions and social events with intellectual property law attorneys and other interested parties.”
(http://www.ipo.org/AM/Template.cfm?Section=Calendar&Template=/CM/ContentDisplay.cfm&ContentID=28728)

Topics of discussion presented by multinational companies and their lawyers at these conferences include patentable subject matter, obviousness, intellectual property enforcement, etc.
(http://www.ipo.org/AM/Template.cfm?Section=Calendar1&Template=/CM/HTMLDisplay.cfm&ContentID=22051). At their 2007 conference, India’s patent law including Section was a major subject of discussion and was again attended by Indian judges. (http://www.ipo.org/AM/Template.cfm?Section=Search&template=/CM/HTMLDisplay.cfm&ContentID=15296 and http://www.ipo.org/AM/Template.cfm?Section=Search§ion=Asian_Practice_Meetings&template=/CM/ContentDisplay.cfm&ContentFileID=55728)

Hon’ble Justice Bhandari has attended two of the International Judges Conferences organized by IPOA through its subsidiary known as IPO Education Foundation in 2009 and 2011. A perusal of the list of participants other than the judges shows several multinational pharmaceutical companies. For the 2009 conference, the list of participants is here http://www.ipo.org/AM/Template.cfm?Section=Calendar1&Template=/CM/ContentDisplay.cfm&ContentID=22075 and the agenda is here http://www.ipo.org/AM/Template.cfm?Section=Calendar1&Template=/CM/HTMLDisplay.cfm&ContentID=22051. For the 2011 conference, the list of participants is here [http://www.ipo.org/AM/Template.cfm?Section=Calendar&Template=/CM/ContentDisplay.cfm&ContentID=29731].

Published views on Intellectual Property
Hon’ble Justice Bhandari also presented a paper for the 2009 IPOA Judges Conference titled “Transnational Enforcement of Intellectual Property Rights; Indian Judiciary-Indian Cases and Suggestions for Further Strengthening of the Intellectual Property Rights”.
(http://www.ipo.org/AM/Template.cfm?Section=Calendar1&Template=/CM/ContentDisplay.cfm&ContentID=21815).

We uphold the right of any individual to express a particular opinion, and there can be genuine differences in opinion in many cases. However, this is not merely an issue of a personal opinion. Several statements in the paper could be held to be in conflict with the intent and letter of the Indian Patent Act, which tries to balance the rights of patent holders (mainly from developed countries as the said paper clearly acknowledges) with the larger interests of people who are not able to access health care for economic reasons. For example, the paper argues that pharmaceutical MNCs should educate public on the merits of IP and and that they should take the lead in making sure that proper laws on IP are enacted. The paper states: “Majority of pharmaceutical patents holders and IPR holders are from developed countries. They have burden duty and obligation to educate people regarding the importance of the protection of IP Rights by organizing seminars, symposia, debates on regular interval. They must make all efforts to ensure that all countries are persuaded to enact proper laws. They must also create awareness about the existing laws to the people”. [emphasis added]

Other Meetings
In 2007, Hon’ble Justice Bhandari was key-note speaker at the International Conclave on Intellectual Property for Judiciary & IP Practitioners organised by CII in association with the George Washington Law University (GWU), US-India Business Council (USIBC) and Andhra Pradesh Technology Department and Promotion Centre (APTDC) as part of its IPR Summit-2007. (http://supremecourtofindia.nic.in/courtnews/2007_issue_1.pdf) These IPR Summits between CII, GWU and USIBC have been severely criticised by Indian health groups given their industry funding as attempts to influence judges and law and policymakers in relation to crucial matters of public interest in relation to ongoing intellectual property litigation in the Indian courts. (http://keionline.org/node/793). We may also point out that USIBC has published a report against Section 3(d). (http://www.indiaenvironmentportal.org.in/files/USIBCIncrementalInnovationReportFinal.pdf). In 2009 Hon’ble Justice Bhandari also participated in the IP Business Forum (http://ipba.org/media/fck/files/IPND2009.pdf).

As we have stated above this is NOT a matter of transparency and it is NOT a matter of corruption. We are well aware of Hon’ble Justice Bhandari’s reputation and important decisions in other matters of public interest and greatly respect him in this regard. However, we are greatly concerned for the abovementioned reasons in relation to this particular case. We therefore request:

· That in light of the above information, we ask that the government take up the matter of recusal with Hon’ble Justice Bhandari to avoid any room for questions to be raised once the judgment is given in light of the already expressed opinions on IP discussed above. We stress again that given the manner in which these IP Owners Judges Conferences are disguised as educational events, it is highly likely that judges attending these meetings are unaware that these are not neutral venues offering balanced views and discussions on IP.

· That the matter of several sitting High Court and Supreme Court judges attending meetings on intellectual property organized by patent holding multinational companies or their lobbying organizations raising serious questions about the influence these meetings and the content of these meetings will have on cases involving intellectual property and the need to balance them with public interest whether it is in the area of access to medicines or access to knowledge be brought to the notice of the Hon’ble Chief Justice of India.

· In light of the critical importance of the Novartis case to the future of access to medicines in India and across the developing world, that the Indian Government defend this case to the best of its ability and through its top lawyer, the Attorney General of India.

Again, we would like to make it clear that this is not a matter of transparency as Hon’ble Justice Bhandari’s Supreme Court web page and the Supreme Court Annual Reports do note his participation at these conferences. Nor are we in any way suggesting that this is a matter of corruption.

Minister, we are acutely aware that this is an extremely sensitive matter. We are not interested in diminishing the reputation of Hon’ble Justice Bhandari or of the Supreme Court but the facts presented above compel us to seek some avenue for redressal.

Thanking you,

Dr. Amit Sengupta
Delhi Science Forum

Dr. B. Ekbal
Former Vice-Chancellor of Kerala University

M.R. Santhosh
Centre for Trade and Development

K.M. Gopakumar
Lawyer

Prabir Purkayastha
Knowledge Commons

CC:
Shri Anand Sharma
Hon’ble Minster of Commerce & Industry
Ministry of Commerce and Industry
Room No. 45, Udyog Bhavan
Rafi Marg
New Delhi, 110 001
Tel: +91-11-23061008, 23061492
Fax: +91-11-23062947
Email: [email protected]

Mr. Ghulam Nabi Azad
Hon’ble Minster of Health and Family Welfare
Ministry of Health and Family Welfare
348, A Wing, Nirman Bhavan,
Maulana Azad Road,
New Delhi 110 001
Tel: +91-11-23061751
Fax: +91-11-23062358
Email: [email protected]
Mr. D. R. Meena
Secretary – Legal Affairs
Ministry of Law and Justice
A-Wing, 4th Floor, Shastri Bhawan
New Delhi – 110 001
Tel: 011- 23384205, 23387908
Fax: 011- 23384403
Shri R. P. Singh
Secretary
Department Of Industrial Policy & Promotion
Ministry of Commerce and Industry
Room 157, Udyog Bhavan,
New Delhi – 110 011
Tel: 23061815, 23061667
Fax: 011-23061598
Email: [email protected]
Secretary
Dept. of Health and Family Welfare
Ministry of Health and Family Welfare
Government of India
149-A, Nirman Bhawan, New Delhi – 110 011
Tel: 23061863 / 23063221
Fax: 23061252
M: 098682 57000
Email: [email protected]
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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