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As the arguments in the now epic Novartis case draw to a close before the Supreme Court of India, I’m glad to report that the bench, consisting of Justice Alam & Justice Desai, gave Shamnad a patient and receptive hearing in his role, as an amicus curiae or ‘academic intervener’ in Supreme Court parlance.
As our readers may remember, Shamnad had filed an intervention application before the Supreme Court last year in order to provide academic assistance to the Court in what is probably the most important IP case to be decided by the Supreme Court in its history. This was a relatively unconventional move as academics in India do not usually file such interventions and from what I’ve been told Shamnad’s intervention was the first of its kind. His arguments before the Supreme Court continued over two days and one lawyer who witnessed the arguments wrote to me saying “Court 5 is expected to be packed on account of this unconventional academic approach. His arguments (as expected) were logical, uncluttered, and with a delightful sprinkling of anecdotes and examples. Including quoting Ogden Nash.” The same lawyer also informs me that “This is a first of its kind academic intervention in over 60 years, and one that has had such impact. Honestly, with so little knowledge among us counsel on specific areas of law (IP, IT, GI, Competition) such steps must be encouraged.”
I second those views. Academics in India are usually cloistered in their classrooms and conference rooms. I hope we have several more of such interventions, especially since we now have a breed of brilliant young academics in India and for its part the Supreme Court appears to be very receptive to the idea.
The arguments made during the intervention
I’ve posted below the links to the summary and written submissions made by Shamnad to the Supreme Court. I’m not going to get into describing the arguments, lest I lose some in translation but it should suffice to say that Novartis is not going to be too happy with some of the conclusions that Shamnad has drawn in this case, especially the conclusion that “Therefore, under the present set of facts and the evidence filed, the new form does not cross the section 3(d) hurdle.” To translate that into simple English – given the evidence on record, Novartis should not be granted a patent for Glivec.
At the same time the activist community & generic drugs industry are going to be less than happy with Shamnad’s emphatic conclusion that excessive pricing cannot be a ground to revoke a patent on the grounds that it offends Section 3(b) of the Patents Act, 1970 which in itself bars certain patents on the grounds of public order or morality. In pertinent part, Shamnad’s summary states “Does the claimed new form violate section 3(b), owing to the high price of patented drug? No, section 3(b) only applies when the commercial exploitation of the invention itself is barred by public order or morality.”
Well, I think it is safe to say that Shamnad is not going to win a popularity contest conducted amongst the litigants in this case but as an academic it is a privilege and honor to lose such popularity contests.
The ‘summary’ and the ‘written submissions’ are available below:
(ii) Written Submissions (Part I);
(iii) Written Submissions (Part II).