As Halloween approaches, a particular editorial at ET seems spooked by the prospect of lawful and equitable access to medicines! In doing the opposite of what its title suggests, ‘Protect Patients and Patents Smartly’, the editorial piece published on October 15, 2026 is an unfortunate example of legal misinformation and misinterpretation, stuck in the old binary of access versus patent. This published piece runs contrary to years of judicial wisdom, contradicts itself, conflates different legal questions and advocates for a rather shocking political consequence. Platforms of reach, such as the Economic Times, are expected to do better than fumble on the basics of patent law. The patents are well protected; the patients, one really hopes are too. Amidst all this, must we also worry about accurate reporting?
One case, not two.
Contrary to what the editorial claims, it is fairly obvious that the Kerala High Court order does not concern two cases on Ribociclib. It was only one case. After the petitioner’s demise, the Kerala High Court took suo motu cognisance. On the Kerala High Court’s delay, the Supreme Court took suo motu cognisance, directing the High Court to conclude the proceedings. Different levels of suo motu cognisance did not create two different cases. The editorial’s author would do well to browse through our extensive coverage of the case over the years (by Tejaswini, Mathews, Praharsh, Rishabh and me), or perhaps, just read the judgment.
What is the real “spirit” of the order?
When one does take the effort to read said judgment, it also becomes clear that “the spirit of the order” does not remotely intend the GoI to “resist the temptation to invoke Section 100 of the Patents Act, 1970”. Rather, the Kerala High Court, in line with the Supreme Court’s precedent, repeatedly emphasises the conditions under which the government-use might activate. Quite ironically, this is the judgment where the “spirit” of Section 100 has been expanded for the first time to establish a direct nexus between government-authorised manufacture and supply to patients! The practical application remains contingent on discretion and availability of data; but that is a different issue we discuss at length here. One can only imagine how haunted the proverbial spirit of the order might be feeling at such a misinterpretation!
Section 100 is not a threat to the patent system
It is a rather blatant and unsubstantiated assertion that the use of Section 100 would automatically “undermine the pharmaceutical industry to come up with drugs.” This is too simplistic a statement. The Patents Act, 1970, is a robust statute, and each provision that exists within it does so for a reason. The provision in question has a foundational grounding in the TRIPS Agreement, 1995 and has the weight of a history of international consensus behind it. To dismiss the possibility of its application so lightly is to give in to easy corporate rhetoric that pits legislative safeguards against granted patents. This misses the nuance of drug affordability and accessibility to be read in relation to, and not in spite of, patent law.
The judgment elevates the government’s duty to provide affordable medicine access to a constitutional mandate. However, it is nobody’s conclusion that measures like Section 100 are to be avoided or that their potential application foretells some certain doom for pharmaceutical manufacture. Again, a grossly oversimplified and misleading interpretation of the judgment as well as patent law. Especially when research shows that the use of compulsory licensing-based provisions is a sign of a mature patent system, it does not decrease innovation and has to be reconciled with public health measures.
Ongoing Proceedings at the Supreme Court
The editorial piece makes erroneous claims about the ongoing proceedings at the Supreme Court, “On Monday, it called for price controls on all non-patented medicines and consumables…” The price controls in question are neither on “all”, nor on “non-patented” medicines. The announcement on said Monday, i.e. October 12, 2026 concerned capping of trade margins at 30% for “non-scheduled” cancer drugs, with the Apex Court examining its extension to other essential medicines and products beyond cancer treatments. Scheduled and non-scheduled drugs are categorisations in Schedule I of the Drug Price Control Order, 2013. Schedule I drugs are based on the National List of Essential Medicines for which the NPPA fixes and revises price ceilings. Non-scheduled formulations are subject to lower price fixations. The categorisations are independent of the drugs’ patent status.
How an Aadhar-based DBT system could operationalise financial support to target patients is beyond me. Even if a financial disbursement scheme of this sort were to come into effect, why would it be in direct conflict with and be required as a means to avoid (the supposed) “overriding” of patents, I do not understand. What I do know is that this elaborately creative procedure, however it may work, would be nightmare fuel for the already failing policy mechanism that hasn’t been able to keep a basic track of cancer patients in the country (read more here and here).
Attraction lies in the eyes of the beholder?
The editorial claims, “Invoking the Patents Act may be politically attractive” and that the use of Section 100 sends a “damaging signal” contrary to the “reputation” required “to attract global investment.”
Well, politically attractive to whom? And what is this global investment that is so fickle that it will stop on the application of a single provision? If one must look at the operation of patent law through the lens of politics, then invoking and not invoking patent law is a politically charged act in equal measure – it only depends on what vantage point you assume. The editorial seems to signal that the government must actively avoid a legally legitimate policy lever for access to medicines, despite its very evident and judicially recognised requirement, only to save face before foreign corporations.
Such is the expectation from the ‘pharmacy of the world’? No. The expectations run deeper. Every patent law-centric decision made on medicines has a politically reverberating impact on the South-South policy diffusion and policy decisions of other similarly situated nations. Global investment will come through anyway. And drug development will also continue. Drug development is not always and not entirely a single-enterprise function; for instance, drug development is often based on publicly funded infrastructure (see this new scheme). And often, the final pricing of the drug that is invoiced to the patient depends on competition-based market factors (see here).
The best way out is through
Much ink has been spilt in the past arguing over the potential and imagined negative implications of the use of compulsory licenses and other licensing variations in patent law. I believe this dialogue has progressed. Instead of viewing the so-called ‘limitations’ in direct conflict with patentee’s commercial rights, a better way out would be to construct a logistically feasible model for application of these provisions, should the need arise.
There are more useful trajectories to go down than the ones contained in this editorial. I leave some of them here: where is the required data that one would need to prove their case? Who must collect it and how? Is the government liable for the absence of this data? Within the constitutional mandate, why are the state governments silent when health is a state subject? Does the trade margin capping actually effectively reduce medicine costs? And one big question: how can we see compulsory license-based mechanisms, not in diametrical opposition to the patent system, but rather as a functioning part of it?
