Will Supreme Court rule for patients over patents?

Rema Nagarajan
30 March 2013, 12:47 PM IST

The Swiss pharmaecutical company, Novartis, having lost the case to change India's patent law in the Madras High Court and before the Intellectual Property Appellate Board, is now making a last ditch effort before the Supreme Court. The ruling of the Apex Court is expected on April 1, Monday. The entire developing world is waiting with bated breath to see if the court will rule to uphold the Indian patent law which prevents patents from being granted for new form of a known medicine. After all, a large number of developing countries depend on Indian manufacturers for cheap and reliable supply of generic medicines that can treat cancer, HIV and other life threatening diseases.

Novartis drug called Glivec, whose generic name is imatinib mesylate, is a crucial anti-cancer drug. While Glivec costs Rs.1.2 lakh ($ 2,400) per patient per month, Indian generic companies sell generic versions of the same medicine for just Rs. 8,000- 10,000 ($160 – 200) per patient per month.

Since 2005, Novartis has been trying to stop the generic production of Glivec by getting a patent on it in India and in the process, also challenging the Indian law that allows the generic production of this medicine. Novartis has challenged section 3(d) of the Indian Patent Law which prevents patents from being given to new forms of already known substances. The company has been trying to get this section, which was put in as a public health safeguard in the Indian law, declared contrary to the trade agreement TRIPS. So far, Novartis has failed.

Even the scientist behind the discovery of imatinib, Brian Druker, had written an opinion piece in 2007 publicly stating that "the price at which imatinib has been offered for sale by Novartis around the world has caused me considerable discomfort. Pharmaceutical companies that have invested in the development of medicines should achieve a return on their investments. But this does not mean the abuse of these exclusive rights by excessive prices and seeking patents over minor changes to extend monopoly prices. This goes against the spirit of the patent system and is not justified given the vital investments made by the public sector over decades that make the discovery of these medicines possible."

Médecins Sans Frontières (MSF-Doctors Without Borders) had launched an international petition to persuade Novartis to drop the case in India but the company refused to do so. MSF pointed out: "Granting a patent on a medicine provides the patent holder with a monopoly on that medicine, which in turn allows the company to charge a high price in the absence of any generic competition. In fact, improving access to medicines is a matter of not simply making the medicine available but also making it affordable for patients and governments to buy."

Affordable healthcare for millions of patients across the world and India's status as the pharmacy of the developing world are now in the hands of the Apex Court.