Novartis: A judgement for Public health

By Cleofato A Coutinho
03 April 2013 22:15 IST

In the 12th five year plan (2012- 2017) where right to health is a major goal, today’s judgement of the Hon’ble Supreme Court dismissing the appeal filed by Swiss Pharmaceutical Giant’Novartis’ in the matter of their claim of patent over Glivec  the  anti cancer drug. Earlier the Indian Intellectual property appellate board rejected the patent claim of Novartis over Glivec .  At the heart of the controversy is section 3(d) of the Indian patent (amendment) act 2005. Section 3 (d) introduced by the U.PA–I government under intense pressure from the left part and the civil society in 2005 has come handy for this country to oppose pre-grant opposition, to patent claims by Multinational Pharma Giants. Today’s judgement is the first ever decision by the highest court on section 3(d) of the patent amendment act which brought in a flexibility to maneuver patients rights over the rights of the Pharma Giants.

The Novartis’ Gliveck drug was costing over rupees 1, 20,000/- a month per patient while the domestic Pharma companies about nine of them were providing generic drug at price of about 8,000/- per month. The said drug was used for blood cancer patients who are over 35,000 in our country and the  drug (Imatinib Mesylate) is to be taken lifelong. The said drug has been really useful in giving relief to blood cancer patients. It is public knowledge that the production costs are about rupees 1,000/- for monthly quota per patient. The market price of Glivec  put it beyond the reach of almost every blood cancer patient in the country and a grant of patent to Novartis would create a monopoly and  deny access to medicines for blood cancer patients . The patent claim of Novartis is a shining example illustrating  how a grant of patent could deny access to medicines to patients in India.

 The patent claim of Novartis was only a tweaked version of an existing drug for cancer. The intellectual property board held that the Novartis drug was not an invention  as per section 3(d) of the Indian patents act.2005 and it was only a new form of the old drug.

There can be no two opinions that India today is the third largest producer of medicines by volume and yet it is fourteenth in terms of value, that is because our medicines  are the lowest in terms of the price in the world . We are rightly described as the pharmacy of the developing world. Knowing our strength in the sector we were pushed into signing the world trade organization agreement on intellectual property rights with the fond hope that the multinational giants could rule the roost.

Justice Krishna Iyer called the patenting of drugs leading to increase in cost of medicines to be “cash and carry vulgarity”. Addressing the world health assembly at Geneva in 1981 Mrs. Gandhi addressing historic session on Global strategy on health   said:“My idea of a better ordered world is one which medical discoveries would be free of patents and there would be no profiteering from life or death.”

While we celebrate the Supreme Court judgement it is worth noting that the patent amendment act 2005 was brought to make the Indian laws consistent with the world trade organization agreement with the on intellectual property rights. Fortunately for us the NDA‘s 2003 bill never saw the light of the day. It was a complete surrender to the global pharma industry. The December 2004 ordinance brought in by the UPA government also fortunately did not become the law. The ordinance was designed to suit the interest of global pharmaceutical firms.

In 2004 as the’India shining’ brigade started fading, and we marched towards more reforms, the country was almost in a mood to barter away the right to health at the alter of globalization and reforms.  The left which is always accused of slowing down the growth of the Indian economy was mercifully in control of the situation. Their sustained pressure and refusal to buckle had brought in the section 3(d) due to which the entire country is today celebrating. It was only fear of defeat in parliament that forced the UPA government at the eleventh hour to agree to the amendment proposed by the left parties. Section 3(d) is one of the greatest contribution of the left parties to right to life and right to health.

We were extremely fortunate to have a bench that saw the Novartis case in the perspective of right to public health. It was a test case which had the implications for providing of medicines at rates within the reach of patients in countries like India and those which depend on medicines supplied from India. In case Novartis had succeeded right to health would have got undermined due to the prohibitive cost of patented drugs which do not permit production and sale of other drugs of generic variety. Critical areas like HIV/AIDS, diabetes, kidney and liver failure patients would have found it difficult to live.

Though the right to health has scored a major judicial victory, it cannot be subject to interpretative ambiguity of laws like the one on which Novartis gambled. It is extremely important that certain drugs must be placed beyond the purview of legal ambiguity by stating that there shall be no patents on medicines in the certain critical areas of public health.

Disclaimer: Views expressed above are the author's own.

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Cleofato A Coutinho

Cleofato Almeida Coutinho is a senior lawyer and one of the constitutional expert in Goa. A member of Law Commission of Goa, he also teaches at Kare College of Law in Madgao.

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