The Novartis decision had less to do with an allegedly alien patent standard and more to do with the specific facts of the case, argues Shamnad Basheer
In a landmark decision, India’s Supreme Court upheld the rejection of a patent covering Novartis’s famed anti-cancer drug Glivec on the ground that it was no more than an insignificant variation over an existing pharmaceutical substance.
As expected, the decision fuelled an already polarized debate around pharmaceutical patents, innovation and public health. While industry enthusiasts decried the decision for its wanton disregard of innovation incentives, public health activists and patient groups heralded the decision as a significant human rights victory.
I come neither to praise the decision nor to bury it, but to simply suggest that if we are to have a serious debate on pharmaceutical patents and innovation incentives, this decision is the wrong one to have it around. Rather than an allegedly high patent standard, the decision had more to do with very specific facts, including damning admissions made by Novartis in several of its patent and drug regulatory submissions and an abysmal failure to submit convincing evidence to show how its new variant was significantly better than what existed before.
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Shamnad Basheer is the Ministry of Human Resource Development chair professor in intellectual property law at West Bengal National University of Juridical Sciences and was an academic intervenor cum amicus who assisted the court in this case.