Newspaper: The Economic
Times
Section: Policy
Date: 6th Jan’ 09
Page: 13
Indian cos gain, not just MNCs
KRISHNA SARMA
Managing Partner Corporate Law Group
IN THE last couple of months, there has been much controversy
on patent grants for ‘mere modifications or new forms
of known drugs.’ From highlighting ‘inconsistency
and lack of transparency in the functioning of Indian Patent
Offices’ to allegations of graft and collusion—every
conceivable irregularity have been imputed, prompting 150
eminent persons to petition the prime minister.
The grant of patents to two of Cipla’s drugs, Osemaprazole
and Alendronate, by the Mumbai patent office is an encouraging
development in the evolving Indian patents regime. Osemaprazole
is a modified isomer of Astrazeneca’s blockbuster drug
Nexium, while Alendronate is a salt in amorphous form of Merck’s
best-selling drug Fosamax. At the same time though, other
patent applications similarly placed as Cipla’s two
products have been rejected by the Chennai and Delhi patent
offices.
At the heart of this inconsistency are Section 3 (d) of the
Indian Patent Act, 1970 and its interpretation. This provision
disallows second use patents and limits patent protection
to new forms of a known substance unless it can be shown that
they differ significantly in properties with regard to ‘efficacy’.
A significant problem in prosecuting patents today is the
varying interpretation ‘enhanced efficacy.’ This
leaves patent applicants vulnerable to subjective interpretations
of individual controllers and examiners in the four patent
offices.
It is true that several hundreds of pharmaceutical patents
have been granted in India since 2005. It is also true that
most of these patents are being granted to MNCs. Critics argue
that the number of patents being granted in India far outnumber
the NCEs (new chemical entities) being discovered in the world.
Further, they say many of the patents granted are for ‘marginal’
improvements to existing therapies—often shortly before
the original patent expires. This, they say, could undermine
generic competition, lead to limited access to medicines for
the poor and divert resources away from real research.
In fact, this criticism is not fair. First of all, multiple
patents (as many as 200) relating to a single product sometimes
result over time because significant hurdles were encountered
in the product’s development that, if not overcome,
would have prevented its manufacture or its safe and effective
use. Even the most innovative new compound will fail the test
of the market if its pharmacokinetic properties prove unstable,
if the medicinal content degrades in the human system or cannot
be safely stored on shelf, or if it can’t be manufactured
in standardised acceptable quantities, at reasonable cost.
These and other “inventive steps” that drive the
long journey from laboratory to patient are critical to ensuring
that a medicine is approved for the intended indication, with
minimal risk to the patient population, and at a cost that
the market will bear.
Second, spectacular breakthroughs (so-called “first-in-class
products”) are now rare. Change often occurs in molecules
that may seem trivial, but they bring about tremendous changes
in benefits to patients. A patient, for example, is free from
the stabbing pain of angina, not just because researchers
developed calcium channel blockers, but because they took
the next step: finding a way to lengthen the potency and therapeutic
benefits of these drugs in the human system, in extended release
tablets.
Patent system is required to provide the necessary incentives
to achieve these breakthroughs, especially with regard to
pharmaceuticals. The current level and type of R&D innovations
by the Indian drug industry are mostly incremental in nature
and over 70% of patent filings by Indian research institutes
belong to this category.
Therefore, the point is that the principles and application
of law must be uniform for homegrown firms like Cipla and
(foreign) MNCs.
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