Mint recently reported that the Indian Pharmaceutical Alliance (IPA) sent a letter [on 17 March 2009] to P.H. Kurian [Controller General of Patents, Designs and Trademarks], T.C. James [Director, Department of Industrial Policies and Promotion] and the Union Government Body that oversees the country’s patent enforcement regulations, asking for a probe be conducted to examine the delay in deciding patent opposition cases.
The alliance, which represents India’s top pharmaceutical companies, including Ranbaxy Laboratories Ltd, Dr Reddys Laboratories Ltd and Sun Pharmaceutical Industries Ltd., alleges corruption on behalf of the patent officials and claims that [pre–grant] patent opposition proceedings and the related law is being misused by department officials and that the guilty officials should be penalized.
It is interesting to note the in the article the author states that the delay in pre-grant opposition proceedings, heard by the Patent Office officials, benefits the opposing party as they can either keep the genuine patent applicants from commercializing their products or they can sell their own generic versions till a final decision is made. On the contrary, a delay in deciding on a post-grant opposition case results in a patent holder enjoying a continued monopoly in the market even if its patent rights are under question. Since the opposing party cannot exploit the market in the latter case, the pre-grant opposition proceedings are more lucrative from a commercial standpoint. Thus, as alleged, eyeing this benefit, several companies are taking undue advantage of the pre-grant opposition proceedings. If this were the logic behind companies causing and supporting delay in pre-grant opposition cases then IPA’s demand for a probe into the delay is quite interesting and surprising, since they themselves are opposing parties in several proceedings before the Patent Offices.
The letter closely follows the dicta of P. H. Kurian, who after taking charge in January, had issued an internal circular urging the heads of the four regional patent offices in Kolkata, New Delhi, Mumbai and Chennai to issue final orders by 31 March in some 600 patent and trademark opposition cases. Some of these cases have been pending for three years.
As per the report, Kurian and James could not be reached for comment.
It is pertinent to note that apart from the above-mentioned demand for a probe examining the delay, earlier this month, the IPA had asked the Union government to re-examine 86 drug patents granted between 2006 and 2008, the first three years of India’s new product patent regime for the drugs and agriculture sector. The body said 67 of these 86 patents were in violation of section 3(D) of the 2005 amended Indian patent law, and the remaining 19 were against section 3(E) of the new law.
Section 3(D) of the Indian patent law doesn’t permit patent grants for mere modifications of known drugs unless they can claim a significant enhancement of therapeutic efficacy compared with the previously known base product. And as per section 3(E), mere combinations of two or more known drugs don’t qualify for patent rights in
One has to wait and watch as to where this leads.