Intellectual Property and Evergreening of Patents

“It really is in our view another example of what I would characterize as a deteriorating innovation environment in India. The Indian government and the Indian courts have come down on the side that doesn’t recognize the value of innovation and the value of strong intellectual property, which we believe is essential.”

-Chip Davis, New York Times

Every inventor wants to enjoy financial gains from his invention, for that he/she has to get her invention patented. Once patented such invention cannot be copied by others for next 20 years. In other words the inventor can enjoy monopolistic benefits for 20 years.

Every country should have a legal frame work to protect such intellectual property, so that innovation is encouraged.

As a signatory to TRIPS Agreement, India too has legal framework in place to protect intellectual property in form of laws to protect patents, copyrights, industrial designs, trademarks etc. One such law is Indian Patents Act, 1970.

Current definition of invention as per act is

“Invention” means a new product or process involving an inventive step and capable of industrial application. “Inventive step” means a feature of an invention that involves technical advance as compared to the existing knowledge or having economic significance or both and that makes the invention not obvious to a person skilled in the art.

So any invention should have novelty, non-obviousness and industrial use.

Just as Indian Patent Act protects intellectual property, it also prevents malpractices like evergreening used by some companies to exploit people. Protection of intellectual property cannot be one sided affair i.e. use it only for protection, the organisations which want protection shouldn’t indulge in malpractices.

Evergreening_infographic

In 90s a team of scientists lead by biochemist Nicholas Lydon at Ciba- Geigy discovered compound called as Imatinib. It was useful in treating cancer. Later Ciba-Giegy was taken over by Novartis and Imatinib was sold under brand name Glivec. When patent was about to expire Novartis sought to extend patent claiming that current compound, beta crystalline form of Imatinib mesylate, was significantly different from original Imatinib. If extension had been granted then Novartis could have enjoyed benefits of patent for some more time.

GLIVEC_FCT

“This ruling is a setback for patients that will hinder medical progress for diseases without effective treatment options…Novartis would invest less money in research in India as a result of the ruling”

-Ranjit Shahani, vice-chairman and managing director of Novartis India Ltd

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This was challenged by other pharma companies and Supreme Court of India ruled against Novartis as they did not find significant difference in (lack of non-obviousness) original compound and beta crystalline form of Imatinib. This ruling of Supreme Court made significant impact on practice of evergreening of patents i.e. make minor changes in composition or dosage and show it as a new compound to retain patent rights.

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