Patent is an exclusive right granted by the government to an inventor for a limited period of time in exchange of complete disclosure of invention. Compulsory License is an important provision under the amended Indian Patent Act which is used by Indian Patent Office to put a check on the abuse of monopoly provided by the grant of patents to the inventor.
Giant Pharma MNC’s like Bayer Corp. is an ideal example of those MNC’s which have captured the Indian Pharmaceutical market by selling their patented dugs at exorbitantly high price & the Indian patients are compelled to buy these life saving drugs thus overloading their expenses. In present case Natco Pharma Ltd tried to negotiate with Bayer Corp .to get an involuntary license to sell generic version of patented drug, but Bayer Corp. in order not to lose the market capture denied to grant the involuntary License to Natco Pharma Ltd.
Present case deals with the controversy against the recent grant of first compulsory license by the Indian Patent office to an Indian Generic company ,Natco Pharma Ltd .This grant of C.L now allows Natco Pharma Ltd to sell Bayer’s patented drug Nexavar in India.
Grant of compulsory License to Indian generic company, Natco Pharma Ltd was a landmark decision which was given by Indian Patent office on 05TH March 2012 .According to the decision the Controller General directed Natco Pharma to sell the generic version of liver/cancer drug Nexavar at a price over 30 times lower than sold by its patent holder ,Bayer Corporation. Giant German Pharma company ,Bayer corporation used to sell the patented drug Nexavar at price of Rs. 2 lakhs per month which was exorbitantly high price and was unaffordable for the patients .Moreover , even after the lapse of three years the patentee had not the worked the patented invention within the territory of India .Considering above terms and conditions compulsory license was granted by Indian patent office under section 84 of Indian Patents (Amended) Act,2005 to Natco Pharma Ltd.
Since the date of this decision it was speculated that Bayer Corporation will take further action against this order of Controller and will try each and every way to turn the decision in its favour.
Appeal Filed by Bayer Corp. against the Controller’s Order with IPAB:
On 4th May , German Pharma giant ,Bayer Corporation filed an appeal with the Intellectual Property Appellate Board against this decision of controller to grant compulsory license to Indian generic company ,Natco Pharma to sell the generic version of the drug Nexavar.
The IPAB is the statutory forum which was earlier constituted to hear & rule appeals against the decisions of the Registrar under the Indian Trade Marks Act, 1999 and the Indian Geographical Indications of Goods (Registration and Protection) Act, 1999.The IPAB since April 2 , 2007 has been extended to Patent law and is now authorized to hear and adjudicate upon appeals from most of the decisions, orders or directions made by the Patent Controller. Also , from April 2007 ,all pending appeals from Indian High Courts under the Patents Act have been transferred to the IPAB .
In case this appeal is allowed and the decision is turned in favor of Bayer Corp. it will be huge setback for Indian generic Pharma companies as well for the Indian patients suffering from Kidney/Liver cancer. IPAB should consider the facts and conditions of the case before taking any decision against this order of controller.
For now it can be concluded that time has come when provisions like C.L in Indian patent Laws should be strictly imposed on MNC’s for whom making money is the only motive.