<p style="text-align:justify">The recent Delhi High Court verdict on the patent
case between Roche and the Indian Company Cipla may have positive implication on the Novartis case
now being heard in the Supreme Court. <span style> </span>Along
with the Compulsory Licensing granted to the Indian Company Natco Pharma's cheap generic drug against
Bayer’s branded costly product Nexavar the present Delhi High ruling is also historical.
In the Nattco case it was for the first time that the Patent Controller General
granted compulsory licensing in India though developing countries like Thailand
had issued 7 compulsory licensing till very recently. </p>
<p style="text-align:justify"><span style></span>The Delhi
High Court case was the first patent case in India under the patent regime
implemented from 2005 onwards. Roche was marketing the drug Tarceva for
management of advanced or metastatic non small cell carcinoma of lung in India
from 2007 onwards. The drug costs Rs 4800 per capsule and Rs.1, 44,000 for one
month’s course of treatment. Tarceva is the brand name of Erlotinib which acts
by inhibiting the epidermal growth factor for which Pfizer holds the original
patent from US and European Union Patent Offices. Roche is licensed by Pfizer
to market the drug in India and subsequently got the patent rights in India in
2007. </p>
<p style="text-align:justify"><span style></span>Meanwhile,
Cipla announced that they are going to market the generic version of Erlotinib
priced Rs 1600 per capsule i.e. Rs 48,000 for a month’s treatment. Roche then
filed the case arguing that Cipla for violating the rule 48 of the Indian Patent
Act which gives exclusive right to the patentee of a product to prevent any
third party from non consensual usage of the product. <span style> </span></p>
<p style="text-align:justify">Cipla opposed Roche’s case by invoking rule 3(d)
of the Indian Patent Act to argue that the Erlotinib is not a new drug at all
and hence the patent given to the drug is not valid. This drug is only an
improvement of the existing “prior art” as Quinazoline compound that inhibits
growth factor. It is a derivative of a known compound and hence not patentable
under section 3(d) of the Indian Patent Act. Cipla also pointed out that the
patented product is a derivative of Gefitnib of Astra Seneca for which patent
was refused in India on the ground that the compound was already in public
domain. </p>
<p style="text-align:justify">The Delhi high court accepted Cipla’s arguments
and gave a verdict against Roche. The Delhi High Court ruling in effect endorsed
the validity of rule 3(d) and hence will have strong positive impact on the
Novartis case on Gleevec. </p>
<p style="text-align:justify"> Ekbal</p>
<br>-- <br>Dr.B.Ekbal<br>Kuzhuvalil House, Arpookara East,<br>Kottayam-686 008, Kerala<br>Phone: 0481-2598305<br>Mobile: 94470 60912<br>