November 13, 2007 by Ruby Chapman
A Swiss pharmaceutical company, Novartis, sought to have the January 2006 decision to reject its patent application for the cancer drug imatinib mesylate (Gleevec) reversed by the Chennai High Court in India. Gleevec is used in the treatment of Leukemia. Novartis sells Gleevec at $2500 per patient per month in India; generic versions cost $175 per month” (MSF). The Chennai Patent office rejected Novartis’ patent application on the grounds that the application was a new form of a known substance (Glivec).
Novartis challenged the Indian Intellectual Property (IP) law that prohibits the patenting of a minor variation in an old drug. “Novartis claims that Section 3(d) of the Indian Patents Act is not compliant with the WTO rules outlined in the agreement on Trade-Related Aspects of Intellectual Property (TRIPS). Section 3(d) formed a substantial part of the basis on which the Gleevec patent was originally denied” (ibid, & IPA s3(d)).
The decision to reject the patent in this case prima facie seems contrary to the established legal principle that a right-holder be granted “lengthy breathing-space to enable the invention to be developed and marketed without competition except from non-infringing substitutes” (Vaver, pg 113). Considering that cheaper generic versions of Gleevec are available, it appears that other companies are benefiting from the right-holder’s ingenuity.