The case of Roma Drug vs Glaxo Smith Kline et al (GR no 149907, April 15 2009) is interesting because it retroactively applied the controversial Republic Act no 9502 or the Universally Accessible Cheaper and Quality Medicines Act of 2008. On August 14 2000, using a search warrant issued by the Regional Trial Court of Pampanga upon the complaint of GlaxoSmithKline (GSK), Roma Drug store owned by Romeo Rodriguez was raided by a team composed of the National Bureau of Investigation (NBI) operatives and inspectors of the Bureau of Food and Drugs (BFAD).
The team seized several imported medicines, including Augmentin tablets, Orbenin capsules, Amoxil capsules and Ampiclox. Roma Drug was one of six drug stores which were raided on or around the same time. The seized medicines, which were manufactured by GSK, were imported directly from abroad and were identical with the Philippine registered counterparts. There was no claim that the seized drugs were adulterated or mislabelled.
The NBI then filed a complaint against Rodriguez for violation of Section 4 of Republic Act no 8203, the Special Law on Counterfeit Drugs (SLCD), which prohibits the sale of counterfeit drugs. The classification of the seized drugs as counterfeit was based solely on the fact that they were imported from abroad and not purchased from the Philippine-registered owner of the patent or trade mark of the drugs. For his defence, Rodriguez challenged the constitutionality of the SLCD on three grounds: equal protection clause of the Bill of Rights; the policy of the state to make essential goods, health and other social services available to all people at affordable cost; and the policy of the state to protect and promote the right to health of the people and instil health consciousness among them..
Failing to get relief from the regional trial court, Rodriguez filed an instant petition for prohibition against the court to cease from proceeding with the trial. In its decision, the Supreme Court held that the constitutionality of the SLCD had been rendered moot and academic with the passage in 2008 of RA no 9502, which amended Section 72 of the IP Code, unequivocally granting third persons the right to import drugs or medicines whose patent is registered in the Philippines.
The Supreme Court further held that the unqualified right of private third parties such as Rodriguez to import or possess "unregistered imported drugs" in the Philippines is further confirmed by the Implementing Rules to Republic Act no 9502, promulgated on November 4 2008. Rule 9 states that the owner of a patent has no right to prevent third parties from using a patented product which has been introduced or put on the market in the Philippines or anywhere else in the world by the patent owner or by any party authorised by him.
On whether RA 9502 repealed any provision of the SLCD, the Supreme Court stated
"Where a statute of later date, such as Rep Act no 9502, clearly reveals an intention on the part of the legislature to abrogate a prior act on the subject that intention must be given effect. When a subsequent enactment covering a field of operation co-terminus with a prior statute cannot by any reasonable construction be given effect while the prior law remains in operative existence because of irreconcilable conflict between the two acts, the latest legislative expression prevails and the prior law yields to the extent of the conflict."