India’s Supreme Court declines to hear compulsory licence appeal
Managing IP is part of the Delinian Group, Delinian Limited, 4 Bouverie Street, London, EC4Y 8AX, Registered in England & Wales, Company number 00954730
Copyright © Delinian Limited and its affiliated companies 2024

Accessibility | Terms of Use | Privacy Policy | Modern Slavery Statement

India’s Supreme Court declines to hear compulsory licence appeal

India’s first compulsory licence has survived its latest and likely final court challenge

Last Friday, the Supreme Court handed down a two-sentence long order rejecting Bayer’s petition for special leave for appeal of the compulsory licence granted for its Nexavar cancer drug.

In July, the Bombay High Court held that there was no reason to overturn the compulsory licence originally granted by the patent controller and later upheld by the Intellectual Property Appellate Board.

India’s patent law has several provisions that allow for compulsory licences. Section 84 of the Patents Acts allows generic manufacturers to apply for a compulsory licence if it can show that: (a) the reasonable requirements of the public with respect to the patented invention have not been satisfied, or (b) that the patented invention is not available to the public at a reasonably affordable price, or (c) that the patented invention is not worked in India.

The patent controller sided with Natco on all three grounds, granting the licence with a royalty rate of 6% of net sales. The IPAB in March 2013 upheld the decision, though it questioned the patent controller’s holding that a drug is not being worked if it is imported into India rather than produced domestically. The Bombay High Court again upheld the compulsory licence and made a point of agreeing with the IPAB on the issue of whether importation constitutes the working of a patent.

A possible but unlikely challenge

Though the Supreme Court denied the special leave petition, Bayer may still choose to file a review petition with the Supreme Court. Such a petition would be reviewed by the same bench that handed down the original denial, which may be overturned if Bayer can prove that there is “apparent error”. If this is denied, the Supreme Court may further consider a curative petition to prevent abuse of process or to cure gross miscarriage of justice.

However, one India lawyer suggests that this will be a difficult to get the Supreme Court to reverse its own decisions absent a strong case. One of the more high-profile examples, he explains, is the so-called 2G spectrum scam cases, where the Supreme Court agreed to review parts of its own decision to cancel 122 licences for spectrum for use with wireless communications.

more from across site and ros bottom lb

More from across our site

A 36-member team from Zhong Lun Law Firm, including six partners, will join the newly formed East IP Group
The Delhi High Court sided with Ericsson against Indian smartphone maker Lava, bringing the companies' nine-year dispute to a close
We provide a rundown of Managing IP’s news and analysis from the week, and review what’s been happening elsewhere in IP
Tennessee has passed the ELVIS Act, a law that fights against AI models that mimic the voice and likeness of music artists
Rob Stien, chief communications and public policy officer at InterDigital, says the EU has forgotten innovators while trying to solve an issue that doesn’t exist
As Australia’s Qantm IP leans towards being acquired by a private equity company, sources discuss what it could mean for IP firms
Law firms that are conscious of their role in society are more likely to win work, according to a survey of over 23,000 in-house professionals
Nghiem Xuan Bac Pham, managing partner of Vision & Associates, discusses opportunities created by the US-China rift as well as profitability issues facing IP practices
Douglas Leite and two of his colleagues were intrigued by Bhering Advogados’s mission to grow its patent litigation practice
Each week Managing IP speaks to a different IP practitioner about their life and career
Gift this article