India’s Supreme Court declines to hear compulsory licence appeal
Managing IP is part of Legal Benchmarking Limited, 4 Bouverie Street, London, EC4Y 8AX
Copyright © Legal Benchmarking 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

The FRAND rate is only 5 cents higher than the per-device rate determined at first instance in 2023
We provide a rundown of Managing IP’s news and analysis from the week, and review what’s been happening elsewhere in IP
Nearly four months after joining Crowell & Moring, Edward Taelman reflects on starting afresh, new clients, and firm culture
Firms discuss the ebb and flow of life sciences IP work and explain how they help professionals pivot between specialities
Mercedes-Benz, Dolby Laboratories, and Panasonic discuss the merits and drawbacks of the USPTO's terminal disclaimer proposal
In-house counsel believe Chinese domestic firms are becoming as sophisticated as international firms, but they may not shift their portfolios just yet
The Court of Appeals for the Federal Circuit is looking to renew a ban that has prevented Judge Pauline Newman from hearing cases
The list of the top representative firms at the UPC may yield few surprises but their success did not come free
The German firms have accounted for 26% of all infringement actions, while US corporations appear interested in litigating at the forum, a report has revealed
Vincent Brault tells us how he fits kitesurfing into his lunchtime routine and why IP is no longer seen as ‘nerdy’
Gift this article