Ever-greening of patents cannot be permitted: DIPP

Amid concerns expressed by multi-national companies over the Supreme Court's judgement in the Novartis case, India today said its laws are WTO compliant and no country could allow "ever-greening" of patents.

"There has been a lot of debate about a judgement given by the Supreme Court. I suppose it's not an issue of law because section 3(d) is embedded in the Indian Patent Acts, which is TRIPS compliant.

"I suppose everybody agrees that ever-greening should not be permitted," Secretary in the Department of Industrial Policy and Promotion (DIPP) Saurabh Chandra said here at a Ficci function on Intellectual Property Rights (IPR).

In a major blow to Swiss pharma giant Novartis, the Supreme Court earlier this month had rejected its plea for a patent on cancer drug Glivec.

The verdict was hailed by the Indian government and the NGOs as it would pave the way for the domestic firms to provide affordable drugs to lakhs of cancer patients in the country.

While rejecting the plea of Novartis, the apex court said there was no new invention and no new substance used in the drug prescribed for treating blood, skin and other types of cancer.

Earlier, the Comptroller General of Patent and Design had denied patent to Glivec on several grounds including its alleged failure to meet stipulations under sections 3(d) and 3(b) of the Indian Patent Law.

Section 3(d) restricts patents for already known drugs unless the new claims are superior in terms of efficacy while Section 3(b) bars patents for products that are against public interest and do not demonstrate enhanced efficacy over existing products.

Ever-greening of patent right is a strategy allegedly adopted by the innovators having patent rights over products to renew them by bringing in some minor changes such as adding new mixtures or formulations. It is done when their patent is about to expire.

A patent on the new form would have give the innovator company a 20-year monopoly on the drug.

The WTO's Trade Related Aspects of Intellectual Property Rights (TRIPS) Agreement is an attempt to narrow the gaps in the way these rights are protected around the world, and to bring them under common international rules.

TRIPS, among other things, establishes minimum levels of protection that each government has to give to the intellectual property of fellow WTO members.

Further, Chandra also defended India's stand on issuance of compulsory license (CL). The country had issues a CL for patented anti-cancer drug — Nexavar — to be produced and sold at a much cheaper cost in the country.