Tag Archives: Pharmaceuticals

“India is The Biggest Battlefield for Intellectual Property Rights”

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The US Senator Orrin Hatch reportedly made the above comment while introducing the 2014 report on ‘International Intellectual Property (IP) Index’, prepared by an Israel based consultancy firm – Pugatch Consilium for the Global Intellectual Property Centre (GIPC) of the US Chamber of Commerce. In this forum, the Senator further alleged, “India misuses its own IP system to boost its domestic industries”.

Similar comment on South African IP Policy:

It is interesting to note that this ‘Battle Cry’ on IPR follows almost similar belligerent utterance of a Washington DC-based lobbying firm named ‘Public Affairs Engagement (PAE)’, reportedly headed by a former US ambassador Mr. James Glassman.

PAE, in a recent South African IP policy related context, as deliberated in my earlier blog titled, “Big Pharma’s Satanic Plot is Genocide”: South Africa Roars”, had stated in January 2014, “Without a vigorous campaign, opponents of strong IP will prevail, not just in South Africa, but eventually in much of the rest of the developing world.”

The GIPC report:

That said, in the GIPC report, India featured at the bottom of 25 countries on Intellectual Property (IP) protection with a score of 6.95 out of 30. Thailand, Vietnam, Indonesia and Argentina also scored low in overall ranking on protection for patents, copyright and trademarks. The United States ranked at the top, followed closely by Britain and France.

Interestingly, no country could register a “perfect” score in the survey, which used 30 factors ranging from levels of counterfeiting and piracy to patents and legal protections for all kinds of products and services ranging from pharmaceuticals to software to Hollywood films.

Among other BRIC countries, Russia with a score of 13.28, China with 11.62 and Brazil with 10.83, ranked 13th, 17th and 19th, respectively, within the selected 25 countries.

Key reasons, especially related to pharmaceuticals, as cited for the poor rating of India are as follows:

  • “Patentability requirements in violations of TRIPS”
  • “Regulatory Data Protection (RDP) not available”
  • “Patent term restoration not available”
  • “Use of Compulsory Licensing (CL) for commercial non-emergency situation”

The ground reality in India:

The answers to all these questions are much discussed and now an integral part of Indian Patents Act, as enacted by the Parliament of the country after prolong deliberations by the astute lawmakers keeping patients’ interest at the center.

As I had indicated earlier, there does not seem to be any possibility of these laws getting amended now or in foreseeable future, despite the above ‘Battle Cry’, Special 301 Watch List of the US, and continuous poor rating by the US Chamber of Commerce. This is mainly because of humanitarian sentiments attached to this issue, which are robust and sensitive enough to ignore even politically in India. Let me try to address all these 4 points briefly as follows:

“Patentability requirements in violations of TRIPS”:

Patentability is related mainly to Section 3(d) of the Patents Act. India has time and again reiterated that this provision is TRIPS compliant. If there are still strong disagreements in the developed world, the Dispute Settlement Body of the ‘World Trade Organization (WTO)’can be approached for a resolution, as the WTO has clearly articulated as follows:

“WTO members have agreed that if they believe fellow-members are violating trade rules, they will use the multilateral system of settling disputes instead of taking action unilaterally. That means abiding by the agreed procedures, and respecting judgments. A dispute arises when one country adopts a trade policy measure or takes some action that one or more fellow-WTO members considers to be breaking the WTO agreements, or to be a failure to live up to obligations.”

Thus, it is quite challenging to fathom, why those countries, instead of creating so much of hullabaloo, are not following the above approach in the WTO for the so called ‘patentability’ issue in India?

“Regulatory Data Protection (RDP) not available”:

In this context, Commerce and Industry Minister Anand Sharma had reportedly asserted earlier at a meeting of consultative committee of the Parliament as follows:

“India does not provide data exclusivity for pharmaceuticals and agro-chemicals which is in the paramount interest of our generic pharmaceutical industry as grant of data exclusivity would have considerable impact in delaying the entry into the market of cheaper generic drugs.”

Hence, the question of having RDP in India does not possibly arise, at least, in near to mid term, which would require moving an amendment in the relevant Act through the Parliament.

“Patent term restoration not available”:

Again, this provision does not exist in the Indian Patents Act. Hence, in this case too, a change does not seem likely, at least, in near to mid term, by bringing an amendment through the Parliament.

“Use of Compulsory Licensing (CL) for commercial non-emergency situation”:

Besides situations like, national emergency or extreme urgency, the current CL provisions, as per the Indian Patents Act, specifically state that at any time after the expiration of three years from the grant of patent, any interested person may make an application to the Patent Controller for grant of patent on the following grounds:

  • Whether the reasonable requirements of the public with respect to the patented invention have been satisfied?
  • Whether the patented invention is available to the public at a reasonable affordable price?
  • Whether the patented invention is worked in the territory of India?

It is worth mentioning, the Government has no authority to direct any individual for not applying for any CL under the above provision of the statute, hence law will take its own course in this area too, unless an amendment through Parliament is made in the Patents Act, which seems very unlikely again in the near to medium term.

Eyebrows raised on methodology and motive behind the ‘IP Index’ report:

Media report indicates that IP experts in India have questioned the methodology and even the motive behind GIPC’s ‘International Intellectual Property (IP) Index’ where India has been ranked the lowest among 25 countries.

The same article quotes a well-known IP expert saying, “Underlying this report is a major paradox that protecting weak patents makes the IP regime a strong one. Countries such as India that have stood up for genuine innovation and refused to protect trivial inventions have been accused of having ‘weak’ IP regimes, while it should have been the other way round.”

The article also mentions that Pugatch Consilium, which provides advisory services to top global drug makers and their trade associations, drafted the report for the US Chamber of Commerce.

Conclusion:

Keeping aside the strong allegation that the GIPC report has some ulterior motive behind, the high profile PR blitzkrieg of the pharma multinational trade associations, quite in tandem with South African outburst on the same IP issue, as I wrote in my blog post “Big Pharma’s Satanic Plot is Genocide”: South Africa Roars”, is indeed noteworthy.

However, even if one goes purely by the merits of the report with GIPC’s reasoning on ‘Why is India losing ground’, I reckon, despite so much of cost-intensive efforts and pressures by the global pharma lobbying groups, their expectation for a change in the pharma patents regime in India, any time soon, is probably much more than just a wishful thinking.

By: Tapan J. Ray

Disclaimer: The views/opinions expressed in this article are entirely my own, written in my individual and personal capacity. I do not represent any other person or organization for this opinion.

 

New Clinical Trial Regime Deserves Support, Sans Threats

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Recent Supreme Court intervention compelling the Union Government to enforce stringent regulations both for approval and conduct of Clinical Trials (CT) in India, has unfortunately met with some strong resistance with stronger words. Some of these voices are from credible experienced sources and the shriller ones are mostly from vested interests with dubious credentials. However, it is also a fact that this interim period of process change in CT has resulted in around 50 per cent drop in new drug trials in the country, pharma MNCs being most affected.

Brief background:

The earlier system of CT in India created a huge ruckus as many players, both global and local, reportedly indulged in widespread malpractices, abuse and misuse of the system. The issue was not just of GCP or other CT related standards, but mostly related to ethical mind-set or lack of it and rampant exploitation of uninformed patients/volunteers, especially related to trial-related injuries and death All these are being well covered by the Indian and international media since quite some time.

The Bulletin of the World Health Organization (WHO) in an article titled, “Clinical trials in India: ethical concerns” reported as follows:

“Drug companies are drawn to India for several reasons, including a technically competent workforce, patient availability, low costs and a friendly drug-control system. While good news for India’s economy, the booming clinical trial industry is raising concerns because of a lack of regulation of private trials and the uneven application of requirements for informed consent and proper ethics review.”

Earlier system did not work: 

Just to give a perspective, according to a report quoting the Drug Controller General of India (DCGI), 25 people died in clinical trials conducted by 9 pharma MNCs, in 2010. Unfortunately, families of just five of these victims received” compensation for trial related deaths, which ranged from an abysmal Rs 1.5 lakh (US$ 2,500) to Rs 3 lakh (US$ 5,000) to the families of the diseased.

This report also highlighted that arising out of this critical negligence, the then DCGI, for the first time ever, was compelled to summon the concerned nine pharma MNCs on June 6, 2011 to question them on this issue and give a clear directive to pay up the mandatory compensation for deaths related to CTs by June 20, 2011, or else all CTs of these nine MNCs, which were ongoing at that time or yet to start, will not be allowed.

The 9 pharma MNCs summoned by the DCGI to pay up the mandatory compensation for deaths related to CTs were reported in the media as Wyeth, Quintiles, Eli Lilly, Amgen, Bayer, Bristol-Myers Squibb (BMS), Sanofi, PPD and Pfizer.

The report also indicated that after this ultimatum, all the 9 MNCs had paid compensation to the concerned families of the patients, who died related to the CTs. However, the situation did not change much even thereafter.

Indictment of Indian Parliamentary Committee:

On May 8, 2012, the department related ‘Parliamentary Standing Committee (PSC)’ on Health and Family Welfare presented its 59th Report on the functioning of the Indian Drug Regulator – the Central Drugs Standard Control Organization (CDSCO) in both the houses of the Parliament.

The report made the following scathing remarks on Central Drugs Standard Control Organization (CDSCO) under its point 2.2:

“The Committee is of the firm opinion that most of the ills besetting the system of drugs regulation in India are mainly due to the skewed priorities and perceptions of CDSCO. For decades together it has been according primacy to the propagation and facilitation of the drugs industry, due to which, unfortunately, the interest of the biggest stakeholder i.e. the consumer has never been ensured.”

Catalytic change with tough norms:

The intervention of the apex court heralded the beginning of a catalytic changing process in the CT environment of India. The court intervention was in response to a Public Interest Litigation (PIL) filed by the NGO Swasthya Adhikar Manch calling for robust measures in the procedural guidelines for drug trials in the country.

In an affidavit to the Court, the Government admitted that between 2005 and 2012, 2,644 people died during CTs of 475 New Chemical Entities (NCEs)/New Molecular Entities (NMEs), with serious adverse events related deaths taking 80 lives.

Accordingly, changes have been/are being made mostly in accordance with the recommendations of Professor Ranjit Roy Chaudhury Experts Committee that was constituted specifically for this purpose by the Union Ministry of Health.

Prof. Ranjit Roy Chaudhury experts committee in its 99-page report has reportedly recommended some radical changes in the CT space of India. Among others, the report also includes:

  • Setting up of a Central Accreditation Council (CAC) to oversee the accreditation of institutes, clinical investigators and ethics committees for CTs in the country.
  • Only those trials, which will be conducted at centers meeting these requirements, be considered for approval by the DCGI.

All modifications in the procedural norms and guidelines for CTs are expected to protect not just the interest of the country in this area, but would also ensure due justice to the volunteers participating in those trials.

The DCGI has now also put in place some tough norms to make the concerned players liable for the death of, or injury to, any drug trial subject. These guidelines were not so specific and stringent in the past. There are enough instances that CT in India, until recently, had exploited poor volunteers enormously, many of which reportedly did not have any inkling that the efficacy and safety of the drugs that they were administering were still undergoing tests and that too on them.

With those radical changes to the rules of the Drugs and Cosmetics Act, 1940, pertaining to CT, it is now absolutely mandatory for the principal investigator of the pharmaceutical company, unlike in the past, to reveal the contract between the subject and the company to the DCGI. Besides, much reported process of videography of informed consent ensuring full knowledge of the participant has already been made mandatory. Further, any death during the process of CT would now necessarily have to be reported to the DCGI within 24 hours.

A report quoting the Union Minister of Health has highlighted that, “Earlier, the informed consent of the persons on which the trials had been conducted was often manipulated by the companies to the disadvantage of the subjects,”

Reaction to change:

With the Government of India tightening the norms of CT, the drug trial process and the rules are undergoing a metamorphosis with increased liability and costs to the pharma players and Contract Research Organizations (CROs). The reaction has been moderate to rather belligerent from some corners. One such player reportedly has publicly expressed annoyance by saying: “The situation is becoming more and more difficult in India. Several programs have been stalled and we have also moved the trials offshore, to ensure the work on the development does not stop.”

There were couple of similar comments or threats, whatever one may call these, in the past, but the moves of the Government continued to be in the right direction with the intervention of the Supreme Court.

No reverse gear:

Thus, coming under immense pressure from the Indian Parliament, the civil society and now the scrutiny of the Supreme Court for so many CT related deaths and consequential patients’ compensation issues, the Government does not seem to have any other options left now but to bring US$ 500 million CT segment of the country, which is expected to cross a turnover of US$ 1 Billion by 2016, under stringent regulations. Thus any move in the reverse gear under any threat, as mentioned above, appears unlikely now.

Experts believe that the growth of the CT segment in India is driven mainly by the MNCs for easy availability of a large treatment naive patient population with varying disease pattern and demographic profile at a very low cost, as compared to many other countries across the world.

Conclusion: 

While the importance of CTs to ensure better and more effective treatment for millions of patients in India is immense, it should not be allowed at the cost of patients’ safety, under any garb…not even under any open threat of shifting CTs outside India.

If the DCGI loosens the rope in this critical area and even inadvertently allows some pharmaceutical players keep exploiting the system just to keep the CT costs down only for commercial considerations, judiciary has no option but to effectively intervene in response to PILs, as happened in this particular case too.

The new system, besides ensuring patients’/volunteers’ safety, justice, fairplay and good discipline for all, will have the potential to help reaping a rich economic harvest through creation of a meaningful and vibrant CT industry in India in the long run, simultaneously benefitting millions of patients, as we move on. However, the DCGI should ensure to add reasonable speed to the entire CT approval process, diligently.

Taking all these into consideration, let all concerned support the new CT regime in India, sans any threats…veiled or otherwise.

By: Tapan J. Ray

Disclaimer: The views/opinions expressed in this article are entirely my own, written in my individual and personal capacity. I do not represent any other person or organization for this opinion.

 

“Meeting Unmet Needs of Patients”: A New Direction

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The much-hyped phrase of the global pharma majors – ‘meeting unmet needs of patients’, is very often used to create an aura around newer patented drugs of all kinds, from original to banal, including evergreen varieties such as:

Evergreen Drug/Brand Medical Condition Original Drug/Brand
Levocetirizine (Vozet) Allergies Cetirizine (Zyrtec)
Escitalopram (Lexapro) Depression Citalopram (Celexa)
Esomeprazole (Nexium) Acid reflux Omeprazole (Prilosec)
Desloratadine (Clarinex) Allergies Loratadine (Claritan)
Pregabalin (Lyrica) Seizures Gabapentin (Neurotonin)

I do not have any terrible issue with this usage, as many stakeholders, including various governments, have already started differentiating between the ‘Chalk’ and the ‘Cheese’ kinds of patented products and contemplating future course of action, accordingly. The recent development in South Africa is one such example.

That said, there is now a greater need to ponder over the much bigger picture in the same context and direction, which would improve predictability of treatment outcomes by manifold. Simultaneously, such R&D initiatives would help reducing the overall cost, especially for dreaded diseases like cancer, mainly through highly targeted drugs and consequently avoiding the risk and associated wastage, as often happens with the prevailing ‘trial and error’ therapy approach, thereby benefitting the patients immensely. This is mainly because no drug is 100 percent effective with inconsequential side-effects for all patients of any disease type.

Genetics and Genomics Science made it possible:

With already acquired knowledge in genetics, genomics and genome sequencing capability, it is now possible to precisely predict a person’s susceptibility to various disease types and proactively working out measures to help either avoiding ailments, such as, non-infectious life threatening and chronic diseases altogether, if not, making their treatment more predictable and less expensive, as stated above.

If organized efforts are made to extend the application and benefits of this science to a larger section of population, those R&D initiatives can really be construed, unquestionably, as ‘meeting unmet needs of the patients’, just as ‘first in kind’ category of innovative drugs are recognized by the scientific community and the civil society as a whole.

A treatment revolution in the offing:

Expectations are rapidly building up that evolving genetics and genomics science based technological know-how would ultimately revolutionize the practice of medicine ushering-in the pathway of personalized medicine for a large number of patients.

Definition: 

A report from the Tufts Center for the Study of Drug Development defines personalized medicine as “Tailoring of medical treatment and delivery of health care to individual characteristics of each patient, including their genetic, molecular, imaging and other personal determinants. Using this approach has the potential to speed accurate diagnosis, decrease side effects, and increase the likelihood that a medicine will work for an individual patient.”

The aim: 

The aim of personalized medicine is, therefore, to make a perfect fit between the drug and the patient. It is worth noting that genotyping is currently not a part of clinically accepted routine. However, it is expected to acquire this status in the western world, shortly.

To give a very quick example, genetic differences within individuals determine how their bodies react to drugs such as Warfarin – a blood thinner taken to prevent clotting. It is of utmost importance to get the dosing right, as more of the drug will cause bleeding and less of it will not have any therapeutic effect.

In the field of cancer, genetic tests are now being done by some oncologists to determine which patients will be benefited most; say with Herceptin, in the treatment of breast cancer.

Thus, with personalized medicine the health of a patient will be managed based on personal characteristics of the individual, including height, weight, diet, age, sex etc. instead of defined “standards of care”, based on averaging response across a patient group. Pharmacogenomics tests like, sequencing of human genome will determine a patient’s likely response to drugs.

Disease prevention: 

In addition, such medicines would help identifying individuals prone to serious ailments such as, metabolic, cardiac, endocrine, auto-immune, psychosomatic, including cancer of various types; enabling physicians to take appropriate preventive measures much before disease manifestations and in that process would help containing the overall treatment cost.

Cost of genome sequencing:

Sir John Bell, Professor of Medicine at Oxford University, reportedly said in early December 2012 that personalized medicine for all could soon be a clear possibility, as everybody will be able to have their entire DNA make-up mapped for as little as £100 (Rs.10, 000 approx.).

This estimate seems to be realistic, as the price of genome sequencing has fallen by 100,000-fold in 10 years. This cost is expected to further decline, as genome of any person essentially remains unchanged over time. Thus, this information might become a part of an individual’s medical record allowing the doctors to use it as necessary.

Summary of key advantages: 

To summarize, the expected benefits from personalized medicine, besides very early diagnosis as stated above, are the following:

1. More Accurate Dosing: Instead of dose being decided based on age and body weight of the patients, the physicians may decide and adjust the dose of the medicines based on the genetic profiling of the patients.

2. More Targeted Drugs: It will be possible for the pharmaceutical companies to develop and market drugs for patients with specific genetic profiles. In that process, a drug needs to be tested only on those who are likely to derive benefits from it. This in turn will be able to effectively tailor clinical trials, expediting the process of market launch of these drugs.

3. Improved Healthcare: personalized medicine would enable the physicians to prescribe ‘the right dose of the right medicine the first time for everyone’ without any trial or error approach, resulting in much better overall healthcare.

Current use:

Though these are still the early days, initial usage of personalized medicine is now being reported in many areas, such as:

Genetic analysis of patients dealing with blood clots: Since 2007, the U.S. Food and Drug Administration has been recommending genotyping for all patients being assessed for therapy involving Warfarin.

Colorectal cancer: For colon cancer patients, the biomarker that predicts how a tumor will respond to certain drugs is a protein encoded by the KRAS gene, which can now be determined through a simple test.

Breast cancer: Women with breast tumors can now be effectively screened to determine which receptors their tumor cells contain.

In addition, this approach would also help clinicians to determine which particular therapy is most likely to succeed on which patient.

Present outlook: 

A September 2013 article published in Forbes Magazine titled, “Personalized Medicine May Be Good For Patients But Bad For Drug Companies’ Bottom Line” says, although personalized medicine offers tremendous potential for patients, because of the dual burdens of expensive clinical trials and diminished revenue potential, the concept may become unsustainable in the long term, the attitude of regulators will be critical to drug companies’ willingness to embrace personalized medicine, and to its wider application.

In my view, for greater interest of patients to ‘meet their unmet needs’ global pharma, majors, academics, respective governments and the drug regulators should find a way out in this new direction, sooner.

Indian initiatives:

Some companies, both well known and lesser known, are making collaborative progress, keeping low profile, in the genome sequencing area in India, which will ultimately make expensive treatments, such as cancer, more predictable and simultaneously affordable to many.

The concerns:

While the progress in the field of personalized medicine is quite heartening, some experts have reportedly been sounding a note of caution. They strongly feel that DNA code sequencing brings to light a “very real privacy concerns” of individuals.

The key argument being, if genome sequencing is extended to entire population, individuals and their relatives could then be identified and tracked by matching their DNA with the genome stored in the respective health records. This move, as contemplated by the opponents, could “wipe out privacy” with a significant impact on the society.

A paper published in ‘Scientific American’ dated January 2014, titled “What Fetal Genome Screening Could Mean for Babies and Parents” deliberated that today doctors are closer than ever before to routinely glimpsing the full genetic blueprints of a fetus just months after sperm meets egg. That genomic reconstruction would reveal future disease risk and genetic traits even as early as the first trimester of pregnancy – raising another ethical issue that could hugely impact parents’ decision threshold for deciding to terminate a pregnancy or influencing how they rear their child.

Thus, all these ethical and social issues in the development and usage of personalized medicine must be appropriately addressed under a well deliberated ethical, social, legal and regulatory framework of each country.

Conclusion:

Though in Europe and to some extent in the United States, treatments based on personalized medicine have already been initiated, we are still in a nascent stage for this novel concept to get translated into reality for the benefit of a much wider population across the world.

Lot of grounds may still need to be covered, especially in the realm of medical research and also to work out the regulatory pathways for personalized medicine in healthcare by the pioneers of this great concept and more importantly by effectively addressing the ethical concerns raised on this subject.

If collaborative initiatives are taken jointly by academia, R&D based global pharma majors and medical diagnostic players towards this new direction with a clearer focus and  supported by the law makers, a huge unmet needs of patients will truly be met, giving yet again a fresh impetus to the much hyped phrase “Meeting Unmet Needs of Patients”, though in a refreshingly new direction.

By: Tapan J. Ray

Disclaimer: The views/opinions expressed in this article are entirely my own, written in my individual and personal capacity. I do not represent any other person or organization for this opinion.

Herceptin Biosimilar Expands Drug Access to Breast Cancer Patients in India

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Come February 2014, much to the relief of more than 145,000 patients diagnosed with breast cancer in India, Herceptin of Roche, a critical drug for the treatment of the dreaded disease, will face competition, for the first time, from a less expensive biosimilar equivalent. The product named Canmab developed together with Mylan by Biocon has been priced 25 percent less than Herceptin.

Patient access issue for newer cancer therapy:

Herceptin has been a very critical drug, though equally expensive, for breast cancer patients globally.

Mainly because of its unusual high price, the product created an access barrier to majority of patients in India. Arising out of complexity of the problem faced by the cancer patients, hugely compounded by the affordability issue, on January 12, 2013, it was first reported that in a move that is intended to benefit thousands of cancer patients, Indian Government has started the process of issuing Compulsory Licenses (CL) for three commonly used anti-cancer drugs: 

-       Trastuzumab (or Herceptin, used for breast cancer),

-       Ixabepilone (used for chemotherapy)

-       Dasatinib (used to treat leukemia).

For a month’s treatment drugs like, Trastuzumab, Ixabepilone and Dasatinib reportedly cost on an average of US$ 3,000 – 4,500 or Rs 1.64 – 2.45 lakh for each patient in India.

Pricing issue needs a systemic resolution: 

While there is no single or only right way to arrive at the price of a patent protected medicine, how much the pharmaceutical manufacturers will charge for such drugs still remains an important, yet complex and difficult issue to resolve, both locally and globally. Even in the developed nations, where an appropriate healthcare infrastructure is already in place, this issue comes up too often mainly during price negotiation for reimbursed drugs. 

A paper titled, “Pharmaceutical Price Controls in OECD Countries”, published by the U.S. Department of Commerce, after examining the drug price regulatory systems of 11 OECD countries, concluded that all of them enforce some form of price control to limit spending on pharmaceuticals. The report also indicated that the reimbursement prices in these countries are often treated as de facto market price.

Though there is no such system currently prevailing in India, the Government is mulling to put in place a similar mechanism for patented medicines, as captured in the National Pharmaceutical Pricing Policy (NPPP) 2012.

Further, some OECD governments regularly cut prices of even those drugs, which are already in the market. The value of health outcomes and pharmacoeconomics analysis is gaining increasing importance for drug price negotiations/control by the healthcare regulators even in various developed markets of the world to ensure responsible pricing of IPR protected medicines. For various reasons, no such process is followed either for such product pricing in India, as on date.

Roche changed Herceptin strategy for India:

To effectively address the challenge of pricing of patented medicines in India, Roche reportedly entered into a ‘never-before’ technology transfer and manufacturing contract for biologics with a local Indian company – Emcure Pharma for its two widely acclaimed ‘Monoclonal Antibodies’ anti-cancer drugs – Herceptin and MabThera.

Consequently, Roche introduced its ‘made in India’ brand Herclon (Herceptin) with a much-reduced maximum retail price of about Rs. 75,000 for a 440 mg vial and started co-marketing the product with Emcure Pharma in India.

Although Herceptin patent remains valid in the United States (US) until 2018, Roche decided to discontinue its patent rights for Herceptin in India in 2013.

The pharma major reportedly lost this patent earlier in Europe. This vindicates the views of many experts that Herceptin patent was weak, as it would probably not be able to clear the litmus test of a stringent scrutiny under the Patent Acts of India. The report, therefore, argues that core reason for withdrawal of Herceptin patent in India by Roche cannot be attributed, even remotely, to the ‘weak IP ecosystem’ in India.

Biocon Pricing:

According to reports Biocon’s Canmab, the biosimilar version of Herceptin, will be available in 440 mg vial with a maximum retail price of Rs. 57,500 and also in 150 mg vial at Rs. 19,500.

Lower price would lead to greater patient access – Roche argued earlier:

It was reported, when Roche switched over to Herclon with around 30 percent discounted price from very high price Herceptin, access to the drug improved. In fact, that was the logic cited by Roche for the launch of Herclon in India at that time. 

Just to recapitulate, media reports indicated at that time that Roche intends to offer to Indian patients significantly cheaper, local branded version of Herceptin sooner. The same news item also quoted Roche spokesperson from Basel, Switzerland commenting as follows:

“The scope is to enable access for a large majority of patients who currently pay out of pocket as well as to partner with the government to enable increased access to our products for people in need”.

Conclusion:

It is beyond doubt that even with significantly lower price, Canmab would not be able to guarantee 100 percent access to the drug for all breast cancer patients in the country.

However, applying the same logic of Roche, as mentioned above, with further 25 percent price discount for Canmab by Biocon, the access to this drug should expand significantly for over 145,000 diagnosed breast cancer patients in India even, for an argument’s sake, all other factors, including inadequate number diagnostic facilities etc. remain the same. Isn’t that better?

By: Tapan J. Ray

Disclaimer: The views/opinions expressed in this article are entirely my own, written in my individual and personal capacity. I do not represent any other person or organization for this opinion

 

Pharma MNCs Jettison Lobbyist’s Plan: A Welcoming Development?

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In my just previous blog post titled, “Big Pharma’s Satanic Plot is Genocide”: South Africa Roars, I quoted a recent interview of the Health Minister of South Africa (SA) Mr. Aaron Motsoaledi on the above plan.

As reported in the interview and also indicated in an article in my blog, the Trade and Industry Department of SA, on September 4, 2013, published a long-awaited draft national policy on Intellectual Property (IP) in the Government Gazette.

Flabbergasted by the content of the draft policy, as the article indicates, pharma MNCs having operations in South Africa, almost immediately, started working on a plan through their trade association to surreptitiously change the direction of the above draft policy, radically. Instead of optimal protection for drug patents, the lobbyist reportedly planned to seek much stronger protection. 

Hatching a plan:

The report highlights, Virginia-based US lobbying firm ‘Public Affairs Engagement (PAE)’ accordingly prepared a blueprint titled, “Campaign to Prevent Damage to Innovation from the Proposed National IP Policy in South Africa” for the local trade body ‘Innovative Pharmaceutical Association of South Africa (IPASA)’. The PAE plan reportedly highlighted that, “South Africa is now Ground Zero for the debate on the value of strong IP protection. If the battle is lost here, the effects will resonate.” 

The document, according to the above report, was circulated to IPASA member companies on January 10, 2014, proposing the work to be conducted on the campaign from January 13 to February 15, the details of which I had penned in my previous blog post.

Fortunately, the grand strategy was leaked out and “South African Mail & Guardian Newspaper” published details of the game plan, which was consequently condemned with strong words by the health activists, across the world.

Pharma MNCs jettison lobbyist’s strategy:

It has now been reportedly confirmed that PAE did submit a proposal, against South African Government’s proposed draft patent policy, to IPASA. However, following a global furore on this development, as reported on January 20, 2014, the pharma MNCs operating in South Africa have since rejected the planned campaign and no payment or pledge has been made to the US based lobbyist. South Africa’s Health Minister had earlier warned that the said campaign would lead to “genocide.” 

Conclusion:

It is good to know that the local trade association of South Africa, as the external pressure started snowballing, has now articulated that, “It supports the broad objectives of the draft national IP policy…A number of the health-related recommendations outlined in the draft policy, including mechanisms for compulsory and voluntary licensing and parallel importation are already possible through existing legislation”.

Be that as it may, isn’t the decision of pharma MNCs to jettisoning the grand plan proposed by the lobby group against South African Intellectual Property (IP) related draft policy a pragmatic and welcoming one?

By: Tapan J. Ray

Disclaimer: The views/opinions expressed in this article are entirely my own, written in my individual and personal capacity. I do not represent any other person or organization for this opinion

“Big Pharma’s Satanic Plot is Genocide”: South Africa Roars

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In a recent interview, the Health Minister of South Africa (SA) Mr. Aaron Motsoaledi reportedly made the above comment.

The background:

As reported in the interview and also indicated in an article in this blog, the Trade and Industry Department of SA, on September 4, 2013, published a long-awaited draft national policy on Intellectual Property (IP) in the Government Gazette. In that draft policy, the department recommended, besides others, the following:

  • Provision should be made for the Compulsory Licensing (CL) of crucial drugs.
  • Provision should be made for the parallel importation of drugs.
  • Grant of drug patents should ensure that the drug is new or innovative.
  • “Patent flexibility” for medicine should be made a matter of law.
  • The holders of Intellectual Property Rights (IPR), such as drug companies, should be encouraged to protect their own rights rather than depending on state institutions, such as the police or customs.
  • SA should seek to influence the region, and the world, to move towards its vision of Intellectual Property (IP) protection.

The draft does not have the status of a policy, as yet, and was open for public comment.

Pharma MNC moved surreptitiously: 

Pharma MNCs having local operations being flabbergasted by this development, almost immediately, started working on a plan to change the direction of the policy radically, the report states. Instead of optimal protection for drug patents, they planned to seek stronger protection. 

Having finalized the counter strategy this month, the local MNC pharma association, ‘Innovative Pharmaceutical Association of South Africa (Ipasa)’, reportedly selected a Washington DC-based lobbying firm ‘Public Affairs Engagement (PAE)’, headed by a former US ambassador – Mr. James Glassman, to lead the charge against the policy. PAE, by now, has put forward a proposal on how it would effect radical changes to the policy, the report stated.

The same article mentions, PAE intends to launch a persuasive campaign throughout Africa and in Europe with an aim to convince the South African Government to further strengthen, rather than weaken, patent protection for drugs. The grand plan of PAE contains elements, which could seriously bother many right thinking individuals, as it includes:

  • Setting up a “coalition” with an innocuous name such as “Forward South Africa (FSA)”, which will be directed from Washington DC, while appearing to be locally run in SA.
  • Encouraging other African countries, especially Rwanda and Tanzania, to help convincing SA that it could lose its leadership role in the continent, if it decides to push ahead with the draft policy.
  • Distracting NGOs from their own lobbying by changing the nature of the debate.
  • Commissioning seemingly “independent” research and opinion pieces for broad public dissemination – but vetting all such material before publication to ensure those fit the messages. 

Creation of surrogate public faces:

It is worth noting from the report that the so called coalition ‘FSA’, the proposed public face of the campaign, would be “led by a visible South African, most likely a respected former government official, business leader or academic”. However, at the same time, it would be “directed by staff from PAE and its South African partner”.

Majority funding by an American association in SA:

The report also highlights, nothing in the document suggests that the funding for FSA – estimated at  mind-boggling numbers of U$ 100,000 from IPASA and another US$ 450,000 from an ‘American Association’ of pharmaceutical companies – would be disclosed.

The report concluded by quoting the American lobbyists hired to launch a counter campaign, which states, “Without a vigorous campaign, opponents of strong IP will prevail, not just in South Africa, but eventually in much of the rest of the developing world.”

This is not a solitary example:

The Guardian reported another such incident in July 2013. The article stated that the global pharmaceutical industry has “mobilized” an army of patient groups to lobby against the plan of European Medicines Agency (EMA) to force pharma companies to publish all Clinical Trial (CT) results in a public database for patients’ interest.

While some pharma players agreed to share the CT data as required, important global industry associations strongly resisted to this plan. The report indicated that a leaked letter from two large pharma trade associations, the Pharmaceutical Research and Manufacturers of America (PhRMA) of the United States and the European Federation of Pharmaceutical Industries and Associations (EFPIA), have drawn out a strategy to combat this move.

The strategy reportedly demonstrates, as the article highlights, how have the Big Pharma associations drawn the patient groups, many of which receive funding from drugs companies, into this battle.

Conclusion: 

As I had articulated several times in the past, newer innovative drugs are extremely important in the fight against diseases and this flow must continue, actively supported by a well-balanced Patents Act of the country, as India has already implemented.

That said, the moot question continues to remain, who are these innovations and innovative medicines for? Are these to save precious lives of only a small minority of affluent nations, their populations and other wealthy people elsewhere, depriving a vast majority, across the world, of the fruits of innovation? Would repeated harping on the much hyped phrase, “meeting unmet needs of patients”, negate such gross indifference?

If that is the case, it becomes the responsibility of a Government, keeping the civil society on board, to formulate effective remedial legal measures. The draft national policy on ‘Intellectual Property’ of SA is one such initiative that needs to be applauded.

Surreptitious reported attempts of pharma MNCs, repeatedly, through their respective associations, backed by bagful of ‘resources’ of all kinds to thwart such patient centric moves of Governments, should be deplored with contempt that they deserve.

As Indian scenario is no different, it would perhaps be good to fathom, whether similar surreptitious and high resource-intensives moves are in progress in this country as well.

By: Tapan J. Ray

Disclaimer: The views/opinions expressed in this article are entirely my own, written in my individual and personal capacity. I do not represent any other person or organization for this opinion.

 

NDDS as New Drug: Good for Patients, Great for Pharma

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The Ministry of Health of India has reportedly decided to amend Rule 122 (E) of the Drugs and Cosmetics Rules, 1945 to categorize the New Drug Delivery Systems (NDDS), including ‘Controlled Release (CR)’ or ‘Modified Release (MR)’ formulations, whether a copy of studied and approved drugs or a new one, as ‘New Drugs’.

After the amendment, all vaccines and recombinant DNA (r-DNA) derived drugs would also fall under this nomenclature. Accordingly, to obtain ‘Marketing Approval’, such formulations would be subjected to requisite studies, including ‘Clinical Trials (CT), as specified for ‘New Drugs’ under the Drugs and Cosmetics Act of India.

It has however been clarified though, that these applications will not be treated as Investigational New Drugs (IND) and the Central Drugs Standard Control Organization (CDSCO) shall prepare appropriate regulatory guidelines for all NDDS formulations.

The main reason for the amendment is possibly much late realization of CDSCO that such formulations are vastly different from each other with respect to both efficacy and toxicity.

Besides, it has been widely alleged that some pharma companies in India, mainly to hoodwink the Drug Price Control Orders (DPCO) in the past, used to switch over from ‘Immediate Release (IR)’ formulations to products with CR/MR technology of the same molecule. However, that loophole has since been plugged in DPCO 2013, creating almost a furore in the industry.

A long overdue decision for patients’ health safety:

As stated earlier, this is indeed a long overdue decision of the Indian drug regulatory policy makers, solely considering patients’ health interest.

The primary reason being, any NDDS formulation with CR/MR technology is designed to release the drug substance in a controlled manner with high precision to achieve desired efficacy and safety, quite unlike its IR equivalent, if available in the market. It is important to note that inappropriate release of the drug in any CR/MR formulation would result in lesser efficacy or increased toxicity, jeopardizing patients’ health.

Process followed by US-FDA for CR/MR formulations:

In the United States, for marketing approval of such products, FDA usually requires submission of New Drug Applications (NDAs) providing details based on the evidence of adequate drug exposure expressed by blood levels or dose, and the response framework validated by clinical or surrogate endpoint(s).

US-FDA has three types of NDAs for MR drug products:

  • IR to CR/MR switch
  • MR/CR to MR/CR switch with unequal dosing intervals
  • MR/CR to MR/CR switch with equal dosing intervals

For switching from an IR to a CR/MR product, which is more common in India, the key requirement is to establish that the new CR/MR product has similar exposure course of the drug as compared to the previously approved IR product, backed by well-documented efficacy and safety profile. If not, one efficacy and/or safety trial would be necessary, in addition to three clinical pharmacology studies.

Good for patients:

The good news for patients is that, being categorized as ‘New Drugs’, all NDDS formulations, without any exceptions whatsoever, would henceforth obtain marketing approval only from the Drug Controller General of India (DCGI), after having passed through intense data scrutiny, instead of State Drug Authorities where getting a manufacturing license of such formulations is alleged to be a ‘child’s play’. Thus, with the proposed amendment, efficacy and safety concerns of CR/MR formulations are expected to be addressed adequately.

Great for Pharma:

Currently, while fixing the ‘Ceiling Prices (CP)’ under DPCO 2013, National Pharmaceutical Pricing Authority (NPPA) treats CR/MR formulations at par with IR varieties of the same molecules having the same dosage strength.

Thus, categorization of all NDDS formulations as ‘New Drugs’, irrespective of the fact whether these are copies of studied and approved drugs or new ones, would be lapped up by the manufacturers from product pricing point of view. All these formulations, after the proposed amendment, would go outside the purview of drug price control under Para 32 (iii) of DPCO 2013, which categorically states that the provisions of this order shall not apply to:

“A manufacturer producing a ‘new drug’ involving a new delivery system developed through indigenous Research and Development for a period of five years from the date of its market approval in India.”

A similar past issue still haunts:

Similar callousness was exhibited in the past, while granting marketing approval for a large number of highly questionable Fixed Dose Combination (FDC) drugs by the same drug regulators. Unfortunately, that saga is still not over, not just yet. 

All these irrational FDC formulations, even after being identified so by the Drug Technical Advisory Board (DTAB), have been caught in the quagmire of protracted litigations. Consequently, such dubious products are still being promoted by the respective pharma players intensively, prescribed by the doctors uninhibitedly, sold by the chemists freely and consumed by patients ignorantly. With ‘pharmacovigilance’ being almost non-functional in India, the harmful impact of these drugs on patients’ health cannot just be fathomed.

Conclusion: 

With the above examples, it is quite clear that technological precision of high order is absolutely imperative to manufacture any effective CR/MR formulation. In addition, stark regulatory laxity in the marketing approval process for these drugs is a matter of great concern.

In such a scenario, one could well imagine how patients’ health interests are being compromised by not formalizing and adhering to appropriate regulatory pathways for marketing approval of such drugs in the country, since decades.

That said, as the saying goes “Better Late, Than Never”. The ‘New Drug’ nomenclature of all CR/MR formulations or for that matter entire NDDS as a category, including vaccines and recombinant DNA (r-DNA) derived drugs, would now hopefully be implemented in India, though rather too late, a much welcoming decision nevertheless.

By: Tapan J. Ray

Disclaimer: The views/opinions expressed in this article are entirely my own, written in my individual and personal capacity. I do not represent any other person or organization for this opinion.

Discretionary ‘Non-Compete Clause’ in Pharma FDI: An Intriguing Decision

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As I had commented before, the MNC investors, while acquiring controlling stake in the Indian pharmaceutical companies, henceforth, would not be generally allowed to include any ‘non-compete clause’ in their agreement with the Indian promoters. However, this clause may be allowed only in special circumstances with the discretionary power of the Foreign Investment Promotion Board (FIPB).

Looking back:

While looking back, the decision to have a relook at pharma Foreign Direct Investment (FDI) by the Department of Industrial Policy and Promotion (DIPP), was possibly spurred by the following key apprehensions of the ‘Third World Network (TWN)’, following a series of takeovers of important Indian Pharma and Vaccine companies by the MNCs:

1. Takeover of large integrated Indian pharma players would ultimately leave behind mostly the smaller domestic companies operating in the lower end of the pharmaceutical value chain. This may compel India to compromise on need-based R&D and become completely dependent on MNCs for meeting the country’s drug requirements to respond effectively to various urgent needs, over a period of time.

2. Acquisitions of well-integrated domestic companies with technological capabilities by the MNCs could either fully eliminate or restrict the use of TRIPS flexibilities in the country, such as, Compulsory Licensing (CL) and patent challenges. For instance, immediately after its takeover by Daiichi Sankyo, Ranbaxy withdrew all the patent challenges against Pfizer’s blockbuster cholesterol reducing drug Lipitor.

3. Takeovers are easy ways to make effective use of a well-oiled marketing and distribution network established by large domestic companies to substitute low-cost medicines with higher-priced ones, including the patented drugs.

4. MNCs allegedly want to restrict the large Indian companies from entering into the regulated markets with their low-priced generic products of high quality standards, resorting to patent challenges and taking prime initiatives in Para IV filing in the United States. All these are believed to be posing an increasing threat to them over a period of time.

5. These acquisitions could ultimately result in high medicine prices. As quoted by TWN, according to the ‘Indian Pharmaceutical Alliance (IPA)’, Abbott increased the prices of medicines produced by Piramal Healthcare immediately after its takeover. The examples given are as follows:

The price of Haemaccel was Rs 99.02 in May 2009; by May 2011 it had gone up to Rs 215 – 117 percent increase in just two years. In another instance, the epilepsy drug Gardenal registered a price hike of 121 percent during the same period.

The new ‘Press Note’ :

Thereafter, much water has flown under the bridge and finally the ‘Press Note’ of DIPP on Wednesday, January 8, 2014 formalized the deliberations of the inter-ministerial group held in November 2013 that existing policy of 100 percent FDI in the brownfield pharmaceutical sector through FIPB approval route will continue, along with the rider of jettisoning the ‘non-compete clause’. Only change in the above ‘Press Note’ is that, the said clause may be allowed only in special circumstances with the discretionary power of the FIPB. 

However, 100 per cent FDI will continue to be allowed through automatic route in the Greenfield pharma projects.

An intriguing decision:

The DIPP ‘Press Note’ appears to be intriguing without understandable explanations and quite inconsistent with the reform measures already announced by the government thus far in many other areas.

More so, as I wrote before, no tangible assessment of impact of all M&As, so far taken place in India, has yet been done in a systematic manner.

The ‘non-compete clause’ being a standard feature, especially in brownfield Mergers and Acquisitions (M&A), justifiably restricts the promoters of the acquired companies from getting into the same business for a predetermined period of time.

Absence of this clause is expected to impact the valuation of the target companies significantly. Hence, some large Indian promoters had openly expressed their displeasure against such arbitrary measures and that too in quite specific terms.

More importantly, the absence of the ‘non-compete clause’ does not, in any way, effectively address those apprehensions, as mentioned above.

Conclusion:

Without any tangible evidence, it is a matter of conjecture now, whether the above apprehensions have any merits or not, in any case.

Be that as it may, the clumsy way this issue has been handled by the DIPP, especially since last couple of years, adds today even greater confusion to overall pharma FDI brownfield policy in India.

The issues related competition during any M&A process, as per statute, fall within the purview of the competition watch-dog of the country – the Competition Commission of India (CCI), which is expected to ensure that desired competition does in no way get compromised during M&As, including brand acquisitions, for the sole interest of consumers.

Despite statutory requirement to pass through CCI scrutiny in all mergers and takeover processes in India, the provision for discretionary decision to review the ‘non-compete cause’ by the FIPB, on case-by-case basis, without putting in place a set of fair and transparent guidelines for the same, appears indeed intriguing.

By: Tapan J. Ray

Disclaimer: The views/opinions expressed in this article are entirely my own, written in my individual and personal capacity. I do not represent any other person or organization for this opinion.