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Unlike China, IPR issues in India are being hijacked by the issue of ‘Access to Affordable Modern Medicines’.

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‘Incremental innovation’, related to the pharmaceutical industry, has become a point of raging debate in India. Over a period of time ‘not really a breakthrough’ but ‘incremental inventive steps’ to discover New Chemical Entities (NCE), which would offer significant benefits to the patients, are being considered as of critical importance by the stakeholders of the pharmaceutical industry, the world over. Such types of innovations are being termed as ‘incremental innovation’ , with underlying implied meaning of ‘frivolous’ nature of the innovation, to some section of people.

Most innovations in the pharmaceutical industry have always been ‘incremental’ in nature:

We have been observing such ‘incremental innovation’ from ‘Penicillin era‘ with different derivatives of penicillins, right through to ‘Quinolone era’ with ciprofloxacin, ofloxacin, sparfloxacin etc to ‘H2 receptor antagonists’ with cimetidine, ranitidine, roxatidine to ‘proton pump inhibitors’ with omeprazole, esomeprazole, rabeprazole etc.

We see such important ‘incremental innovation’ with many successful drugs across various disease areas. How many different varieties of ‘statins’, ‘betablockers’, ‘ace inhitors’ etc we have been prescribed by the medical profession over so many years with amazing results? This trend continues to offer better and better treatment options to the patients through the medical profession, across the world.

Unfortunately ‘incremental innovation’ has become a contentious issue in India. Section 3d of the Indian Patents Act 2005 has become a key barrier to continue with this process of innovation, in search of better and better medicines. ‘Breakthrough innovations’, which are very important though, are not as frequent in the pharmaceuticals industry, just as in many other industries, including Information technology (IT). ‘Incremental innovations’ are, therefore, the bedrock to improve the types of medications to treat various disease conditions.

A quick comparison with China:

As reported by the Department of Commerce of the U.S Government, domestic consumption of medicines both in India and China is around 70% of the domestic productions of the respective countries. These medicines are available at a very reasonable price to the local populations.

Fuelled by strong domestic demand, coupled with exports to other countries, the pharmaceutical industry in both India and China are showing impressive growth, China being ahead of India in both pace of growth, as well as in terms of market size.

Why some key IPR issues, like ‘incremental innovation’, are facing stiff opposition in India when it is not so in China?

Intellectual Property Regime (IPR) is now in place in both the countries. However, criteria of ‘patentability’, as mentioned above, still remain a contentious issue in India. The issue of ‘access to affordable modern medicines’ is being unnecessarily dragged into the discussion of IPR related issues, where resolution of each of these two issues warrants totally different types of approaches.

The issue of ‘access’ and ‘affordability’ of medicines must be addressed with all earnestness by all concerned, but surely, I repeat, with a different kind and sets of measures. Mixing IPR issues with the issue of ‘access to affordable modern medicines’ sends a wrong message, which would mean that IPR is the cause of this problem in India or in other words, IPR has aggravated this problem since January 1, 2005, the day the new Patents Act came into force in India. This definitely is not the reality in our country.

As I have been saying repeatedly, why then from 1972 to 2005, when pharmaceutical products patents were not being granted, the access to affordable modern medicines were denied to 650 million population of India? The solution to this problem, in my view, lies in effectively addressing the issue of healthcare infrastructure, healthcare delivery and healthcare financing (health insurance for all strata of society) with an integrated approach and in tandem through Public Private Partnership (PPP) initiatives.

Is this issue cropping up because of intense pressure and public opinion created by over 20,000 small to medium scale producers of generic drugs, who have grown within the industry in a much protected environment created by the Government of India and had thrived in business by introducing copycat versions of innovators drugs for over three decades, during the old paradigm?

Large Indian companies are by and large in favour of IPR:

The large Indian Pharmaceutical Companies like Piramal Healthcare support the new IPR regime, envisaging the benefits that it will bring to the country in general and the domestic pharmaceutical industry in particular, in medium to longer term. These benefits will not only come from the fruits of their R&D initiatives, but also through various emerging opportunities of business collaboration in areas of their respective strengths, with the Multi National Corporations (MNCs) across the globe.

The Indian pharmaceutical industry, which had registered a double digit CAGR growth rate over the past decade, is poised to record a turnover of U.S$ 20 billion by 2015, as reported by Mckinsey & Co. Even at that time patented products are expected to contribute just about 10% of the total market and balance 90% of the market will continue to be dominated by low cost branded generic drugs.

Indian Pharmaceutical Industry has potential to emerge as an international force to reckon with. But will it..?

Within knowledge based industries, after meteoric success of the Information Technology (IT), Indian pharmaceutical industry armed with its fast growing biotech sector, has all the potential to be a major global force to reckon with. It just needs to foster the culture of innovation. One will feel happy to note that the Department of Pharmaceuticals (DoP) of the Government of India has started taking, at least, some initiatives towards this direction.

The key issues of ‘patentability‘ together with lack of a strong regulatory framework for effective patent enforcement and data protection are becoming barriers to development of international collaboration in the space of pharmaceutical research and development in India.

Why is China different?

From the beginning of 90’s China initiated its reform processes in the IPR area, which may not be perfect though, as yet. However, since 1998 with stricter regulations on pharmaceutical manufacturing and introducing Drug Management Law, China to a great extent regulated entry of ‘fringe players’ in the pharmaceutical business. It enacted TRIPS compliant patent laws in 2002, extending pharmaceutical product patent for 20 years and regulatory data protection (RDP) for 6 years.

Currently China is focusing more on biotech drugs and has wheezed past India in terms of success in this important sector of the healthcare industry, though they have still miles to go to catch up with the developed world in this space. With the creation of innovative environment within the country, China is fast getting international recognition and collaboration, in genomic and stem cell research and technology.

In the pharmaceutical sector also China has brought in significant regulatory reforms since 2001. Because of its stronger IPR regime than India and other important regulatory reform measures that the country has been undertaking, China is racing past India to become one of the largest markets of the global pharmaceutical industry. In this process, China is attracting far more foreign direct investments (FDI) than India, almost in all verticals of the pharmaceutical industry, from R&D, clinical trials to contract research and manufacturing.

Where India scores over China:

Quality of co-operation and relationship between global pharmaceutical companies and the domestic Chinese pharmaceutical industry is believed to be not as good as what is prevailing in the Indian pharmaceutical industry. There are many reasons for such difference, language being the key reason. In China, English is still not a very popular language, in sharp contrast to India. This limits effective human interaction with the foreigners in China. In the area of, especially, pharmaceutical chemistry, Indian scientists are considered to have a clear edge over their Chinese counterparts.

Chinese policy makers are gradually trying to shed off their protectionist’s attitude in the globalization process.

Steps taken by China to encourage innovation are far more encouraging than what is being done in India. Global pharmaceutical companies are finding China more attractive than India to expand their business. As the saying goes, ‘proof of pudding is in its eating’, predominantly because of this reason, FDI for the pharmaceutical sector is coming more in China than in India.

Instead of creating drivers, is India creating barriers to innovation?

It is indeed unfortunate that the Indian law differentiates innovation based on its types and denies grant of patent for ‘incremental innovation’, which is the bedrock of progress for the pharmaceutical industry. For this reason section 3d of Indian Patent Acts 2005 does not consider the ‘salts, esters, polymorphs and other derivatives of known substances unless it can be shown that they differ significantly in properties with regard to efficacy’, patentable.

Strong propaganda campaign unleashed by the vested interests alleging rampant violation of section 3d by the Indian Patent Office (IPO) is another case in point. Interestingly the aggrieved parties decided to fight this issue through media, avoiding the legal route for redressal of their grievances. They on record cited a hilarious reason for the same that no lawyer in India is coming forward to fight their cases, at the behest of the MNCs.

The way forward:

To encourage innovation within a TRIPS compliant IPR regime, as one sees in China,
stereotyping innovations as ‘breakthrough’ or ‘incremental’ will dampen the spirit of innovative culture within the country. Inventive steps in an innovative process of a pharmaceutical product are directed to satisfy some important needs of the patients. As I said before, most innovations, which are an integral part of the progress of this industry, have been ‘incremental’ in nature. Thus ignoring ‘incremental innovation’ in India could be counterproductive, in more than one way.

Investments required towards R&D that a ‘breakthrough type’ innovation would warrant are very high. Indian pharmaceutical industry will have a serious limitation in that direction. The path of ‘incremental innovation’ ably backed by a strong IPR enforcement process, would, I reckon, be the best way forward for the Indian players to compete effectively with global innovator companies, leave aside their Chinese counterparts.

Any innovation, which has gone through inventive steps, even if it is ‘incremental’ in nature, should not be considered ‘frivolous’. It demeans the very process of innovation.

Raising various public sensitive and emotive issues on product patents and combining it with issues of ‘access’ and ‘affordability’ of modern medicines, some powerful lobby of vested interests may seriously retard the progress of India. The Government of India should recognize that it will very adversely affect the country in its pursuit of excellence in the field of research and development, in medium to longer term.

Such emotive misconceptions are compelling the policy makers to divert their attention from the root cause, which I have enumerated above, of the issue of ‘access to affordable modern medicines’ to the vast majority of Indian population.

In my earlier article, I suggested a public private partnership (PPP) model to address these critical healthcare issues. Examples of such PPP are already there in India in states like Tamil Nadu, Andhra Pradesh and Karnataka.

Astute policy makers of the Government of India, I am sure, will soon realize that encouraging, rewarding and protecting patents through a robust TRIPS compliant IPR framework would enable India to place itself ahead of China, as the choicest destination for the global pharmaceutical industry.

By Tapan 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.

From ‘Blockbuster Drugs’ to ‘Personalized Medicines’ – will it revolutionize the way the patients will be treated tomorrow?

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Financial Times quoted Jeff Kendler, the CEO of Pfizersaying, “the era of dependence on a single or a couple of blockbuster drugs should be over. Lipitor sells U.S$ 12 billion a year. You can’t build a company predicted on the belief that you are going to find such a drug.”The argument is robust, what then are the alternatives?Rapid strides in pharmacogenomic bring in a promise of radically different way of treating diseases, as major pharmaceutical companies of the world make progress in developing much more effective medicines designed to target smaller populations. These medicines are termed as ‘personalized medicines’ and are expected to be an effective alternative to now quite unwieldy ‘blockbuster drugs’ business model.

In what way ‘Personalized Medicines’ will be different?

With ‘Personalized Medicines’ 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. Pharmacogenomic tests like, sequencing of human genome will determine a patient’s likely response to such drugs.

These are expected to offer more targeted and effective treatment with safer drugs, and presumably at a lesser cost. Such medicines will also help identify individuals prone to serious ailments like, diabetes, cardiovascular diseases and cancer and help physicians to take appropriate preventive measures, simultaneously. ‘Personalized medicines’ in that process will focus on what makes each patient so unique, instead of going by the generalities of a disease.

To give a 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.

‘Personalized medicines’, therefore, have the potential to bring in a revolutionary change the way patients are offered treatment by the medical profession. Genomic research will enable physicians to use a patient’s genetic code to arrive at how each patient will respond to different types of treatments.

In the field of cancer, genetic tests are currently being done by many oncologists to determine which patients will be benefitted most, say by Herceptin, in the treatment of breast cancer.

What is then the aim of ‘Personalized Medicines’?

The aim of ‘personalized medicines’ is 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, by 2010.

Expected benefits from ‘Personalized Medicines’:

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 Health care: ‘Personalized Medicines’ will enable the physicians to prescribe ‘the right dose of the right medicine the first time for everyone’. This would give rise to much better overall healthcare.

Role of Pharmaceutical and Biotech companies:

Many research based pharmaceutical and biotechnology companies have taken a leading role towards development of ‘personalized medicines’ in line with their key role as healthcare enterprises. India is also taking keen interest in this science.

Some important issues:

However, there are some ethical and social issues in the development of ‘personalized medicines’ primarily in the area of genetic testing and consideration of race in the development of such medicines, which need to be effectively addressed, sooner.

Can it replace the‘Blockbuster Drugs’ business model?

Realization of deficiencies in the economics of ‘block buster drugs’ R&D business model, has made ‘personalized medicines’ a reality today.

Improved efficacy and safety of treatment with ‘personalized medicines’ will prove to be cost-effective in healthcare systems. Smaller and exclusive markets for ‘personalized medicines’ are expected to be profitable for the pharmaceutical companies. But such smaller segmentation of the market may not leave enough space for the conventional ‘blockbuster model’, which is the prime mover of the global pharmaceutical industry, today.

Reports indicate that some renowned global pharmaceutical companies like, Roche, AstraZeneca, GlaxoSmithKline are making good progress towards this direction through collaborative initiatives.

Approximate cost of ‘Genome Sequencing’:

When human genome was first sequenced, the reported cost was staggering U.S$ 3 billion. However, with the advancement of technology, it came down to U.S$ 1 million, last year. Currently, the cost has further come down to U.S$ 60,000. With the rapid stride made in the field of biotechnology, combined with the economies of scale, cost of such genetic tests is expected to be around U.S$ 1,000 in near future, making it possible for people to obtain the blue print of their genetic code.

Savings on cost of Clinical trials with ‘Personalized Medicines’:

Genome sequencing will help identifying a patient population, which will be far more likely to respond positively to the new treatment. In that process, if it reduces costs of clinical trial by even 5%, expected net savings for the industry towards clinical trial have been reported to be around U.S$ 5 billion.

With ‘personalized medicines’ the innovator companies will be able to significantly reduce both time, costs and the risks involved in obtaining regulatory approvals and penetrating new markets with simultaneous development of necessary diagnostic tests. Such tests will be able to identify patients group who will not only be most likely to be benefitted from such medicines, but also will be least likely to suffer from adverse drug reactions.

Therefore, considerable cost advantages coupled with much lesser risks of failure and significant reduction in the lead time for clinical trials are expected to make ‘personalized medicines’ much more cost effective, compared to conventional ‘blockbuster drugs’.

Innovative and cost effective way to market ‘Personalized Medicines’:

With ‘personalized medicines’ the ball game of marketing pharmaceuticals is expected to undergo a paradigm shift. Roche’s model of combining necessary diagnostic tests with new drugs will play a very important role in the new paradigm.

Roche is ensuring that with accompanying required diagnostic tests, the new oncology products developed at Genentech can be precisely matched to patients.

Can ‘Personalized Medicines’ be used in ‘Primary Care’ also?

To use ‘personalized medicines’ in a ‘primary care’ situation, currently there is no successful model. However, it has been reported that in states like, Wisconsin in the U.S, initiative to integrate genomic medicines with ‘primary care’ has already been undertaken. Scaling-up operations of such pilot projects will give a big boost to revolutionize the use of ‘personalized medicines’ for precision and targeted treatment of the ailing population.

In my view, there does not seem to be any possibility of looking back now. The robust business model of ‘personalized medicines’, is now the way forward, as much for the industry as for the patients. It is a win-win game.

By Tapan 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.

Improving ‘Access to Modern Medicines’ in India –Public Private Partnership (PPP) is the way forward.

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Despite various measures being taken by the Government of India (GoI) from time to time, around 65% of Indian population are not having access to modern medicines. It appears, GoI is of the view that the reason for poor ‘access to modern medicines’ to a vast majority of our population is intimately linked to the issue of ‘affordability of medicines’.To make medicines affordable to the common man, the Government took a radical step in 1972 by passing a law to abolish products patent in India. The change in paradigm at that time, encouraged domestic pharmaceutical players to manufacture and market even those latest and innovative drugs, which were protected by patents, n many countries of the world. The new ball game enabled the domestic players to highly specialize in ‘reverse engineering’ and launch generic versions of most of the New Chemical Entities (NCEs)at a fraction of the innovators price, in India.This shift in Paradigm in 1972, catapulted the Indian domestic pharmaceutical industry to a newer orbit of success. India in that process, over a period of time, established itself as a major force to reckon with, in the generic pharmaceutical markets of the world. Currently, the domestic pharmaceutical industry in India caters to around one third of the global requirement of generic pharmaceuticals.

From 1972 to 2005 domestic Indian pharmaceutical companies focused on replicating all most all blockbuster drugs, like for example, major Cox2 inhibitors (Merck and Pfizer), Viagra and Lipitor (Pfizer) etc, to low price generic substitutes and that too just within a year or two from the date of first launch of these products in the developed markets of the world.

In 1972, the Market share of the Indian domestic companies, as a percentage to turnovers of the total pharmaceutical industry of India, was around 20%. During the era of ‘reverse engineering’, coupled with many top class manufacturing and marketing strategies, domestic Indian pharmaceutical players wheezed past their multinational (MNCs) counterparts in the race of market share, exactly reversing the situation in 2009.

‘Reverse engineering’ was one of the key growth drivers of domestic pharmaceutical industry during this period. In its absence, during post IPR regime, the growth rate of branded generic industry is not expected to be as spectacular. However, the low cost ‘essential medicines’ will continue to be produced and marketed in India in future, as well.

Be that as it may, from 1972 to 2005, India could produce and offer even the latest NCEs, at a fraction of their international price, to the Indian population. There were as many as 40 to over 60 generic versions of each successful blockbuster drug of the world, in India. Cut-throat competition was intense and still it is, which keeps the average price of such medicines well under control. To further tighten its grip over pharmaceutical products pricing, GoI imposed stringent price control and price monitoring mechanism simultaneously, which are in place even today. Despite competitive pricing pressure coupled with Government price control, over nearly four decades, with a key policy focus on ‘affordability of medicines’, why then ‘access to modern medicine’ remained abysmal for a vast majority of the population of India?

To address this vexing problem, Industry Associations reported to have suggested a policy shift towards public-private-partnership (PPP) model to the Ministry of Chemicals and fertilizers in 2006-07. At that time, the Associations seem to have offered that the Pharmaceutical Industry will supply to the GoI the essential medicines at 50% of their Maximum Retail Price (MRP), to cater to the need of the common man, especially those who are below the poverty line (BPL).

However, to make this proposal effective there is a fundamental need for the Government to quickly initiate significant ‘capacity building’ exercise, initially in our primary and then in the secondary healthcare value chain. Towards this direction, the Federation of Indian Chambers of Commerce and Industry (FICCI) reported to have suggested to the Government for an investment of around US$ 80 billion to create over 2 million hospital beds.

Frugal budget allocation (1.12%) of the GoI towards healthcare as % of GDP of the country, suggests that Government is gradually shifting its role in this very important area, primarily from healthcare provider to healthcare facilitator for the private sectors to develop it further. In such a scenario, it is imperative for the government to realize that the lack of even basic primary healthcare infrastructure, leave aside other incentives, impede effective penetration of private sectors into semi-urban and rural areas. PPP model should be worked out to address such issues, effectively.

I have highlighted the remedial measures to be taken to address this situation in my article, which can be read by clicking on the following link:

http://www.tapanray.in/profiles/blogs/65-of-indians-do-not-have

Over 70 percent of our population are located in rural India. A relatively recent study indicates that despite some major projects undertaken by the Governments, like National Rural Health Mission (NRHM), about 80 percent of doctors, 75 percent dispensaries and 60 percent of hospitals are located in urban India. Another recent initiative taken by the Department of Pharmaceuticals (DoP) called ‘Jan Aushadhi’ is also orientated towards urban and semi-urban India.

I had deliberated upon the ways to increase penetration of ‘Jan Aushadhi’ in rural India, in another article, which can be read by clicking on the following link:

http://www.tapanray.in/profiles/blogs/jan-aushadhi-medicines-for

The net result of such policy initiatives, denies over 65 percent of Indian rural population from having access to quality healthcare services. Such lack of focus on rural areas, perhaps will explain the reason why only 35 percent of Indian population is having access to modern medicines.

Instead of trying to find a solution for this alarming ‘access to medicines’ problem, by limiting focus mainly on the issue of ‘affordability’ of medicines, for several decades, the Government is doing a great disservice to the common man, mainly located in the rural and semi-urban India. It is now high time that the GoI analyzes the available data to address the root cause of poor healthcare delivery, infrastructure and almost total lack of healthcare financing for all strata of Indian society.

Let me hasten to add that in no way I am trying to say that ‘affordability of medicines’ is no issue in India. All I am saying is that an integrated approach towards the root causes will quite effectively take care of ‘affordability’ issue and NOT the vice versa.

Even a problem of such magnitude can be converted into an opportunity. India can certainly be made a global hub for quality and affordable healthcare services, flashes of which we see in medical tourism initiatives.

Therefore, to address the acute problem of ‘access to modern medicines’ to a vast majority of the Indian population, GOI should reach all out to attract significant private and even foreign direct investments (FDI) through innovative Private Public Partnership initiatives. A strong will to have an ‘out of box’ solution to this critical problem is the crying need of the hour.

By Tapan 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.

Simmering discontentment in the functioning of the Indian Patent Office (IPO) – urgent need to tighten the ‘loose knots’ in the system.

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Indian Patent office (IPO) though is headquartered at Kolkata, because of some unknown reason, the office of the Controller General of Patents, Designs and Trade Marks (CGPDTM)is located in Mumbai with other two offices at New Delhi and Chennai. Moreover, the office of the ‘Patent Information System’ is located at Nagpur. Scattered location of the IPO, many believe, could be an impediment in ensuring uniformity in operations between all its units. Such an opinion is debatable though, I shall not deliberate on this issue in this article.The point that I shall argue upon is the crying need in the IPO to tighten 15 identified ‘loose knots’in its operation, which are causing considerable concern within stakeholders, who are casting serious aspersions in its efficiency.There are some areas where our IPO is doing quite well. I shall also dwell upon those areas before highlighting the areas of improvements.

The new IPR regime came into force from January 1, 2005. Even 4 years down the line, the IPO still remains grossly understaffed. Growing dissatisfaction with the current functioning of the IPO is fast sapping initial enthusiasm of the innovators on the new IPR regime in the country. ‘The glass’ now perpetually looks as ‘half empty’, as it were and will continue to do so, if corrective measures are not taken, forthwith.

The information available from the IPO website indicates that all the four centers put together, there are just 134 Examiners, 31 Assistant Controllers, 4 Deputy Controllers and 1 Joint Controller. Staff attrition rate within the IPOs has been reported to be reasonably high, which incidentally appears to be one of the key issues of their inefficiency. These trained IPO personnel are being poached mainly by the private sector enterprises, offering significantly higher remuneration. At the same time, there appears to be 3 times increase in the number of applications filed in the last five years, complicating the situation further.

The silver lining is, despite all these, the performance of IPO quantitatively speaking, is really not as poor. Around 11,000 patents were granted by the IPOs in 2007-08. This number, when translated into average number of patents granted per day, works out to be 50. This figure, when viewed in terms of number of patents granted against the number of applications made, compares reasonably well with the developed nations of the world like, USA and EU. It is worth noting that in those countries the product patent regime is in place, since long.

Indian Patent Act 2005 is believed to be more stringent than the prevailing Patent Acts in the USA or EU. It is good to note that quoting the Department of Industrial Policy and Promotion (DIPP) it has been reported that each Indian Patent Examiner examines about 100 applications per annum against 50 to 80 in the USA and the EU. This is indeed laudable.

Indian Patent Office is currently going through ‘capacity building’ exercises. The efforts being made towards this direction are expected to make the IPOs more efficient, hopefully, in pursuit of excellence.

India has recently been approved as an International Searching and Preliminary Examining Authority under the Patent Cooperation Treaty (PCT). This, in turn, will significantly increase the workload of the IPO.

When we are mentioning about the PCT, perhaps it will not be out of place to say that some section in India argues in favour of the need to include the International Nonproprietary Names (INN) in the title of pharmaceutical patent applications by the IPO. However, as INNs are not required in the title of patent applications under Article 27(1) of the PCT, such a requirement, in my view, could appear to conflict with the PCT.

Thus, it has now become more essential that the Controller General of Patents, Designs and Trade Marks (CGPDTM) tightens the ‘loose knots’ in the IPO system, immediately, to make it efficient and effective.

In this article I shall not go into much debated and discussed, ‘Indian Patent Manual’ issue. I shall only submit the following 15 suggestions towards achieving the above objective:

1. To effectively cope with its growing workload, the Patent office should upgrade its IT facilities and ensure that patent examiners are trained to handle the filing and prosecution of patent applications.

2. Electronic-filing of patent applications has been introduced, but there is no facility of paying the fees online by credit card. This facility should be introduced to make it more convenient for applicants to file patent application online. This will also add speed to the process.

3. Electronic prosecution of patent applications should be introduced to make the patent prosecution paperless and more efficient.

4. To encourage applicants to file applications electronically, incentives such as reduced fees should be offered to applicants who file their applications electronically.

5. The Patent Office has in the past experienced problems in locating and managing physical application files. It is therefore recommended that the Patent Office introduce systems for better management and storage of physical files. Using a system of bar codes on the physical files could be one such system.

6. The Patent Office should digitize all of its physical files so that file histories of each application will be available online.

7. The Indian Patents Database and the Indian Designs Database to be released without further delay.

8. An efficient system to be introduced to ensure timely publication of all patent applications and proceedings that are eligible for publication in the technical journal of the IPO. Currently there is inordinate delay, for example Delhi Patent Office is now publishing applications for 2005

9. Patent applications that are published in the official gazette have minimal information. It is therefore recommended that the official gazette include more details of the applications in order to avoid any frivolous or unnecessary oppositions being filed.

10. The Patent office does not have any centers, which provide assistance to applicants for filing or prosecuting applications. It is therefore recommended that assistance centers should be established to help applicants to file and prosecute applications in India.

11. Clear guidelines to be issued for conducting pre-grant and post grant opposition proceedings. Presently they are being handled in an arbitrary manner

12. In order to avoid any frivolous pre-grant opposition during the prosecution of the application, the Patent Office should introduce a fixed fee that has to be paid to the Patent Office at the time of filing of a pre-grant opposition. This will help to avoid frivolous delays in the grant of the patent.

13. In order to introduce an efficient system of patent prosecution, it is recommended that the Patent Office adjust patent term to compensate patentees for any delay in the grant of the patent that reduces the term of the patent, when such delay is caused solely by the Patent office.

14. Decision making and its communication to all concerned to be made faster at the IPO. A system to be instituted for issuing the operative part of the decision first, followed by details of the decision taken. These should be advertised immediately in the technical journal to close proceedings at the earliest. Delays are leading to extensive delays in the grant of patents even if the proceedings have been concluded (opposition or otherwise) attracting serial and frivolous pre-grant oppositions. Such delays are also preventing the patent applicants to get their grants and are, therefore, unable to initiate infringement proceedings against infringers quickly, defeating the very purpose of the patent and trademark system.

15. The timeline for an application to be taken up for examination to be clearly defined. Currently, there is no time defined for taking up the applications for examination.

It will indeed be great, if the DIPP and the IPO take note of these suggestions and formalize a process within the IPO to address these issues. A growing discontentment in several areas of operation within the IPO is brewing, both in India and abroad. If such discontentment increases further, it may have serious impact on the credibility of the new IPR regime in India.

Will the Government of India want that to happen? I hope not.

By Tapan 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.

Global Pharmaceutical Industry: Capturing the micro-trends, having potential to become future mega-trends.

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The situation:Almost the entire developed world is reeling under recession… Slowed down business growth… Gradual drying up of research pipeline… Skyrocketing R&D cost… Pressure on product price …Market capitalization going south… Cut throat market competition… Depressed business sentiments…Past M&As are no longer yielding desired results… Global pharmaceutical companies are to lose nearly US$100 billionin sales as many blockbuster drugs are set to go off-patent over the next five years. Sounds quite like a dooms day! No, in my view, the industry including in India, is going through a transformation process. Is any trend emerging through this process? Yes, of course. Let us now try to capture these micro-trends, which have a potential to become tomorrow’s mega-trends.The response:

Before we delve into that, let us see how the global pharmaceutical industry has been responding to such a situation during this trying time. A strong instinct of survival, in such a situation, will undoubtedly prevail. This instinct is driving some of the large companies, with reasonably deep pocket, towards consolidation. This is happening through mergers, acquisitions and even through hostile takeovers.

Globally, from 2008 to date about 58 mergers and acquisitions have taken place, mega, big or small. Amid the biggest financial crisis since the Great Depression, Pfizer Inc., Merck & Co. and Roche Holding AG could raise a mindboggling amount of US $155 billion to expand and survive in their business.

This month Merck & Co acquired Schering Plough for US$41.1 billion in a cash-and-stock deal that will create the second largest pharmaceutical company in the USA. Richard Clarke, Chairman and CEO of Merck said that the merged company would benefit from the rich R&D pipeline, a significantly broader product portfolio and a wider presence in the global markets.

Besides enriching R&D pipeline and achieving substantial revenue synergy, the merged entity is expected to achieve significant cost synergy of about US$ 3.5 billion by 2011. This deal comes just six weeks after Pfizer Inc swallowed up Wyeth for a record US$68 billion. This move of Pfizer’s is not only expected to enlarge its product portfolio, but also to significantly reduce its dependence on Lipitor, which goes off-patent in 2011.

Just after these, Roche clinched a deal to acquire 44% of Genentech Inc with US$ 46 billion. In 2008 almost 75% of Pharmaceuticals sales of Roche were contributed by the products brought in from Genentech stable. This signifies the importance of acquisition of Genentech by Roche.

Will the M&A strategy be viable in the longer term?

All these companies are basically looking for various avenues to tide over the impending crisis, especially in their R&D pipeline by acquiring other suitable companies. However, looking at the past records, it appears that many of these mega mergers may not fetch a sustainable longer term gain. Insatiable desire to merge or acquire another company for various reasons, keep coming back to these companies after a little while, once again. Pfizer, GlaxoSmithKline (GSK), Sanofi Aventis etc will stand as good examples. Some believe that merging just for the sake of width and depth of the R&D pipeline could have its underlying risks, as business compulsion of two different research cultures to come together may cause a serious adverse impact on ‘the climate of innovation’. Such a congenial environment very often plays a critical role in the process of discovery of breakthrough drugs. Probably because of this reason many questioned whether Genentech’s productive R&D culture can flourish under Roche’s full control.

Let me now deliberate on emerging micro-trends in the global pharmaceutical industry. All these micro-trends, in my view, are having potential to get transformed into mega-trends in not too distant future.

Micro-trend 1: Reorganization of large R&D set-ups into smaller units to foster innovation.

Despite creating large R&D set-up through mega mergers, we have also witnessed that some pharmaceutical majors like, GSK, are reorganizing the large R&D set-ups into smaller units to foster innovation, under the leadership of Andrew Witty, the current CEO. This strategy is expected to reap rich harvest.

Micro-trend 2: From concentrating exclusively on innovative medicines to expansion into low risk generic medicines.

Not so long ago Global R&D companies focused only the business of innovative prescription medicines. Low margin generic business was not their cup of tea. Today the scenario has made a 180 degree shift. Low risk, low cost and high volume turnover of generic business is now attracting many R&D based companies.

We are now witnessing another model of mergers and acquisitions, which was pioneered by Novartis some time back. An increasing number of companies are planning to spread their business in less risky generics pharmaceutical businesses. This business model will not require going through lengthy R&D and ever increasing stringent regulatory approval process for their entire product portfolio, in the developed markets of the world. Following this business model Daiichi Sankyo acquired Ranbaxy, in India. Sanofi-Aventis is in the process of acquiring the generic company of Eastern Europe, Zentiva. GSK acquired Pakistan operations of Bristol Myers Squibb, other generic business in South Africa and Egypt and mature products business of UCB in some selected markets of the world. Pfizer has also recently made somewhat similar move in India by entering into a strategic alliance with Aurobindo drugs for sourcing generic formulations for their global markets.

Micro-trend 3: From only prescription medicine business to businesses like, OTC, Nutrition, Diagnostics, Animal Health products, to reduce the business risk.

Some research based companies are now trying to somewhat insulate themselves from high risk R&D business by focusing on, besides generics, other low risk areas like, over the counter medicines (OTC), nutrition products, diagnostics, animal health businesses etc. Companies like, GSK, Pfizer, Roche will be good examples for such strategy.

Micro-trend 4: From sharp business focus mainly on top 10 markets of the world to extension of focus on key emerging markets of the world.

Not so long ago, large multinational companies (MNCs) used to have major focus on top 10 markets of the world. Now a days many of these companies are extending their business focus on emerging markets, like, India, Brazil, China, Russia, Turkey, Mexico etc, which are riding high on a very strong growth curve, unlike USA, Europe or Japan.

In these markets to gain a critical mass, the MNCs will need to enter the generic business and the best way to do it is by acquiring a good generic company. For this reason, in India we may soon start witnessing MNCs acquiring large to mid-size domestic Indian pharmaceutical companies. Daiichi Sankyo has just shown the way by acquiring Ranbaxy in India. This process has not started in full swing, as yet, probably because of expected very high valuation for their respective companies, by the Indian promoters following Ranbaxy deal.

Micro-trend 5: Gradual shift in R&D focus from infectious to chronic to preventive (vaccines) to personalized medicines.

Global pharmaceutical industry got a head start with the innovative drugs to treat infectious diseases. It gained growth momentum by changing its R&D focus on non-infectious chronic disease areas. We now observe a micro-trend to move towards preventive therapy like vaccines even for cervical cancer. With the emergence of stem cell research in the USA and with the rapid progress of RNAi technology, very soon we may enter into the area of personalized medicines, as well. Thus, in my view preventive and personalized medicines will be the high growth pharmaceutical business of future. At that time, the pharmaceutical business model will change significantly though, to adapt to the changing business environment.

Is the era of Blockbuster drugs over?

Let me now reiterate that contrary to the belief of many, future R&D pipelines of the global pharmaceutical companies are not too dry, either. I am not in agreement with many pontificating that the future of blockbuster drugs is over. Published reports indicate that 581 primary-care driven NCEs covering disease areas like, Central Nervous System (CNS), Cardiovascular, Vaccines, Respiratory, Anti-infective etc, are currently in Phase I and Phase II stages. Similarly 637 specialist-care driven NCEs covering disease areas like, Oncologics, Autoimmune agents, HIV, Immunostimulants, Alzheimer, Immunosuppressive etc, are also in phase II and Phase III clinical trial stages. Altogether 1218 NCEs are currently in Phase II and Phase III stages of clinical trial.

Indian Pharmaceutical Companies – are they in a dilemma?

In sharp contrast to prevailing scenario in the global pharmaceutical industry, in India, after a paradigm shift to a new IPR regime, the domestic pharmaceutical industry seems to be in a great dilemma, to some extent they seem to be in a state of identity crisis. Many domestic companies seem to be getting too overawed by the change in their ‘reverse engineering’ business model, as a fuel for growth.

At this stage, it is very important for all these companies to appropriately change their business model based on their competitive strength and quickly adapt to the new paradigm. Instead of considering the research based global companies as competitors, they should look at them as potential collaborators for various outsourcing opportunities; starting from contract research, contract manufacturing to contract marketing, as well. Why not?

Need to move from fragmentation to consolidation for leveraging the business growth:
Indian pharmaceutical industry is now highly fragmented. This is the high time to move away from fragmentation to consolidation, which will help the domestic pharmaceutical industry to attain adequate scale to invest significantly in their well considered business model to fuel the growth engine.

India is making progress in pharmaceutical R&D:

In India some domestic pharmaceutical companies have made significant progress towards R&D output. Published information indicates that Biocon, Piramal Healthcare, Glenmark, Ranbaxy and Suven Life Sciences have between them 45 NCEs. Most of these fall under oncology, infectious, metabolic and respiratory disease areas. Out of these 19 NCEs are in pre-clinical and the balance are in Phase I& Phase II clinical trial stages.

To sum-up, I witness the following micro-trends globally, which we should keep tracking with interest:

 Reorganization of large R&D set-ups into smaller units to foster innovation.

 From concentrating exclusively on innovative medicines to expansion into low risk generic
medicines.

 From only prescription medicine business to businesses like, OTC, Nutrition, Diagnostics, Animal
Health products, to dilute the business risk.

 From sharp business focus mainly on top 10 markets of the world to extension of focus on key
emerging markets of the world.

 Gradual shift in R&D focus from infectious to chronic to preventive (vaccines) to personalized
medicines.

WILL THE BALL GAME BE QUITE DIFFERENT TOMORROW?

By Tapan 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.

‘Jan Aushadhi’ – ‘Medicines for the common man’ project of DoP is a great idea – is it on course?

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In mid 2008 The Government of India created a new department, ‘The Department of Pharmaceuticals’ (DoP), under the Ministry of Chemicals and Fertilisers. The new department came out with its following vision statement:“To enable Indian pharmaceuticals industry to play a leading role in the global market and to ensure abundant availability, at reasonable prices within the country, of good quality pharmaceuticals of mass consumption.”‘Jan Aushadhi’ – ‘Medicines for the common man’:

In this article, I shall submit my point of view on the second part of the above vision statement, which articulated the responsibility of the department to ensure availability of affordable modern medicine for ‘mass consumption’.

When over 70% of Indian population lives in rural areas, one can quite easily assume that such medicines will be available adequately in rural areas of the country, as well. Obviously the question that follows this admirable vision statement is how?

To respond to this question one will try to address the following two basic strategic issues:

1. Create a workable and viable business model, which can be gradually developed over a period
of time to deliver the promise

2. Create a robust supply chain network to ensure easy access of these medicines to the common
man, located even in remote rural areas.

The first part of the strategic issue has been well addressed by the DoP, within a very short period, by creating ‘Jan Aushadhi’, the medicines for the masses. Importantly, the second point, which will determine the success of the project, has not been clearly articulated.

The objectives of the ‘Jan Aushadhi’ were stated as follows:

1. To promote awareness for cost effective quality generic medicines. (However, how exactly this will be done, is yet to be known.)

2. To make available unbranded affordable quality generic medicines through private public partnership (PPP). (I support this objective from procurement perspective. However, so far as the delivery of these medicines to the common man is concerned, I would argue below:why do we reinvent the wheel?)

3. To encourage doctors in the Government Hospitals to prescribe such cost effective quality
generic medicines. (This is again just a statement of intent without considering the critical issue of its implementation in the predominantly branded generic market, like India.)

4. To help patients save significantly towards medicine cost with ‘Jan Aushadhi’ outlets.

5. A national help line is believed to be able to increase awareness level of this initiative.

The statements of intent of the DoP also highlight that the State Governments, NGOs and Charitable bodies will be encouraged to set up such generic medicine shops. It also states that the existing outlets of the Government and NGOs may also be used for this cause.

This particular decision of DoP, as I stated before, appears to be an attempt to ‘re-invent the wheel’, as it were. I shall argue on this subject, very shortly.

An open ended launch plan with inadequate market penetration compared to set objectives:

DoP announced that this scheme will be launched gradually in all the districts of India in four phases. However, for some unknown reasons, besides phase one and two, the other two phases of the launch plan have been kept by the department, as open ended as it could be, despite the Government of India’s having all wherewithals to implement this scheme with a reasonable degree of preciseness.

The four phases were decided as follows:

1. Phase 1: Amritsar Civil Hospital in November 8, 2008

2. Phase 2: Few stores in Delhi, National Capital Region (NCR), district hospitals in Mohali,
Ludhiana, Bhatinda and Jalandhar by February 28, 2009

3. Phase 3: Other districts of Punjab and some other states to be covered during 2009 and
2010

4. Phase 4: Remaining districts of the country by 2010 and 2012

I am not surprised that with such vague launch plan and an open ended timeline, the Government seems to have faltered in Phase 2 itself, when it could not go beyond Amritsar and Shastri Bhavan, Delhi outlets, by February, 28, 2009.

Arguing for the need of a course correction:

Despite being a hardcore optimist, I now get a vague feeling that the ‘Jan Aushadhi’ scheme of the DoP may not ultimately be able to achieve its cherished goals and may remain just as another good intention of the Government of India, if a course correction is not made at this stage.

The key barrier to improve access to affordable quality generic medicine to the common man, in this particular case, is not conceptualization of a project. We all know that our Government is reasonably good at it, with a good number of brilliant minds working to give a shape to it. The main weakness to translate this laudable idea into reality, in my view, falls well within the general weakness of the Government in visualizing the key barriers to the project and at the same time missing out on some of the key drivers for the same.

In this case, there seems to be some flaw in the ‘ideation’ stage of the project, as well. This flaw lies with the plan of its delivery mechanism involving state government, NGOs and various other bodies.

If procurement of cost effective quality generic medicines is not an issue, then the DoP should carefully look within the Government system to ensure easy access of such medicines to the common man.

Two grossly underutilized Government controlled ‘mass delivery systems’:

The Government of India has two very unique product distribution and delivery systems within the country with deep penetration from metro cities to even far off rural areas. These two Government owned supply and delivery chains are as follows:

1. Public Distribution System (PDS) for food grains and other essential commodities (Ration shops).

2. Indian Post Offices

Like food grains, medicines are also essential items. Why then DoP not collaborate with PDS to ensure easy access of such medicines to the common man?

Similarly, when postal department are collaborating with various other agencies to sell and distribute many types of products in rural areas, why not DoP consider this alternative, as well?

In fact, I would strongly recommend usage of both PDS and Post Offices by the DoP for deeper penetration of such medicines especially for the benefit of those 650 million people of India who do not have any access to affordable modern medicines.

I am aware, the question of ‘in-efficiency’ of these systems may be raised by many in India. However, at the end of the day who is responsible to make these systems efficient? People responsible for managing a system or process are usually held accountable for its ‘efficiency’ or ‘inefficiency’.

We have many excellent minds in the DoP, I hope, they may wish to explore the possibility of effectively utilizing these two already available state controlled mass distribution systems to ensure success of the project “Jan Ausadhi” – “Medicines for the common man”.

It is worth noting that this project seems to have already started limping with its vague execution plan and a delivery system, the scaling up of which to ensure access to one billion population of our country could be a serious question mark.

By Tapan 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.

Allegation of ‘Marketing Malpractices’ in the pharmaceutical Industry of India has assumed a huge proportion– who will ‘bell the cat’?

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Sometime back, in its January – March, 2004 issue, ‘Indian Journal of Medical Ethics’ (IJME)in context of marketing practices for ethical pharmaceutical products in India commented:“If the one who decides, does not pay and the one who pays, does not decide and if the one who decides is ‘paid’, will truth stand any chance?”Three year after, in 2007 the situation remained unchanged when IJME (April – June 2007 edition) once again reported:

“Misleading information, incentives, unethical trade practices were identified as methods to increase the prescription and sales of drugs. Medical Representatives provide incomplete medical information to influence prescribing practices; they also offer incentives including conference sponsorship. Doctors may also demand incentives, as when doctors’ associations threaten to boycott companies that do not comply with their demands for sponsorship.”

This situation is not limited to India alone. It has been reported from across the world. ‘The New England Journal of Medicine’, April 26, 2007 reported that virtually, all doctors in the US take freebies from drug companies, and a third take money for lecturing, and signing patients up for trials. The study conducted on 3167 physicians in six specialities (anaesthesiology, cardiology, family practice, general surgery, internal medicine and paediatrics) reported that 94% of the physicians had ‘some type of relationship with the pharmaceutical industry’, and 83% of these relationships involved receiving food at the workplace and 78% receiving free drug samples. 35% of the physicians received re-imbursement for cost associated with professional meetings or continuing medical education (CME). And the more influential a doctor was, the greater the likelihood that he or she would be benefiting from a drug company’s largess.

Even our own ‘The Times of India’ reported the following on December 15, 2008:

1. “The more drugs a doctor prescribes of a company, greater the chances of him or her winning a
car, a high-end fridge or TV set.”

2. “Also, drug companies dole out free trips with family to exotic destinations like Turkey or Kenya.”

3. “In the West, unethical marketing practices attract stiff penalties.”

4. “In India, there are only vague assurances of self-regulation by the drug industry and reliance on
doctors’ ethics.”

Such issues are not related only to physicians. ‘Scrip’ dated February 6, 2009 published an article titled: “marketing malpractices: an unnecessary burden to bear”. The article commented:

“Marketing practices that seem to be a throwback to a different age continue to haunt the industry. Over the past few months, some truly large sums have been used to resolve allegations in the US of marketing and promotional malpractice by various companies. These were usually involving the promotion of off-label uses for medicines. One can only hope that lessons have been learnt and the industry moves on.”

“As the sums involved in settling these cases of marketing malpractices have become progressively larger, and if companies do not become careful even now, such incidents will not only affect their reputation but financial performance too.”

Huge settlement sums involved in such ‘federal misdemeanour’ cases could act as a reasonably strong deterrent in the USA. However, in India, even the written complaints to the Drug Controller General of India (DCGI) about ‘off label’ promotion of drugs attracts no such punitive measure. Marketing malpractices in India seems to have now become a routine, as it were. All stakeholders, in principle, agree that it should stop. But in absence of any strong deterrent, like in the USA, will it remain just as another wishful thinking?

Both the Government and the industry talk about ‘self regulation’ to address this issue. This is indeed a very pragmatic thought. A part of the industry already has such a self regulation system in place. But the moot question that comes in everybody’s mind is it working, effectively?

To effectively address this issue should the entire pharmaceutical industry in India together not form a self regulatory body in line with “Consumer complaint council” of “The Advertising Standards Council of India”, as was created by the Fast Moving Consumer Goods (FMCG) industry? The decisions taken by the ‘pharma council’ against each complaint of marketing malpractice should be disseminated to all concerned, to make the system robust and transparent…and in that process it will act as a strong deterrent too.

By Tapan 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.

The stormy debate on wrongful grant of pharma product patents – a countdown of the news events, for a quick perspective.

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To give a quick perspective to this debate, I reckon, a countdown of five reported news events on the subject will be helpful. I start from February, 2009 and gradually go one year back, to February, 2008, to capture the key elements of this stormy debate. Finally, I move to ‘ground zero’ to explore the basic remedial measures to effectively address the issue.Event 5‘The Economic times’ (ET) dated February 24, 2009 reported an interesting news item titled, “Dichotomy between patent law and practice”. The timing of this article, with its various quotes, highlighting the following points, evokes interest:

1.“Indian patent authorities are virtually not following the spirit of the Sections 3(d) and 3(e)”.

2.“A large number of patents granted in India since 2005 pertain to products first patented in 1970s, 1980s, and 1990s, most of which were launched in Indian markets long before 2005, the year of introduction of product patenting in the country”.

3.“The patent applicants are not making adequate disclosures, making it difficult for potential challengers to file post-grant objections which the law provides for. Since the International Non-proprietary Name (INN) is not of the drug is often not given along with the Title of the Patent, it is cumbersome for anyone to trace the patent to the original PCT (Patent Cooperation Treaty) application and have an idea about how new it is”.

4.“Many law firms refuse to take briefs from Indian companies, because their multinational clients do not permit them to do so! The result— post-grant objection facility is not effectively used by Indian companies.”

Why are these observations interesting?

These observations are interesting because for point number 1 to 3, as stated above, following three recourses are available to all:

1. After publication of the patent applied for, in the patent journal, one can file a pre-grant opposition.

2. Assuming that someone has missed this opportunity, the provision for filing post grant opposition will still be there.

3. Assuming that both the opportunities have been missed due to some reasons and one could not understand the details of the patent applied for, during the patent granting process, the opportunity of going to a Court of law with a request to make such patents (which have violated section 3.d) invalid, will still exist.

It is indeed very difficult to understand why such measures are not being taken by the aggrieved parties, as specified in the law.

Point number four is even more difficult to understand. When lawyers are available to the domestic companies to defend alleged patent infringement, why then lawyers will not be available to them to take such objections to a court of law?

Event 4

Mint dated October 7, 2008 in its article titled; “Cozy deals and conflicting interest mark patent granting process” reported the following:

“There are even local and multinational corporates who ‘seek’ help of examiners and controllers to get their applications drafted, thereby ensuring a grant for a price”.

Event 3

‘The Economic Times’ dated July 1, 2008 reported in its article titled, “Cipla gets patent for Nexium, Fosamax modified versions” that Mumbai Patent office granted these two patents to Cipla in April, 2008 for new forms of two well known blockbuster drugs, Esomeprazole (Nexium of Astra Zeneca) and Alendronate (Fosamax of Merck). This news came as a big surprise because Cipla is well known for its continuous accusation to innovator companies for trying to extend ‘monopoly’ period by ever-greening patent through similar means. The report, therefore, raised a very valid question, whether Cipla has ‘walked the talk’ in India? It will be interesting to know on what basis Cipla managed to overcome the ‘efficacy’ barriers under section 3(d).

On this ET report, well known IPR expert Shamnad Basheer wrote the following in his blog dated July 6, 2008:

“Reading the ET piece, Nathan Evans of Finnegan Henderson, who’s a very astute commentator on the Indian patent scene and has written a couple of articles in this regard posed this question to me:

“This makes me wonder if the patent office in India will apply the laws less strictly to Indian pharmas than MNCs (kind of like they apply the patent laws more strictly for essential medicines)”

Shamnad Basheer concluded his comment on this subject with the following observations:

“How ought section 3(d) to be interpreted when our very own generic manufacturers are applying for supposedly “incremental” inventions?”

Event 2

According to Federation of Indian Chambers of Commerce (FICCI) report dated March 7, 2008, FICCI and the Department of Industrial Policy and Promotion (DIPP), Ministry of Commerce and Industry have joined hands to set up a working group to improve Intellectual Property regime in India.
It will be interesting to know the view of this joint working group between the Government and the Industries, in this matter. I have not read anywhere any comments of this important working group on such matter, so far.

Event 1

‘Thomson and Reuters patent focus report’ dated February, 2009 observed absence of clear guidelines (Manual of Patent Practice and Procedure) about some of the complex provisions of patent law, particularly section 3(d). The report indicated that there should be clarity on what would qualify as “enhanced efficacy” under section 3(d) so that it can help the patent examiners to clearly make out which patent applications would fall under section 3(d).

Ground Zero:

Let us now try to ponder, realize and fathom the core issue of this problem, which lies at the ‘Ground Zero’. Thus far we have been reading constant allegations about the functioning of Indian Patent Offices and even on their integrity and honesty.

In absence of a well drafted, long overdue, Patent Manual, all concerned, including patent examiners will have their own ways of looking into “enhanced efficacy”. In such a situation, I shall not be surprised if the Patent Examiners suffer from the dilemma as to what exactly will constitute “enhanced efficacy”.

Protracted debate with the stakeholders on the ‘draft patent manual’ appears to be over now. The last stakeholders’ meeting on this subject was concluded in Kolkata following Delhi, Mumbai and Bangalore, several months ago. However, the final Patent Manual is still not in place, which has been kept for public inspection since 2005.

To address this stormy debate, in my view, we need to:

1. Push for expeditious release and implementation of the Patent Manual (Manual of Patent Practice
and Procedure).

2. Let FICCI – DIPP working group work more effectively and cohesively for better functioning of the
new IPR (Intellectual Property Rights) regime.

3. Let ‘capacity building’ exercise at the Indian Patent office (IPO) continue with greater speed.

Mere accusation and constant bashing of the IPOs, as we now see around, may not yield much result. After having taken the above measures, if similar dissatisfaction in any quarter still remains, let law take its own course. Despite great apprehensions by some, as quoted above under point 1, never mind, enough lawyers will be available to fight such cases.

By Tapan 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.