Judicial breach: Pharma's bad karma

Given legal battles over drug patents, industry hobnobbing with judiciary is a conflict of interest


Deevakar Anand | December 8, 2014

The Intellectual Property Owners Association (IPOA) is a US lobbying group of pharmaceutical companies, based in Washington, DC. In the third week of November, members of this association held an ‘Innovation Dialog’ in Delhi and Chennai.

Apart from members of the judiciary and staff at the Delhi high court and the supreme court of India (SC), the attendees included officers of the Intellectual Property Appellate Board (IPAB), a quasi-judicial body in Chennai.

The event was controversial. For several US-based pharma companies are involved in legal wrangles over intellectual property rights in India.

Take the example of Bristol-Myers Squibb. Headquartered in New York, it has a case pending in the Delhi high court (HC) regarding a patent dispute over the anti-cancer drug Dasatinib; the next hearing is scheduled for December 1. Another US pharma company, Schering Corporation, has a patent dispute over anti-Hepatitis C drug Pegylated interferon alpha 2 B; a case is lined up for hearing in the Delhi HC on January 2, 2015. Other US pharma firms including Roche, Mylan and Pfizer have patent disputes pending in Indian courts or with the IPAB in Chennai.

A lobbying group of US pharma companies inviting judicial members raises the question of a conflict of interest. Public health activists have called this meeting a ruse to influence the legal cases and to further the business interests of IPOA member companies. Especially because IPOA regularly puts India among its ‘priority watch list’ of countries that often fail to enforce patent rights of transnational pharma companies. They say such attempts to influence judiciary were encouraged by an understanding between Indian prime minister Narendra Modi and US president Barack Obama in October for constituting a high-level working group on intellectual property rights (IPR).

Those who follow the industry say the SC’s refusal to grant patent rights over the anti-cancer drug Glevic to the Swiss company Novartis AG has made IPOA more aggressive in protecting the interests of its members in India. The market for anti-cancer drugs in India was estimated at about Rs2,000 crore in 2013. It is projected to grow to Rs3,881 crore by 2017. US pharma companies want the IPR laws to protect their claim to this market. Hence the pressure to ‘dialog’ with the judiciary.

A chequered past
In 2011, justice Dalveer Bhandari of the SC recused himself from hearing a Novartis patent plea after health activists objected to his participation in at least two international conferences for judges organised by IPOA. In 2010, activists criticised a judges’ roundtable on IPR adjudication; its organisers were the Federation of Indian Chambers of Commerce and Industry (FICCI) and the Maharashtra State Judicial Academy. Public health activists say judiciary should not associate with industry bodies like FICCI that lobby the interests of the pharma industry, including strong IPR protection.

The Campaign for Affordable Trastuzumab is a group in Delhi that defends the rights of cancer patients who need the drug for treating breast cancer (Trastuzumab is the chemical name of the drug Herceptin). Its members take a dim view of the November meetings between IPOA members and members of the judiciary. Kalyani Menon-Sen of the group told Governance Now: “At the end of the day, the stated aim of the IPOA is to promote the case of its member entities, and thus, it is no more than a lobbying group set up by corporate interests to promote their restricted view of intellectual property.”

The group wrote to the chief justice of India, chief justice of Delhi HC and the IPAB to cancel any meetings with IPOA delegation that “openly sought to breach the fundamental principle of justice and undermine judicial ethics.” The letter said: “The IPOA event, providing privileged access of an IPR lobby group to the highest levels of the judiciary and key quasi-judicial bodies like the IPAB, involves a serious conflict of interest and would cast a dark shadow on the neutrality of the judiciary.”

Pharma giants object to the Indian health ministry’s compulsory licensing policy to bring down the prices of patented medicines.
Sankalp Sharma of the think-tank Institute for Competitiveness, says Indian courts face a peculiar problem in IPR matters: “Courts have to draw a delicate balance between patent rights of private businesses and the fundamental rights of people, that is, matters of life and health.” There is a flood of IPR cases. “On the lines of the National Green Tribunal, we need dedicated pharma IPR courts with niche focus,” he says.

The story appeared in December 1-15, 2014, issue



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