Intern at Biz & Legis
Patent is an intellectual property tool that safe
guards the invention of an inventor.
The validity of patent is for 20 years from the
date of filing of patent application
Pharmaceutical derivatives are granted patent
if it possess the character novelty.
Pharmaceutical means of or relating to
As like other products, for obtaining patent the
molecule structure, function properties etc
have to be specified in detail
1. Prevent others from commercially utilize
2. Encourage financial risk and long term
3. Patents guarantee dissemination of
Novartis AG v. UOI decided on 1st April 2013
Facts of the case
Novartis is the world’s leading pharmaceutical
company filed patent application for its new
version of cancer drug.
The drug is called glivec and is very expensive.
Glivec was already in the market, however
they decided to seek a patent on a slightly
altered version potentially giving it longer
period of market exclusivity.
The case hinged on s.3(d) of the Indian Patents
Act which does not allow patents of new
version of known drug molecules if they
make it more effective than before. In the
mean time many Indian companies produced
generic drugs at very cheap rate which was
consumed by 300000 people .
Whereas 16000 people use glivec. Generic
versions can be manufactured when the
product expires the patent.
1. whether glivec is a patentable product?
2. Whether it involves ever greening?
With the majority under the presence of
Aftab Alam .J. and Ranjana Prakash Desai .J.
the court held that the patent application is
rejected on the grounds that :
1. Mere modification does not give novelty to
the product and the applied product has no
better effect than the already existing
2. If the application is allowed to grant patent
for glivec it becomes re-patenting and lie
within the purview of ever greening which
is prohibited under the Indian Patent Law.
3. Since the patent for the already existing
drug has expired manufacturing and selling
of generic versions within the country at
A majority of indian population uses generic
version of glivec at cheap rate and enjoy
the easy accessibility of medicine.
The judgment has paved a clear path to
establish and secure human rights by
complying right to health through this
It can be proudly concluded that Human rights
win as giant pharma Novartis loses the
Inalienable fundamental rights to which a person is
inherently entitled simply because he/she is a
Substantive rights- 1. Right to life 2. Freedom
from torture 3. Freedom from slavery 4. Right to
fair trial 5. Freedom of speech 6. Freedom of
thought, conscience and religion 7. Freedom of
movement 8. Rights debates ( Right to keep and
bear arms, future generations, sexual
orientation and gender identity, trade, water,
reproductive rights and information and
communication technologies )
RIGHT TO HEALTH
Recognized in the UDHR, ICESCR and Convention on
the Rights of Persons with Disabilities.
Art.25 of UDHR- Everyone has the right to a standard
of living and well being of himself and his family.
Preamble of WHO declares it to be a fundamental
right of every human being to enjoy the highest
Defined u/art. 12 of ICESCR
Impliedly involves right to access medicine,
right to treatment and precautionary
Accessibility increases when the price of
medicine is cheap, nation based production,
availability of alternative at cheap rates etc.
Accessibility decreases when price in high,
imported medicine and rules regarding the
exporting countries etc.
GLIVEC GENERIC VERSION OF GLIVEC
Novartis, a foreign
Expensive in nature.
Pack of 30 tablets costs
$ 1,100. Accessibility
16000 people in India
distributed by approved
local companies such as
Nexavar- generic version-
pack of 120 tablets
costs $ 1000.
Accessibility is high.
300000 people prefer
WHO WILL MEET THE HUMAN RIGHTS
GLIVEC OR ITS GENERIC VERSION!!!!!
The judgment is nothing but the rejection of
patent application of glivec filed by Novartis.
As the application is very related to ever
greening which is barred by Indian Patent
law, no injustice has been done to Novartis
by the judgment.
Since patent period has been expired,
encouragement of manufacturing of generic
version of the same is permissible and do not
amount to violation of law.
Government shall take quick steps to increase
accessibility of these generic version and the
cheap rate of medicine enhance the mobility
Cancer is a serious disease that may cause
death. Right to health being a human right is
clearly violated on death of people due to
Judgment makes it easier to extend the
accessibility of the generic drugs through its
extensible manufacturing and distribution.
Governmental steps can be smoothly adopted
and implemented for making the drug to
reach the nook and corner of the country.
It can be noted that the compulsory licensing
of the same drug would not increase its
The judgment of Novartis case can be regarded
as the most fruitful, viable and traceable
decision that meet the human rights to the
Other Judgments favorable of generic drug
Roche Pegasys case- November 2012
Januvia patent case- 2nd April 2013