The Washington Post reports on a big patent decision at the Indian Supreme Court:
India’s Supreme Court on Monday rejected a Swiss pharmaceutical company’s effort to patent an updated version of its cancer drug, a decision aimed at boosting a domestic generic drug manufacturing industry that supplies cheap versions of lifesaving cancer and HIV medicines for much of the developing world.
In a case closely watched by global drugmakers, Switzerland’s Novartis AG has been fighting since 2006 to patent its leukemia-treating drug Glivec in India on the grounds that it is a newer version. India revised its patent protection law in 2005.
The company challenged a clause in the Indian patent law that restricts multiple patents for a drug and denies such protection for newer versions of a “known substance” in already patented medicines unless they are significantly more efficacious.
Patents for amended versions of drugs can be granted in the United States.
But in a landmark judgment that is likely to set a legal precedent for future patent claims, India’s Supreme Court said the beta crystalline form of the salt called imatinib mesylate in the drug fails the test of “invention and patentability.”
The decision is here: http://judis.nic.in/supremecourt/imgs1.aspx?filename=40212 The Spicy IP blog summarizes the case here: http://spicyipindia.blogspot.com/2013/04/supreme-court-rejects-bid-by-novartis.html
There's some general discussion of TRIPS at pages 27-39 of the decision, but I don't see anything about whether this approach to patentability of "updated versions" of drugs is consistent with TRIPS. Article 27.1 of TRIPS says:
1. Subject to the provisions of paragraphs 2 and 3, patents shall be available for any inventions, whether products or processes, in all fields of technology, provided that they are new, involve an inventive step and are capable of industrial application.5 ...
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5 For the purposes of this Article, the terms "inventive step" and "capable of industrial application" may be deemed by a Member to be synonymous with the terms "non-obvious" and "useful" respectively.
I'm guessing that someone has developed an argument as to why India's approach violates TRIPS, but I haven't seen it.
