Bayer challenges the Indian compulsory licence

Category: WTO Sub-category: Intellectual Property
Document type: news

9-May| 4:50 IST | Edited by: Sharmila Maitra

German drug maker Bayer HealthCare AG has appealed against the compulsory licence granted to Natco Pharma Ltd., in March, to manufacture and market cancer drug Nexavar by India's Controller General of Patents.

Bayer filed its appeal at the country's Intellectual Property Appellate Board on 3rd May, 2012.

A Bayer spokesperson said that they strongly disagree with the conclusions drawn by the Patent Controller of India and shall rigorously continue to defend their  intellectual property rights, which are a prerequisite for bringing innovative medicines to patients.

The compulsory licensing decision, the first in the country, met with mixed reactions.

Bayer, however, makes three claims in support of its decision to appeal.

First, according to Bayer, under the World Trade Organization's TRIPS Agreement, which governs trade and intellectual property rules, compulsory licences are a legally recognised means to overcome barriers in accessing affordable medicines.

Moreover, the challenges faced by the Indian healthcare system have little or nothing to do with patents on pharmaceutical products as all products on India's essential drug list are not patented.

Second, it notes that there are other roadblocks to access to medicines for poor patients in India as revealed by the fact that many patients do not get access to even non-patented medicines on the essential drug list. 

And finally, Bayer argues that one compulsory license on one hyper-expensive cancer medicines threatens the international patent regime. 

The then controller general of patents, P.H. Kurian, who issued the compulsory licence order, is of the opinion that it was Bayer's prerogative to appeal against the order, and it was under no restriction to put its arguments before the appellate authority.

M. Adinarayana, company secretary, Natco, on other hand, refused to comment by saying that they  haven't received any notice in this regard as yet, and if the appeal came up, they shall be able to file a reply and present their case in the hearing.

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Bayer AG is a chemical and pharmaceutical company founded in Barmen (today a part of Wuppertal), Germany in 1863. It is headquartered in Leverkusen, North Rhine-Westphalia, Germany and well known for its original brand of aspirin.