Second, although TRIPs is largely modelled on US law, what the US does should be irrelevant for our public policy purposes. One mentions this because US Supreme Court’s April 2007 decision figures in our Novartis debate. The US Supreme Court effectively made it more difficult to obtain “obvious” patents. However, what we do beyond the TRIPs’ threshold should be determined by our priorities, not by what some other country does or wishes us to do. This is equally true of pro-Novartis arguments that imatinib patents exist in 40 other countries. That can inform our decision but shouldn’t determine it.

Third, let’s not confuse broader public health issues with the limited issue of anti-cancer treatment. If we have Novartis in the blue corner, in the red corner we have assorted NGOs (not just Cancer Patients Aid Association) and domestic pharmaceutical companies that produce generic versions of imatinib. NGOs are rightly concerned with the state of India’s health. However, our health outcomes are functions of clean drinking water, sewage treatment, sanitation, immunisation, iron supplements and assorted preventive healthcare elements. These public services are inefficiently delivered. Drugs account for a small share of costs. And even when they do, patented drugs have an even smaller share. After the Madras High Court judgment, now that Novartis has apparently lost the fight, celebrations on account of public health will be unwarranted. India won’t be any closer to Millennium Development Goals on health.

What has the fight been about? The Novartis patent application was pending and after the third amendment in 2005 the application was turned down (by the Chennai patent office) in 2006 on the grounds that imatinib was only a new form of an old drug. There was no inventiveness. The reference is to Section 3(d) of Indian Patents Act, where we are talking about incremental innovation.

... contd.