Call it a landmark non-ruling. The Chennai high court responded to Novartis’s petition — the Swiss company had challenged Indian patent authorities denial of a patent on Glivec (an anticancer drug) — by deciding it was not the competent authority to decide on WTO-compatibility of the Indian law. In itself, it is a good decision — as these columns have had occasions to observe, not all public policy issues, especially those involving complex science, are amenable to judicial assessment. But the non-ruling’s effect on patent politics will be quite different. Since the court did not address the central question — whether incremental innovations (genuine improvements in an already existing molecule) are a legitimate patent claim for pharma companies — the patent office’s ruling stands. And that, never mind the expressions of joy from radical health activists and generic drug manufacturers, is not in India’s interest.

It is important to understand that the issue of WTO-compatibility is a red herring. India must decide on parameters of pharma patents according to its own interests, even if the current law is deemed WTO-compatible. Arguing that patents on incremental innovations will price out critical drugs for the poor is disingenuous: even generic versions of critical drugs are far too expensive for the poor. The poor’s access to drugs and better health is a crucial public health issue. But patents are the wrong battle area. Only 15 per cent of the public health budget in India is spent on buying medicines, and a vast majority of crucial medicines for poor patients are off-patent anyway. If India’s sanitation improves, its health record will improve geometrically — battling MNCs is really beside the point if you are defending, as one should, the poor’s right to health care.

But the Glivec case is very relevant if the concern is Indian pharma industry’s future, and surely the government should be concerned about this. Nicholas Piramal is working to innovate on Glivec’s formulation. Section 3 (d) of the Indian patent law, which Novartis challenged, cannot give Nicholas Piramal a patent. Novartis is working on an anti-dengue formulation. Indian pharma companies may not want to innovate on Novartis’s molecule, which will be patented of course and produce a domestic patentable version. India’s pharma sector needs to grow out of its generic stage. But since its budget is much lower than that of Western MNCs, seeking patents on incremental innovation rather than developing new molecules is the best current strategy. That strategy receives no incentive from India’s patent law.

editor@expressindia.com