Wednesday, May 09, 2007

Indian pharma pleased with KSR decision

The Business-Standard reports: The Indian pharmaceutical industry, especially the generic pharma segment, seems pleased with this development [KSR v. Teleflex] as it opens the way for them to expand their share in the rapidly growing global pharma market by challenging the large number of patents granted on incremental innovation grounds. And that means millions of dollars of business, which was otherwise being denied to the Indian industry because of the ever-greening of the patents through this route by the multi-national companies.

Further, the Business-Standard sees the KSR decision as implicitly rejecting positions taken in the report of the Mashelkar panel:

However, for India, these developments have, in a way, increased the confusion on the intellectual property front. For one, the US court's verdict, which has obvious global repercussions, is wholly contradictory to the Mashelkar panel's stand that not allowing patents on incremental innovation is in contravention of the Word Trade Organisation (WTO) agreements, including the TRIPs. This apart, one of the reasons for retaining India on the US watch list is inadequate provisions for protecting pharmaceutical tests and other data in India. The US claims that the Indian companies resort to unfair commercial uses of data to obtain marketing approval.

The Business-Standard suggests the Mashelkar panel report technically does not exist:

Of course, the Mashelkar committee attempted to expose this aspect and even went a step further to suggest widening the scope of patentability by lending protection to incremental innovations as well as to micro-organisms. But, that report, technically, no longer exists. So, this allows India an opportunity to re-visit the whole issue and view it more from the Indian national perspective rather than purely from the TRIPs-compliance angle.

IPBiz notes: recall the prohibition against "obvious to try" set forth in Deuel (and O'Farrell) NO LONGER EXISTS. Those were biotech cases, not IT or mechanical cases.


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