India: Bayer stay order against compulsory licence denied

On 17 September 2012, India’s Intellectual Property Appellate Board (IPAB) dismissed pharmaceutical company Bayer’s request for a stay order against the compulsory licence granted by the Patent Controller to a generic manufacturer earlier this year.

In its appeal before the IPAB, Bayer alleged that the CL decision of the Indian Patent Controller is illegal and unsustainable, and had filed for an immediate stay until the appeal could be heard. This has now been rejected by IPAB.

Interest of public health

“This decision once again affirms that courts can and should act in the interest of public health in the case of pharmaceutical products,” said Leena Menghaney, of Médecins Sans Frontières/Doctors Without Borders (MSF)’s Access Campaign.

“The high prices caused by patents in India are a growing problem that needs to be grappled with: one year’s treatment costs over US$1,700 for one of the newer HIV medicines we use in our project in Mumbai, and will be needed across the developing world. This price needs to come down, and we hope that the routine use of compulsory licensing may be one way of making this happen.”

Affordable access to patented medicines

India’s first compulsory licence is seen as a prospective watershed for affordable access to patented medicines, by potentially opening the way for other life-saving drugs – such as the newest drugs used to treat HIV – now patented in India and priced out of reach to be produced by generic companies for use across the developing world at a fraction of the price.

The CL brought the price of the patented anti cancer drug, sorafenib tosylate, down from over US $5,500 per month to $175 per month; a price reduction of 97 percent.

MSF had welcomed the grant of a compulsory licence issued in March this year to allow a more affordable version of liver and kidney cancer drug, sorafenib tosylate, to be produced. Bayer is being paid a six per cent royalty on sales by Natco, the generic manufacturer who received the licence.