In this week’s patent news and updates – World IP day 2021, a solemn affair this year; Calls for compulsory license on COVID vaccine grows stronger; Government should not hesitate in invoking compulsory licensing provisions says Delhi High Court; Intel wins patent trial involving VLSI Technology; India – South Africa patent waiver proposal opposed by EU, UK and Switzerland at WTOP TRIPS meet; Lawmakers and nonprofit groups urge Biden administration to back ‘moral’ patent waiver.
Indian Patent Updates
World IP day 2021, a solemn affair this year
April 26th, celebrated as World IP day every year will be a solemn affair this year, given the prevailing pandemic situation across the globe and more particularly so here, in India. This year’s theme for the World IP day is “IPs and SMEs” and is aimed at highlighting the importance of Intellectual Property in the Micro, Small and Medium Enterprises (MSME) sector. Webinars are being organized by various educational, governmental, and private institutions to celebrate this day and raise awareness, especially among the SMEs in respect of the benefits of seeking and protecting intellectual property. Even as countries across the world struggle to contain this pandemic, the so called developed nations have refused to ease out IP restrictions to ensure accessibility and affordability of medicines despite repeated appeals. This begs the question, is it truly a ‘happy’ world IP day?
Calls for compulsory license on COVID vaccine grows stronger
Even as India struggles to procure raw materials from the US government for development of COVID-19 vaccines, various groups have called upon the government to use the provisions available under the Indian patent law and issue compulsory licenses in respect of patented drugs currently being used in the treatment and management of COVID-19. With the number of infections rising at an exponential rate and death till mounting, it remains to be seen whether and if the government will consider these calls.
Government should not hesitate in invoking compulsory licensing provisions says Delhi High Court
The Delhi High Court while deciding on the writ petition in Rakesh Malhotra v. Government of National Capital Territory of India and Ors. [W.P.(C) 3031/2020] has directed the Government to “immediately reach out to the manufacturers/ patent holders/ licensees so as to forthwith ramp up the production capacities” of drugs “and all such other medications, as are essential for” use in the treatment and management of COVID patients. The High Court observed that “the Patents Act provides for Compulsory Licenses under Section 84, and Special Provision for Compulsory Licenses or Notifications by the Central Government, under Section 92. Section 100 provides the power of the Central Government to use inventions for purposes of the Government”. The court said, while “the best course would be encourage the existing manufacturers to ramp up their production on a war footing. However, if such efforts do not fructify soon enough, the Government/ Controller should not hesitate to invoke their jurisdiction and powers under the aforesaid provisions of the Patents Act, since the lives of thousands of people are being lost each day in the country due to COVID. The lives of the people take priority over everything else.”
Relevant portions of the judgement are provided below for the ease of our readers:
“27. There are a number of other drugs which are being used for treatment Covid-19 patients, such as Tocilizumab, Favipiravir, Ivermectin, Dexamathasone, Methylprednisolone, Dalteparin, Enoxaparin, HCQ and Baricitinib. As per news reports, there are shortages of some, if not all, of the aforesaid drugs. Looking to the emergent situation, we direct the Central Government to immediately reach out to the manufacturers/ patent holders/ licensees so as to forthwith ramp up the production capacities of the above, and all such other medications, as are essential for treatment of Covid positive patients. We may take note of the fact that the Patents Act provides for Compulsory Licenses under Section 84, and Special Provision for Compulsory Licenses or Notifications by the Central Government, under Section 92. Section 100 provides the power of the Central Government to use inventions for purposes of the Government.
- Looking to the present day situation, there can be no doubt that a case is made out for exercise of its power by the Central Government/ Controller under the aforesaid provisions of law. At the same time, the interests of the Patent holders/ licensees should be kept in mind, since it on account of their investments, inventions and hard work that such like medicines are made available to the public at large. The best course would be encourage the existing manufacturers to ramp up their production on a war footing. They should also be encouraged to grant voluntary licenses to other entities to manufacture the requisite drugs. However, if such efforts do not fructify soon enough, the Government/ Controller should not hesitate to invoke their jurisdiction and powers under the aforesaid provisions of the Patents Act, since the lives of thousands of people are being lost each day in the country due to COVID. The lives of the people take priority over everything else. Even if such like powers are exercised, the patent holders/ manufacturers can be adequately compensated by fixation of fair license fee. The Central Government should swing into action in terms of this order in this regard without any delay, and report progress on the next date of hearing.”
Patent Disputes / Settlement updates
Intel wins patent trial involving VLSI Technology
The US District Court for the Western District of Texas in a recent ruling ruled in the favor of Intel Inc. in a patent infringement suit filed against it by VLSI Technology. The dispute arose in April 2019 when VLSI sued the Intel, accusing the latter of infringing three patents covering data processing system technology. VLSI which was seeking $3.1bn in damages has yet another opportunity after this setback as a third trial before US District Judge Alan Albright is slated to begin soon in June.
International Patent Updates
India – South Africa patent waiver proposal opposed by EU, UK and Switzerland at WTOP TRIPS meet
India and South Africa’s joint proposal for easing of the patent restrictions to enable access to vaccines in poorer countries has been met with stiff resistance from the European Union, United Kingdom and Switzerland even as atleast 120 countries backed the joint proposal. The Indian delegation has reportedly informed WTO that the existing approach of voluntary licensing can deliver vaccines only to 4% of the global population. The Indian and South African delegations reportedly slammed the “developed countries” for purchasing vaccine supplies at a level sufficient to vaccinate their whole population several times over but turning a blind eye to the developing and under developed countries as they struggle to vaccinate even 5% of their population.
Lawmakers and nonprofit groups urge Biden administration to back ‘moral’ patent waiver
Over a hundred US lawmakers, 60 former heads of state and 100 Nobel Prize winners along with nonprofit groups have delivered a petition signed by over two million people urging the US government to back a temporary patent waiver for COVID-19 vaccines to help poor countries contain the pandemic. The issue may take center stage again when the WTO meets on May 5th even as India and South Africa have decided to rework on the proposal after several failed attempts at securing a temporary patent waiver.
Authored by Gaurav Mishra
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