On the Novartis File
Pharma multinational firms use patents to ward off competition: perpetuate monopolies. Capitalists claim only they secure progress, that big money brings innovation. They lie, twist the law, rob people's rights and appropriate mankind's past labour.
On The Novartis File
Fernando García Izquierdo
Having lately written something about the way a famous transnational corporation interprets international law, I feel like adding a few thoughts to what I have already said. Perhaps I ought to have read the entire file before writing any more on the subject, but I have other things to do and, besides, I am not paid five hundred an hour for my pains, as others are (nor a single penny, to tell the truth.)
I shall go on, nevertheless, emphasising at the outset that my knowledge herein mainly derives from my having read a few newspaper articles which have appeared
(since April 1, 2013) here and there.
I haven’t got the inpression, reading them, that the writers are hitting the target, if their intention is really to deal fairly with the matter of the Indian Supreme Court’s decision. And that is why I am writing this today.
What worries me is that, by turning to such matters as financing the cost of innovation: the need for expensive laboratory research in the fight against cancer, bringing together highly paid Nobel laureates and other world celebrities, or even the need of “organising donation programs” for the poor (which sounds charitable), we may be falling into a trap, as often happens under capitalism. Because, substantially, it is true, O my God! money is needed
Nor must we waste our time, as politicians do, with calculations about growth and labour productivity, which is an altogether different problem: that warning about the National Health Service and other state deficits, that humble plea to “all-devouring pharmaceutical corporations, with their astronomical prices, which the state cannot pay.”
In other words, let us not distract our attention from the fundamental problem herein, which is one of International Patent Law. Not of Charity, Nobel Prizes, State Deficits and so on.
Patent monopolies do not last forever.
I do not have any information regarding the date when “the Drug which is said to cure Cancer” (to refer graphically to “the invention”) which is the subject of this drawn-out legal conflict, was discovered by Novartis’ team of researchers. More importantly, when and where was the drug first registered as a patent?, and thirdly, to which countries was the protection extended thereafter (by patent registration) within the terms of the international convention?
We know (and this is primordial) that it has not been registered in India, the country where the battle has taken place all these years. I do not think that we should now waste our time in determining what was the reason for this non-registration (in India) of the “Drug” as a patent of invention. If we were in a normal world, which we aren’t, this should be the beginning and the end of all investigation: The “Drug” is not registered and it has never been registered, in said country.
Consequently, it seems to me, Novartis cannot claim patent-registration protection, for the product in India. Full stop.
Are there two patents of invention covering the drug today named Glivec?
Assuming that the monopoly period on the invention, discovery, initial drug, whatever we want to call it, and which saw the light of day it seems in Switzerland, has now expired, the problem would evolve, it appears, around the question of whether there is a second patent of invention (for curing cancer) and whether this second “discovery” has been registered or not in India. Never mind if “discovery” was accepted as legitimate and a patent was granted (in Switerland, the United States and elsewhere.)
The answer is that (three times, it seems) in India the attempt to secure registration, i.e., the pretension of possessing a new invention, and therefore of Novartis being entitled to a new monopoly (let’s say, for the sake of argument, until 2020) on the said product that cures cancer, has failed. Novartis’ lawyers’ considered arguments have been definitely rejected.
The result of a quirk of History or a question of Law?
There is a tendency among the journalists to mix the issues. To tergiverse, in other words. Let’s look at an article in The New York Times (April 4, 2013.) “In many ways,” I read, “the decision against Novartis is the result of a quirk of history. India began granting patents for medicines in 2005, when it changed its laws to comply with a global intellectual agreement, but only for drugs created after 1995.”
This is incomprehensible palaver. The facts are that a) in India Novartis does not have a patent registration (for the drug) and never has had one, b) an attempt to extend what may be (in other countries) an expiring monopoly (and which may, in those countries, have succeeded) was made in India and has failed. There was no novelty, the attempt to slip through the “second” drug as a novel invention was repeatedly rejected (last time, April1, 2013.)
I would like to repeat: 1. A patent is granted for a certain period of exclusive rights, and 2. After that period the patent (the product) becomes public domain, i.e., it can be manufactured and sold by other parties. It is just that this should be like this, because: 1. Contrary to what some wisemen think, the inventor or team of inventors create nothing; they benefit from the work and discoveries made by Humankind for many thousands, perhaps millions of years, and 2. If Novartis, say, should attempt to stop other people from using what is public domain, progress would be stopped.
Proprietary trademark versus generic name.
There is, in my opinion, a subsidiary problem. Novartis has secured registration of a trademark (Glivec) under which the drug is being sold, as an innovation by Novartis, I think, in the United States, Switzerland and perhaps elsewhere. In these countries, the extension of the monopoly (on the drug), for a further twenty-year period, appears to have been assured. Now, I have read, in some papers, that the expression “the Glivec patent” is being used. This is tending to confuse matters. If the name Glivec is registered in India, as a trademark, this does not give Novatis any patent rights on the Drug. Trademark registration and patent registration are two different things and should not be confused. Registration of the trademark Glivec in India will not give Novartis monopoly rights on a medicine which is not registered, as a patent. I wanted to clarify this.
There is still the possibility of an appeal.
It appears that the Indian Supreme Court’s verdict (April 1, 2013) is not definite. For it is said that Novartis’ lawyers are considering the possibility of a further challenge.
Unfortunately, I know nothing about procedural law. In my time, in a sovereign country, when the supreme court decided on a conflict between two parties, the decision was the end of the affair. I have read that in this case the World Trade Organization can act as an appellate court.
All I can now say is that, as far as Novartis is concerned, the matter is in good hands. I’ve read that its lawyers are postponing the decision until September, 2013. These lawyers are terrific, everybody knows that. When they appear in a court of justice defending their Big Clients, even the lawyers of the other party fear them. Celebrated the world over, like the big comedians that they are, they are Very Smart. When they open their mouths and start speaking, everybody trembles.
Their loyalty to the System is proverbial, which is another trump in their hands. This does not stop them, however, from defending one cause today and sustaining the opposite one tomorrow. They are quite sollicited, and always extremely efficient. For (the most important thing) they always win. And if it does seem, at times, that Victory has escaped them, there is nearly always the possibility of an appeal.
This kind of attorneys dispose of mountains of dollars to make cases last forever.
Fernando García Izquierdo
9, rue Vernet
78150 LE CHESNAY, France