[Ip-health] Letter to Chief Justice of India: Concerns regarding Intellectual Property Owners Association’s scheduled meetings with IPAB and the Delhi High Court

K.M. Gopakumar kumargopakm at gmail.com
Sun Nov 16 18:41:27 PST 2014


*Friday, November 14, 2014*

To,

*Hon’ble Justice Mr. H.L. Dattu*

Hon’ble Chief Justice of India

Supreme Court of India

Tilak Marg New Delhi



Hon’ble Justice Smt. G. Rohini

Chief Justice, Delhi High Court

9, Akbar Road, New Delhi



Hon'ble Justice K.N. Basha

Chairman

Intellectual Property Appellate Board

Annex-I, Guna Complex, II Floor,

443 Anna Salai, Teynampet, Chennai



*Re: **Concerns regarding Intellectual Property Owners Association’s
scheduled meetings with IPAB and the Delhi High Court*

*Dear Hon’ble Justice Dattu, **Hon’ble **Justice **Rohini** and **Hon'ble
Justice K.N. Basha,*



We write to you on behalf of the Campaign for Affordable Trastuzumab, a
network of treatment activists, patients and public interest lawyers
committed to making the breast cancer drug - trastuzumab – affordable in
India. We have closely followed the misuse of patent rights and more
recently the *vexatious litigation of the Swiss pharmaceutical
company* Hoffmann-La
Roche Ltd in India to maintain control over the market for the life saving
drug (trastuzumab), thus blocking access to treatment for many women
diagnosed and suffering from HER2+ breast cancer.

This letter is to express our grave concern about the intent and purpose of
the “Innovation Dialog” being organised in India from November 16-22, 2014
by the Intellectual Property Owners Association (IPOA).

The IPOA is a US-based group consisting of large corporations and law
firms, looking to always interfere in intellectual property standards and
enforcement in India without a balanced view about where it creates more
harm than good, and where other alternatives might be better. It's
especially troubling, since there are areas –such as medicines - where
over-aggressive use of intellectual property have been most damaging,
locking up access to affordable treatment, rather than increasing the kind
of competition that drives follow on innovation forward.

Several multinational pharma corporations with interests in India are
members of the IPOA.

The agenda of the IPOA event over the next two weeks includes meetings with
the IPAB (a quasi-judicial body) and the Delhi High Court[1] <#_ftn1> and
the offices of the Controller of Patents. The agenda also shows a scheduled
visit to the Supreme Court of India.  The intent of these meetings is clear
– they are blatant attempts to influence the judicial outcomes in cases
relating to drug patent disputes that are currently before the courts.

The claim that these meetings are being organised to “share experiences
and perspectives on intellectual property and practice with patent
practitioners and the judiciary of India” is a shameless ruse – the intent
is clearly to create an opportunity for multinational pharmaceutical
companies to lobby on contentious issues that are taking center stage in
the struggle over the interpretation of India's medicines patent law. Among
them is India’s patentability criteria that makes it tougher to get a
patent on new forms of existing medicines; any refusal to grant excessive
and unwarranted injunctions on claims of patent infringement; and
discretion of the Patent Controller to grant a compulsory license to a
competitor to bring down the prices of medicines that are patented.

The meetings with the IPAB and the Delhi High Court are blatant attempts to
influence the judicial decisions of these institutions with regard to
current and future patent disputes. We understand that IPAB will soon be
hearing  appeals from some IPOA member companies against the rejection of
their patent applications by the Indian Patent Office.

The high courts and in particular the Delhi High Court are handling
multiple litigations that demand the balancing of private IP rights with
the fundamental rights to life and health enshrined in the Indian
Constitution. IP owners are now increasingly using the tactic of asking for
stay orders (interim injunctions) against their competitors. This is an
area of growing controversy as multinational pharmaceutical companies are
pushing for greater IP enforcement regardless of irreparable harm to
patients.

The Patent Office is itself hearing and deciding multiple patent
applications filed by corporate entities that are members of the IPOA.

You are no doubt aware that many of the members of the IPOA (notably
Bristol-Myers
Squibb Co, <http://www.bms.com/>Roche Inc. <http://www.roche.com/>, Pfizer
Inc. <http://www.pfizer.com/> and Merck & Co)[2] <#_ftn2> have cases and
appeals pending before the IPAB and the Delhi High Court.

CS(OS)  679/2013
   [Pending in the High Court of Delhi]

 BRISTOL-MYERS SQUIBB COMPANY & ANR Vs.   D SHAH & ANR

Court No: 23
Next Date: 01/12/2014

Patent dispute relating to the anticancer drug dasatinib

 CS(OS)  2634/2013
   [Pending in the High Court of Delhi]

 BRISTOL-MYERS SQUIBB COMPANY& ANR Vs.   DHARMESH M SHAH & ORS

Next Date: 02/02/2015

Patent dispute relating to the anticancer drug dasatinib.

CS(OS) 1026/2009

   [Pending in the High Court of Delhi]

SCHERING CORPORATION & ORS VS VIRCHOW BIOTECH (P) LTD & ANR





Patent dispute relating to the anti-HCV drug pegylated interferon alpha 2b

 CS(OS)  355/2014

 [Pending in the High Court of Delhi]

 ROCHE PRODUCTS (INDIA) PVT LTD & ORS Vs.   DRUGS CONTROLLER GENERAL OF
INDIA AND ORS

Court No: 23
Last Date: 13/11/2014

Roche wants the more affordable version of the drug trastuzumab to be taken
off the market on the ground that the package insert of the competitor
violated their copyright.

ORA/15/2010/PT/DEL & M.P. Nos: 80 & 96 of 2012, 30 to 32 of 2013, 32 AND 33
of 2014 in ORA/15/2010/PT/DEL

   [Pending in the IPAB]

MYLAN LABORATORIES LIMITED

Vs.

1. PFIZER INC.,

2. OSI PHARMACEUTICALS INC.,

3. THE CONTROLLER OF PATENTS

4. F. HOFFMANN-LA ROCHE LTD

Next Date: 27/11/2014

Patent dispute relating to the anti-cancer drug erlotinib



We question the ethics and propriety of meetings and interactions between
the judiciary and the IPOA delegation which consisting of representatives
of pharma MNCs and the law firms that represent them in patent disputes
before the IPAB and Indian courts. This has been implicitly recognised by
Hon’ble Justice Dalveer Bhandari who recused himself from *Novartis AG vs.
Union of India* citing his participation in two of the International Judges
Conferences organised by IPOA.

At the end of the day, the stated aim of the IPOA is to function is to
promote the case of of its member entities, and, is thus no more than a
lobbying organization set up by corporate interests to promote their
restricted view of intellectual property. It is disquieting that this
lobbying organization is seeking to meet members of the judiciary in India
which is hearing currently pending matters in which IPOA members are
plaintiffs.

The IPOA event, providing privileged access of an IP lobby group to the
highest levels of the judiciary and key quasi-judicial bodies like the
IPAB, involves a serious conflict of interest and would cast a dark shadow
on the neutrality of the judiciary.

We are also proud of the standards and guidelines that have been put in
place to safeguard judicial institutions from possible conflicts of
interest. Our courts are in the forefront of the move to hold public
institutions to account for any breach of ethics and propriety. The recent
step taken by the Supreme Court to scrutinise the visitors book of the
Director of Central Bureau of Investigation is a clear message in this
regard, with serious note being taken of the alleged visits of individuals
directly or indirectly linked to ongoing CBI investigations.

We believe that the independence of the judiciary is central to its role in
protecting the right to life and health guaranteed to us by our
Constitution.

We therefore request you to cancel any meetings you may have scheduled with
the IPOA delegation, which is openly seeking to breach this fundamental
principle of justice and thereby undermine the ethical foundations of our
judicial system.

We look forward to your immediate action on this letter.

With regards,










*Kalyani Menon-Sen                                                    Leena
Menghaney                                                 **KM Gopakumar*

*The Campaign for Affordable Trastuzumab was launched in November 2012 and
endorsed at the time by over 200 Indian and global patient associations,
cancer survivors, health movements, women’s rights activists and eminent
jurists[3] <#_ftn3>. *



C.c.:



*Hon’ble* *Dr. Justice S. Murlidhar**, The High Court of Delhi *

*Hon’ble** Mr. Justice G.S. Sistani**, The High Court of Delhi*

*Hon’ble* *Mr. Justice Rajiv Sahai Endlaw, **The High Court of Delhi*

*Hon’ble** Mr. Justice S. Ravindra Bhat, **The High Court of Delhi*

*Hon’ble* *Mr. Justice G.P. Mittal, **The High Court of Delhi*

*Hon’ble* *Mr. Justice Manmohan Singh*, *The High Court of Delhi*

*Shri Jagat Prakash Nadda*, *Hon’ble Minister for Health & Family Welfare*

*Shri. D.V. Sadananda Gowda*, *Hon’ble Minister of Law and Justice,
Ministry of Law and Justice*

*Smt. Nirmala Sitaraman*, *Hon’be Minister for Commerce and Industry,
Ministry of Commerce and Industry*

*Shri P.K. Malhotra*, *Secretary, Department of Legal Affairs, Ministry of
Law and Justice*

*Shri Amitabh Kant*, *Secretary, DIPP, Ministry of Commerce & Industry*

*Shri Rajeev Kher*, *Secretary, Department of Commerce, Ministry of
Commerce & Industry*

*Shri Lov Verma*, *Secretary, Department of Health & Family Welfare,
Ministry of Health and Family Welfare*

*Ms. Aradhana Johri*, *Secretary, Department of Pharmaceuticals, Ministry
of Chemicals and Fertilizers*

*Mr. Amit Singla*, *Deputy Secretary (TPD) Department of Commerce, Ministry
of Commerce & Industry*

and Chairperson*, Parliamentary Standing Committee on Commerce*

*Mr. Sudhanshu Pandey**, Joint Secretary, Department of Commerce, Ministry
of Commerce & Industry*

*Mr. D.V. Prasad**, Joint Secretary, DIPP, Ministry of Commerce & Industry*

*Ms. Chandni Raina*, *Director (IPR), DIPP, Ministry of Commerce & Industry
*

*Dr. G.R. Raghavender*, *Director (IPR), DIPP, Ministry of Commerce &
Industry*

*Mr. Chaitanya Prasad**, Controller General of Patents, Designs & Trade
Marks, DIPP, Ministry of Commerce*

*Mr. R.K. Jain*, *Additional Secretary, Department of Health & Family
Welfare*

*Mr. Amal Pusp*, *Director (IH), Department of Health & Family Welfare*

*Mr. Shailendra Kumar*, *Director (Drugs), Department of Health & Family
Welfare*



------------------------------

[1] <#_ftnref1> See
http://www.ipo.org/wp-content/uploads/2014/09/DraftAgendaIndiaTrip_10062014.pdf

[2] <#_ftnref2> See
https://www.ipo.org/imis15/Commerce/about-ipo/Corporate_Members/Commerce/Membership/Directories/Corporate_Members.aspx?hkey=8dfadb8d-c360-4022-b550-2fbb6d4ebed1



[3] <#_ftnref3> *See our letter to the Indian Prime Minister  *
*https://donttradeourlivesaway.files.wordpress.com/2013/01/letter-to-pm-on-herceptin_final.pdf*
<https://donttradeourlivesaway.files.wordpress.com/2013/01/letter-to-pm-on-herceptin_final.pdf>


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