[Ip-health] SPICY IP Breaking News: Bayer vs Natco CL update

Thirukumaran Balasubramaniam thiru at keionline.org
Mon Mar 4 02:25:46 PST 2013

This was posted by Shamnad Basheer to the Spicy IP list on 4 March 2013.


Subject:        SPICY IP Breaking News: Bayer vs Natco CL updates

Justice Sridevan, Chairman of the IPAB began dictating her order in open court in the much awaited Bayer vs Natco compulsory licensing (CL) decision. Bayer had appealed the Controller General of Patents' decision to grant a CL to Natco on grounds that the patented cancer drug Nexavar was excessively priced and did not satisfy the reasonable requirements of the public. Most controversially, the patent office also held that the patent was not worked in India and this alone constituted a ground for CL. Apparetly the judge began dictating her order at 11 am and has taken a break only now for lunch. She has traversed arguments made by counsels and her findings only on 3 issues thus far. On these 3 issues, she held:

1. The CG (controller general) need not hear the patentee prior to making a prima facie evaluation that a case for CL exists. It is only after the said prima facie evaluation that the patentee need be heard on whether the CL shld be granted or not.

2. Natco's offer for voluntary licence was valid in law and once it received a refusal, it was not bound to go back to Natco. As the judge quipped during the interim order phase: Clearly Barkis was not willing!

3. Cipla's sale does not aid Bayers case in any way, particularly since Bayer sued Cipla for infringement.

The remaining issues (main ones will be taken after lunch). We'll keep you posted! Thanks to Saranya, who will carry a fuller post late


Thiru Balasubramaniam
Geneva Representative
Knowledge Ecology International (KEI)

thiru at keionline.org

Tel: +41 22 791 6727
Mobile: +41 76 508 0997

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