Thursday, September 8, 2011

Patent evergreening in Thailand

India's 2005 Patent Act amendments included the controversial section 3d which excludes subject matter which does not increased efficacy. This prevents incremental additions to patented inventions giving rise to further patents. The pharma industry came under particular fire for 'evergreening', such as changing formulations in order to file new patents, thereby adding further 20 year terms of protection.

Thailand has for some time also been a country where pharma companies have been subject to pressure on the patents (most especially compulsory licensing of certain pharma patents in cases of national emergency).

Now the Thai Health Systems Research Institute is urging amendments to the Patent Act along the same lines as India. They assert that of some 2000 patents granted during the last 10 years, over 1900 are examples of evergreening because they are mere changed formulations, alternate medical uses or chemical selections. They assert that these patents (almost entirely foreign owned they add), enable big pharma to retain greater profits by keep drugs on derivative patents long after the basic chemical or molecule patent expires.

Citing Bristol-Myers Aids drug Atazanavir for which a patent was granted in 1997 they say that a 2005 patent focused only on further medical uses and a 2008 patent on the formulation. They promise more research on this subject  in 2012.

IP Komodo has some sympathy for the pharma industry because formulations, medical uses and chemical composition are genuinely useful innovations, from molecule patents, which can often teach nothing on how to treat a patient. To prohibit them absolutely runs a risk of removing patent protection altogether from certain drugs, thereby rendering the patent bargain by which innovation costs can be recouped as useless.

A great deal of research now points to incremental innovation being the most common way successful products are created. If incremental innovation is not patentable, could countries banning it hobble their own innovative industries who may struggle to commercialise products with no IP protection?

The issue in India is by no means settled since only 2 days ago the Indian Supreme Court began hearing arguments in Novartis' challenge to section 3d. As the world watches the India case, other countries are clearly looking to get in on the act of restricting patent protection.  

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