Comments by Brook Baker: Bayer appeals against compulsory licence order

Source: Health GAP

Professor Brook K. Baker

7 May 2012

Just as Novartis appealed from an order denying its patent application
on Glivec, Bayer has now appealed the granting of a compulsory license
on Nexavar,  Rather than honestly state that it likes selling its
cancer medicines for $67,000 to only the richest patients in India,
which means that only 200 or so patients get the medicine instead of
the tens of thousands who need it, Bayer still makes a nifty profit of
nearly $13 million dollars on those sales.  If the price excludes the
99%, that’s fine with Bayer – that’s the logic of what it calls the
international patent regime.

Bayer makes three claims in support of its decision to appeal.  First,
it notes that there are other roadblocks to access to medicines for
poor patients in India as revealed by the fact that many patients do
not get access to even non-patented medicines on the essential drug
list.  This is the trivial argument Big Pharma has been making for
years to cover the impact of its monopoly pricing policies.  Of
course, there are other barriers to access, but does Bayer want to
seriously argue that medicine priced 60 times more than the newly
announced Cipla price doesn’t adversely impact access?

Second, Bayer argues that one compulsory license on one
hyper-expensive cancer medicines threatens the international patent
regime.  Of course, there is no truly uniform international patent
regime, but to the extent there is, that patent regime routinely
allows for compulsory licensing.  Bayer got its 2008 patent on Nexavar
fully cognizant that the India government was entitled to issue
compulsory licenses whereby it would receive royalties on sales by
generic licensees.  No foul play here – just the exercise of a
governmental right clearly codified in India law (and in the US and
most other countries as well).

Third, Bayer makes the cynical argument the that research and
development empire will crash and burn if it can’t exclude sales to
tens of thousands of Indians so that it can profit from monopoly sales
to a few hundred.  The immoral hubris of this false claim – where
Bayer makes billions in profits on sales primarily in rich countries
and to rich elites in poor countries – is staggering.

Bayer can, of course, challenge the CL granted; it has the money and
legal firepower to try to beat India into submission.  But India is on
record that it will not be held hostage to monopoly pricing and it has
the legal tools to beat Bayer’s frivolous appeal.  Bayer should at
least be honest in touting its attempt to hold on to the patent goose
that lays the golden egg – “we want to maximize profits, India be
damned, full stop.”

Professor Brook K. Baker
Health GAP (Global Access Project) &
Northeastern U. School of Law, Program on Human Rights and the Global Economy
Honorary Research Fellow, Faculty of Law, Univ. of KwaZulu Natal, SA
400 Huntington Ave.
Boston, MA 02115 USA



This entry was posted in Compulsory Licensing, Indian Patent Law, Innovation, TRIPS flexibilities and tagged , . Bookmark the permalink.

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