The deafening global outcry and the Indian government's veiled threat of invoking 'compulsory licensing' seem to have played a key role in shaping the Novartis' rather unexpected decision not to move Supreme Court to appeal against the recent Madras High Court verdict. In a landmark order, the court had struck down the Swiss drug giant's plea challenging the constitutional validity of the sect 3 (d) of the Indian Patents (amendments) Act 2005.
But, much against its public stand that it will move SC if the decision is not in its favour, Novartis India Ltd vice-chairman and managing director Ranjit Shahani was in haste to issue a press release immediately after the court delivered its verdict saying that though the company disagrees with the court order, it will not move SC. "We disagree with this ruling. However we will not appeal to the Supreme Court", he had said. Till the other day, Novartis has been saying that it will move SC if the decision is not in its favour.
Industry experts are of the view that though the Basel-based Novartis had earlier resolved to take the matter to its logical conclusion, several reasons might have contributed to its latest decision not to move SC. One of the major reasons is the increasing global opinion against it.
Definitely, global opinion has been increasingly shaping against the Novartis with several NGOs, Health Agencies and others raising their concern over the Novartis move. The Centre for Trade and Development (Centad), the All India Drug Action Network (AIDAN), the Indian Network for Persons Living with HIV/AIDS (INP+), the ActionAid India, the Campaign for Access to Essential Medicines -MSF and the lawyers collective HIV/AIDS Unit are some of the NGOs who joined hands to fight against the Novartis might on this issue. These NGOs had launched an international petition to put pressure on the Swiss pharmaceutical company to drop its legal challenge against India's patent law which could restrict access to affordable medicines in the developing world.
Another reason might be the veiled warning given by the Indian government on the matter. Union Health Minister Dr Anbumani Ramadoss was on record saying that the government would be forced to resort to the 'compulsory licensing' as the last resort. "Till now, India has not used compulsory licensing and we do have no immediate intention of using it. But, don't force us to use it," he had said, while commenting on the possibility.
Another reason is the Swiss government's refusal to interfere in the matter. As no individual company can move Dispute Settlement Body (DSB) of WTO located in Geneva, Novartis wanted the Swiss government to take up the issue with the DSB on behalf of it. But, Swiss government refused to take up the issue terming it 'a case between a company and Indian law'.
Sources said that the Swiss drug major had asked the Swiss government to challenge the section 3 (d) of the Indian Patent (amendment) Act 2005, in DSB immediately after the Indian patent office rejected its application for patent for its blockbuster cancer drug Glivec. "It is only after the Swiss government's refusal to join issue that the Novartis challenged Indian law on its own and filed a petition in the Madras HC", a senior industry observer said.
It may not be out of place to mention the reaction of the Swiss federal councillor in the department of economic affairs Doris Leuthard who had said in Delhi that the issue is between a private company and the Indian judicial system and the Swiss government did not have anything to do with it. "We are out of it", she had said.