Pharmaceutical Patent Enforcement in India

Professor Shamnad Basheer

Abstract

Since the advent of a pharmaceutical patent regime in 2005, the number of patent litigations in India has witnessed a sharp spike. However, courts are still grappling with the correct standards for the grant (or non grant) of an injunction or a restraining order. We consider some of these cases with a view to evolving policy suggestions that cater appropriately to the specific milieu of India.

Given the relative immaturity of Indian courts in handling patent cases, our main suggestion is that the relief of temporary injunction be done away with in complex patent cases, where the defendant mounts a credible challenge to the validity of the patent. In other words, we recommend that in a vast majority of patent disputes, courts do away with the interim phase and move directly to the trial stage; a suggestion that interestingly is coming to be already implemented by the Supreme Court.

Though specific to India, our suggestions could prove useful for a number of other countries (particularly developing countries) that are new to patent cases. Our specific focus will be on pharmaceutical patent cases.

Many of our policy suggestions depend on the “institutional” competence of various bodies hat play their respective roles in the patent registration and enforcement drama.

Conference Paper