Tuesday, September 01, 2009

Justice Katju Recuses Himself from the Novartis Patent Case

In a recent post on SpicyIP, I commented on a rather strange twist in a very controversial Indian patent cases involving Novartis' patented anti cancer drug, Glivec and an opposition to this patent by both leading Indian generic companies (such as Ranbaxy, Cipla and Natco) and public health advocates. For the sake of convenience, I reproduce the post below:

"The Novartis Glivec saga took a rather strange twist at the Supreme Court, with Justice Markandey Katju recusing himself from hearing the matter.

As noted in a previous blog post, the Intellectual Property Appellate Board (IPAB) held, in what could only be termed as a flight of legal fancy, that since the price of Glivec was too high, it was against "public order" and therefore a patent ought not to be granted in favour of Novartis! It also ruled against Novartis on the grounds of violating section 3(d)--a ruling that may have been a sound one, but for the small quirk that it was also held, in the same breath, that the drug was "inventive".

Naturally, Novartis appealed, hoping that the Supreme Court would, at the very least, rescue Indian patent jurisprudence from the hands of a flighty IPAB and secure it in more legally tenable moorings. Since the rejection by the IPAB is also based on section 3(d), and standards of determining efficacy are not terribly clear, it is well nigh impossible to predict which way the Supremes are likely to rule.

As the matter came up today, Justice Katju noted, with a poker face, that it may not be proper for him to sit in on this case. The rumour mill was soon set in motion, and a dozen theories soon emerged.

One such theory is that he authored a piece in the SCC Journal in 2004 that was critical of pharma patents and MNC's. Titled "Intellectual Property Rights and the Challenges Faced by the Pharmaceutical Industry", he took the reader through the basics of the Indian patent regime and then concluded by noting that:

"The concern of the developing countries, when they are opening their vast markets for international trade by adding safeguards against undue monopolistic exploitation of vital knowledge, techniques or life-saving drugs needs to be taken note of to draw up acceptable standards for protection of intellectual property rights and ensure fair international trade and commerce and bring about some sort of uniformity in this field for all the “convention” countries to follow."

In other words, a balance has to be struck between the need to give monetary inducements to new inventions, and making available these inventions to the broad masses in the underdeveloped countries at affordable prices. At present it is felt that many of the medical drugs available in the market are too costly for the poor people in India. Ways and means should therefore be thought out for making these drugs available to the masses at affordable prices, while at the same time giving inducement to the inventors to continue their research."

I cannot, for the life of me, fathom as to how such a view may be seen as reeking of bias against big pharma patents. In fact, the statements above appear to be quite tempered and balanced. Perhaps he was being overcautious--and if that is so, that will be a "first" for Justice Katju, who is known more for throwing caution to the wind. For those interested, see my article documenting a rather controversial statement, where he equated all bearded individuals with the Taliban.

What is perhaps most paradoxical about this issue is that despite strong allegations of bias, Mr S. Chandrasekharan, former head of the Indian patent office, refused to recuse himself as a member of the IPAB, during an appeal filed before it by Novartis against the rejection of the Glivec patent by the Indian patent office. Contrast this with the Honourable Katju who appears to be taking the "Justice must not only be done but seen to be done" aphorism to altogether new heights. Of course, all this assumes that Justice Katju was indeed recusing himself for his innocuous statements published in 2004. And not for some other reason.

Net result: The matter is likely to come up before another bench on Friday or Monday. One hopes that unlike the judges in Roche vs Cipla, the Supremes will not throw away this brilliant opportunity to clarify the scope and ambit of section 3(d), a section that appears to be severely creased."

Pursuant to the post, an anonymous commentator wrote in to inform me that "...Justice Katju made some patently anti-patents comments during World IP Day. That may be the reason he recused himself." I'm not sure what the content of his speech really was, but if it did reflect a view that was hostile to multinational pharma patents, the judge did the right thing by recusing himself.

Are there any decisions out there dealing with the issue of recusals, conflicts of interest, perceived bias and the like? Or leading cases that our readers are aware of where judges voluntary recused themselves or were forced to do so?
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