Indian patent office strikes down another blockbuster patent
The Kolkata Patent Office has refused divisional patents related to Swiss pharmaceutical company Roche’s breast cancer drug Herceptin.
The news comes days after the Indian Intellectual Property Appellate Board revoked a patent for GlaxoSmithKline’s breast cancer drug Tykerb, on the grounds that it was an incremental innovation that is not adequately inventive.
Roche filed three divisional applications for patents related to Herceptin. According to a statement released by the Kolkata Patent Office on August 5, requests for patent examinations were filed too late, and Roche’s agent did not attend the hearings.
The patent office controller found that Roche’s applications were filed improperly, and treated them as abandoned.
A spokesperson for Roche told WIPR it was now considering a further course of action.
“Beyond that we are only aware of the reports regarding the Herceptin patent from the media coverage in India, so we cannot comment or speculate,” she added.
The decision is the most recent in a series of rulings that highlights the challenges brands face when trying to crack the Indian pharmaceuticals market.
In 2012 Roche changed tack in its strategy to enter the market, signing a manufacturing contract with Indian pharmaceutical company Emcure Pharmaceuticals to sell Herceptin and another cancer drug MabThera at a cut price.
Jason Rutt, head of patents at Rouse in London, said: “Indian patent law in the pharmaceutical sector is under all sorts of scrutiny at the moment, but this looks more cock-up than conspiracy.”
“To an outsider, the administrative requirements for filing and obtaining a patent can look positively Dickensian or Kafkaesque in their complexity – this is the case in most countries,” he said.
“The consequences for failing to attend to these correctly can often be the loss of the patent application. The statement by the Indian patent office suggests the loss of the application is result of such an error by Roche’s Indian patent agents.”
He added that the decision may be appealable, which would give Roche an opportunity to revive the application depending on the circumstances of the alleged error.
