Court rules public interest counts in patent fights
CAPE TOWN — The Supreme Court of Appeal has ruled that the broader public interest must be considered when weighing up the commercial interests of companies involved in patent disputes.
The judgment, handed down on Thursday, has been hailed by activists as precedent-setting, because they believe it will compel the courts to consider patients’ access to medicines when pharmaceutical companies fight over patents, which is fairly common.
“It will also be important in other product disputes that raise similar concerns … including medical devices or supplies, or water rights,” said Umunyana Rugege of lobby group Section27.
The row in this case is about docetaxel, branded Taxotere. Local generics firm Cipla Medpro and Aventis Pharma, a subsidiary of Sanofi Aventis in France, are fighting over Aventis’s patent, which Cipla maintains is invalid.
Taxotere is Aventis’s biggest oncology product in SA and global sales in 2010 topped €2bn, court papers say. It is also an important drug for Cipla, which wants to move into the oncology market.
Cipla launched a generic version of docetaxel last year, and challenged the validity of Aventis’s patent, which expires next year, in the Patents Court. Aventis sought an interim interdict to stop Cipla from selling its generic. The Patents Court declined to grant an interim interdict against Cipla, prompting Aventis to take the matter to the appeal court.
At this point the Treatment Action Campaign joined the fight, as friend of the court. Represented by Section27, it argued that the appeal court should consider the public’s interest in making a determination about the balance of convenience between the two parties, the test applied in decid- ing on an interim interdict. The appeal court ruled that in this case public interest concerns did not weigh in favour of allowing Cipla to sell its generic pending the outcome of the Patents Court trial, partly because Cipla’s drug was not significantly cheaper than a generic version by Aventis.
Aventis had to give an undertaking that it would not withdraw its generic or raise its price after the judgment.