[Ip-health] Text of Korean decision in Glivec case

[James Love]

 From the decision, note the emphasis on "infectious" or "extremely
dangerious situation," which is of course the limitations that Lamy and
Zoellick have been pushing publically.   Jamie


*   "If Glivec is imported at a lower price, it will be
possible to reduce the financial burden of patients who
desperately require Glivec to treat leukemia. However, CML
is not a disease that is infectious or may cause an
extremely dangerous situation in our nation or society.

*  "All of the CML patients (including those who in chronic
phase) are currently covered by health insurance. The
patients actually bear about 10% of the price fixed and
announced by the Ministry of Health & Welfare.

http://glivec.jinbo.net/Decision_CL_Glivec.htm

  Decision on the Request for Adjudication for the Grant of a
                     Non-Exclusive License
      (Original Korean Text of the Decision in PDF format)

1. Petitioners:   Korean Pharmacists for Healthy Society
                   (Representative: Byeong-Do LEE)
                   2nd Fl., 8-4 Myungryundong 2-ga, Jongro-gu,
                   Seoul
                   Association of Physicians for Humanism
                   (Representative: Chang-Ui HONG)
                   2nd Fl., 8-4 Myungryundong 2-ga, Jongro-gu,
                   Seoul
                   People's Health Coalition for Equitable
                   Society
                   (Representative: Kyun-Bae PARK)
                   Shinsung B/D. 4th Fl., 8-48 Galwol-dong,
                  Yongsan-gu, Seoul
                  Attorneys: Hee-Seob NAM & Sunng-Ho PARK

2. Respondent:    Novartis AG
                   Schwartzwaldallee 215 CH-4058 Basel,
                   Switzerland
                   Attorneys: Yeong-Jun YANG, Man-Gi BAEK,
                                      Yeong-Hwan YANG & Bo-
                  Hyun PARK

3. Indication of  Request for Adjudication for Grant of a
the Case:         Compulsory Non-Exclusive License for Korean
                   Patent No. 261366 under Article 107,
                   Paragraph 1(3) of the Patent Act

4. Text of the    The Request Is Rejected.

Decision:

5. Grounds for the Decision:

The Petitioners requested adjudication for the grant of a
compulsory non-exclusive license for the invention (Glivec)
claimed in Korean Patent No. 261366 under Article 107,
Paragraph 1(3) of the Patent Act, seeking a finding that
Glivec can be imported from India =93for the public interest,=94
on the ground that many chronic myeloid leukemia (CML)
patients in Korea cannot afford to continuously obtain
Glivec prescription because of the unstable supply and high
price of Glivec.

The Korean Intellectual Property Office (=93KIPO=94) solicited
an opinion from the Mediation Committee for Industrial
Property Disputes (=93MCIPD=94) under Article 109 of the Patent
Act. In consideration of the opinion from the MCIPD and the
arguments of both parties, the KIPO makes the following
ruling.

1) If Glivec is imported at a lower price, it will be
possible to reduce the financial burden of patients who
desperately require Glivec to treat leukemia. However, CML
is not a disease that is infectious or may cause an
extremely dangerous situation in our nation or society. If
nevertheless a compulsory non-exclusive license is granted
for Glivec merely due to its high price, the basic purport
of the patent system, which is to grant an exclusive right
and interest to an inventor, thereby inspiring the public
with inventive mind and striving for the development of
technology and industry, will then become meaningless.
Accordingly, the two conflicting interests above should be
considered to determine whether a compulsory non-exclusive
license should be granted for Glivec.

2) All of the CML patients (including those who in chronic
phase) are currently covered by health insurance. The
patients actually bear about 10% of the price fixed and
announced by the Ministry of Health & Welfare. The supply of
Glivec is now stable. Also, it is possible to import
pharmaceutical products for self-care purposes according to
Article 14 of the Foreign Trade Act and Article 7 of the
Foreign Trade Management Regulations. In consideration of
such present situations relating to the supply of Glivec, a
compulsory license for the patented invention (Glivec) is
not considered to be necessary for the public interest as
prescribed in Article 107, Paragraph 1(3) of the Patent Act.
Therefore, a decision is hereby rendered to the effect as
stated in the Text of the Decision.

February of 2003

The Commissioner of the Korean Intellectual Property Office


--
James Love, Director, Consumer Project on Technology
http://www.cptech.org, mailto:james.love@cptech.org
tel. +1.202.387.8030, mobile +1.202.361.3040