[Ip-health] Re: Ip-health digest, Vol 1 #2262 - 14 msgs

[Gopa Kumar]

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[ Picked text/plain from multipart/alternative ]
Dera All,

Please fax or  email Law Secreatary , Governmnet of India  or Miniister of
law and demand that Solicetor general of india should appear in Novartis
case


On 15th & 16th February, the Madras High Court heard the Novartis challenge
of the Indian Patent law. The case has started with lawyers from Novartis,
Cancer Patient Aid Association, lawyers representing Indian generic
companies and a local government lawyer literally crowding the courtroom.



Novartis will now have an opportunity to argue before the Madras high court
in Chennai that section 3(d) of the Indian Patent Act is not in compliance
with TRIPS and that it violates Article 14 of the Indian Constitution.
Section 3 (d) is the provision that protects against extension of patent
monopolies on essential medicines. It is now clear that Novartis is not
withdrawing the case at this stage. the pressure to drop the case therefore
must continue.



On the issue of constitutionality of the Indian patent law, the government
s constitutional expert, the Solicitor General of India was not present in
court at the time of arguments. The government has not appointed the
Solicitor General to argue the case, raising serious concerns about the
government s intention to defend the Indian patent law provision that
protects against extension of patent monopolies on essential medicines. In
the absence of the government s legal expert on constitutional matters,
Indian parliament s patent law and patient groups access to affordable
medicines is at stake.



Arguments from lawyers representing Novartis, patients, govt and the
generic companies are expected to take up several days or even weeks. the
next date of hearing is the 22nd of february.

How is the government defending section 3(d) and representing patients?

it is a matter of great concern that the government is not taking the
defence of the novartis challenge of the Indian patent law section 3(d)
seriously. the ministry of commerce who is representing govt, is not even
kept informed by the local govt counsel correctly about the date of the
hearing and till a few days ago thought that 25th feb was the next date of
hearing instead of 15th feb.

Novartis is seeking a declaration from the court that section 3(d) is not
TRIPS compliant and also that certain terms in the section are vague and
can lead to arbitrary decisions from the patent office and therefore
violates article 14 of the constitution. One aspect of article 14 i.e. (rt
to equality) is that laws should give guidance to the implementing
authorities, the Patent Controller in this case. it also is appealing
against the Glivec patent rejection.

now the govt needs to take this argument of Novartis seriously and appoint
a constitutional expert to represent and defend the patent law in court.
the Additional Solicitor General (a local lawyer, Gopalan) was not even
willing to file a reply to the amended petition filed by novartis that
seeks to raise the issue of section 3(d) unconstitutionality under article
14. this local lawyer further went on to share the confidential directions
of the ministry of commerce with everybody in court. he is simply not
equipped to defend the constitutionality of sec 3 (d) nor argue the
jurisdiction of a domestic court to decide on India s TRIPS compliance.

public interest groups in India feel that the solicitor general, Gulam E.
Vahanvati is the correct person to represent and defend the case in chennai
high court. besides the above to also counter the impact of legal
heavyweights appearing on behalf of novartis. Mr. shanti bhushan (ex law
minister of india) and Soli Sarabjee (ex solicitor general) are appearing
for Novartis.


The lawyers collective who is representing cancer patients in court is
putting up a good defence, however govt defence of the law is also
important. Indian organisations plan to campaign in the coming few days for
a competent constitutional expert of the government to be present to defend
the case.


please take this seriously and all efforts to mobilize political and public
pressure for the solicitor general s appointment must be speedened by
organisations around the world. the decision to appoint the solicitor
general is pending with the Secretary of the Law Ministry.

besides demonstrating in front of the indian embassy please write the
following letter (with additions etc as you feel fit) to the govt reps
listed below:

The public health safeguards of India's patent law have a very real and
human impact in our lives and those of millions of other patients - not
just people living with HIV, but those living with cancer, asthma, heart
disease, mental illness.



Today, we write to you to express our grave concern over the swiss
pharmaceutical company Novartis' legal action in the Chennai High Court to
challenge critical public health safeguards of Indian patent law.



Novartis will now have the oppurtunity to argue before the Madras high
court in Chennai that section 3(d) of the Indian Patent Act is not in
compliance with TRIPS and that it violates Article 14 of the Indian
Constitution. Section 3 (d) is the provision that protects against
extension of patent monopolies on essential medicines. the case was heard
on the 15 & 16 of February 07 and the next date of hearing is 22 February
07.



On the issue of constitutionality of the Indian patent law, the government
s constitutional expert, the Solicitor General of India was not present in
court on 15th & 16 February at the time of arguments. In the absence of the
government s legal expert on constitutional matters, Indian parliament s
patent law and patient groups access to affordable medicines is at stake.


We trust that the Solicitor General has now been authorised to take up this
matter and will be in the Chennai high court defending the sovereign right
of the Indian parliament to safeguard the health of its people and patients
across the world.



We look forward to your continued support for access to affordable
medicines and treatment and your commitment to the constitutional guarantee
of health and life.



please address the letter to:




Mr. T K Viswanathan
Secretary
Ministry of Law & Justice
4th Floor, A-Wing, Shastri Bhavan New Delhi - 110 001
Tel - 23384777, 23382902
FAX - 23387259
E mail: vnathan@nic.in<http://www.mail2web.com/cgi-bin/compose.asp?mb=3Dinb=
ox&mp=3DI&mps=3D0&lid=3D0&intListPerPage=3D20&messageto=3Dvnathan@nic.in&ed=
=3Dw2KHjkHxT0TaO8CSN8l6Q8g5gJ%2Bj1X9hyf26j3lZZh4SjUsUyr9F%2Fdy6148FBxVVaZEj=
F5vN%2FgzA%0D%0AbKosD8uN92eBTRqXb5WDFCVJ6FRBkhGTuIi5%2BwM9xWEsb0wT3sGRmPdxh=
O%2BWn3W7>

Mr. Hansraj Bharadwaj
Ministry of Law & Justice , 4th Floor, A-Wing, Shastri Bhavan New Delhi -
110 001.
Phone : 23387557, 23384777, 23384617
Fax : 011-23384241, 011-23387259, 011-23382733

Cc.
Sri Kamal Nath
Hon'ble Minster of Commerce & Industry
Room No. 45, Udyog Bhavan New Delhi
Tel: 91-11-23061008, Fax: 91-11-23062947

Dr. A K Dua
Secretary to the Government of India
Department of Industrial Policy and Promotion
Room No. 259, Udyog Bhavan
New Delhi 110011
Tel: 91-11-23061815, 23061667 Fax: 23062626
E mail: ajay.dua@nic.in<http://www.mail2web.com/cgi-bin/compose.asp?mb=3Din=
box&mp=3DI&mps=3D0&lid=3D0&intListPerPage=3D20&messageto=3Dajay.dua@nic.in&=
ed=3Dw2KHjkHxT0TaO8CSN8l6Q8g5gJ%2Bj1X9hyf26j3lZZh4SjUsUyr9F%2Fdy6148FBxVVaZ=
EjF5vN%2FgzA%0D%0AbKosD8uN92eBTRqXb5WDFCVJ6FRBkhGTuIi5%2BwM9xWEsb0wT3sGRmPd=
xhO%2BWn3W7>


Dr. Manmohan Singh
Hon'ble Prime Minister of India
The Prime Minister's Office
South Block, Raisina Hill,
New Delhi,
India-110011.
Telephone: 91-11-23018939
Fax: 91-11-23019334