With Landmark Natco Decision, Kurian Exits the IP Office

P.H. Kurian flies home to Kerala today on a wing and a high. His last decision as the Controller General, Patents, has meant that kidney cancer patients have access to a drug that can elongate their life by months. The landmark judgment has issued Natco, a Hyderabad-based company, a compulsory license agreement to produce the generic version of Bayer’s drug, Nexavar. This allows the drug to be sold at Rs 8,800 for 120 tablets, which is almost 60 percent cheaper than the other market alternative by Cipla, which sells it at Rs 28,800.

The judgment, is bittersweet for the patent office as it loses a man who was truly a breath of fresh air in an office that was known to be very corrupt. His appointment came directly from the Prime Minister’s office (PMO), which was actively looking for an honest hand to help bring the office to global standards. In 2010, our story here, we highlighted Kurian’s work, which has revolutionised the way the patent office functioned. In spite of being under enormous pressure, Kurian never budged on what he thought to be right. He has an infectious sense of humour for someone who has been an IAS officer for the last 25 years.

Although Kurian was supposed to leave by November last year – he took up a post in the then newly-formed Chandy government -- he stayed on in the patent office as the PMO’s office had to find a suitable replacement. This worked out well for Natco, which applied under section 84 of the Indian Patents Act, which states:

“(1) At any time after the expiration of three years from the date of the 1[grant] of a patent, any person interested may make an application to the Controller for grant of compulsory licence on patent on any of the following grounds, namely:— (a) that the reasonable requirements of the public with respect to the patented invention have not been satisfied, or (b) that the patented invention is not available to the public at a reasonably affordable price, or (c) that the patented invention is not worked in the territory of India.” 

Kurian, in his exit with this judgment has opened the flood gates for an entire discussion to evolve around compulsory licensing. “This will alter the landscape for the MNCs in the pharma industry,” says Shamnad Basheer, professor of IP law, WB National University of Juridical Sciences, “as they need to take a relook at their pricing. The order also implies that MNC pharma companies will get hit by compulsory licensing if they do not manufacture the drugs locally.”

What Natco has done is significant as it will give others the confidence to use this provision. Earlier, there were a variety of reasons no company tried this: they did not want to be the first mover, the legal cost involved, says  Basheer.

Sources within the patent office say the decision will have a far reaching impact as the drug will be available for sale irrespective of a challenge by Bayer.

While the industry will try to figure out what this means for the generics business, MNCs, and patients, Kurian looks forward to his coming stint as part of the Kerala government. He has made his exit exactly like a ‘bullet’, a nickname fondly given to Kurian by Basheer.

The thoughts and opinions shared here are of the author.