The world is watching as India becomes a battleground for deciding pharma debates. The Delhi High Court?s interim order on the Roche vs Cipla case will be analysed down to its last molecule. And the next hearing, on August 6, will be a media event for sure. All this attention is unsurprising: cost-competitive India has the largest number of US FDA-approved pharma plants outside the US, its pharma companies are shopping abroad, and the pharma sector is growing at around 13% a year. In this growth story is a chapter that can be titled ?What about public health?? The public policy question in Roche vs Cipla centres around that. But it is important to consider some aspects of the legal case. India?s current patent law protects product patents but also allows pre- and post-patent grant opposition. Both are exercised by many parties. Cipla didn?t take this route. It first reverse engineered Roche?s drug, which has an Indian patent, thereby inevitably inviting a lawsuit and has then argued, among other things, that Roche?s anti-lung cancer drug, Tarceva, does not qualify for a patent. Whether or not it does is now for the court to decide. But Cipla?s unusual mode of patent opposition deserves scrutiny. The patent law is a law. The Tarceva patent is an application of that law. Is ignoring the law the best way to contest a particular application of it? This question has implications for pharma as a whole and, indeed, for public policy in general.
As for the public health issue, of course, lifesaving drugs that are cheaper are better. A debate is natural if patented drugs are ?too expensive? and out of reach for a huge majority of patients. But, and this is the critical issue that health campaigners don?t seem to address, will beating a few pharma MNCs in and outside courts solve the drug access problem? India?s public health expenditure is only 1% of GDP, and only 15% of spending on public hospitals goes for buying medicines. And why ignore private sector solutions like health insurance tagged to drug prices? Patents are meant to reward innovation. Let?s remember, there can be no cheap generics if there aren?t patented drugs to start with. It is after this that we should ask how much disincentive against innovation patent-holders can be asked to absorb.