BAYER CORPORATION V. UNION OF INDIA BY CHIRAGH DEVAL @LEXCLIQ

BAYER CORPORATION V. UNION OF INDIA

INTRODUCTION

Intellectual Property Rights has been now an important part of every field. Where it deals with several things that relate to the law like patents, trademarks, Copyright, and Design. These all fields have different laws and different provisions which protect their rights from getting infringed by anyone else.

FACTS OF THE CASE
On 3rd March 2008, the petitioner Bayer Corporation was granted a subject patent for their drug “Sorafenib Tosylate” and Nexavar was the name on which it was sold. Basically, the drug was used for the treatment of liver and kidney cancer. Natco who was an Indian company approached Bayer corporation for a grant of a voluntary license so that they can sell and produce the drug in its name at the price of Rs.10,000 per month as against the expensive price of Rs. 2,80,428 per month that was charged by the petitioner. Natco’s application got rejected by Bayer corporation for granting the voluntary license.

The patent drug could only be manufactured and sold by a third party when it has permission from the patent holder. An application was filed under Section 84(1) of the patents act, 1970 by Natco, which was under the controller general of patent so that they could get a compulsory license to manufacture and sell the Nexavar in India. The non-exclusive, non-assignable compulsory license was granted on 9th March 2012 to Natco and sell the patented drug at Rs. 8,800 and also directed them to pay the royalty 6% of its net sales to petitioner Bayer till the time of the patent.

IPAB intellectual property appellate board got an application under appeal by the Bayer corporation in the order of compulsory license contending that the order passed was in contravention with the Patents Act. Board also rejected the same then Bayer corporation challenged both the orders of 2012 and 2013 in the Bombay High Court.

ISSUE OF THE CASE

-Whether the Compulsory license granted by the controller is following the provision of the Patents Act?

-Did the respondent Natco make efforts to obtain a voluntary license from patent-holder Bayer Corporation?

JUDGEMENT

The court also and rightly dismissed the petition. The judgment that was made by the court was very clear that Natco fulfilled all the requirements that were given under section 84(1), and the controller was also right in granting the compulsory license to Natco.

Petitioner lacked while filing the application which made his case so incorrect and as a patent holder it failed to meet the reasonable requirement for the test of public use of a drug, not only this but they failed to prove that the drug patented is not ‘worked in the territory of India’.

The Delhi High Court decision was to widen the scope of application of bolar exemption by providing a wider and liberal general interpretation to the word ‘sale’ and thus the court clarified that no one can misuse the rights of patent and their goodwill. Hence the case petition of Barley Corp. was dismissed and the court upheld the earlier decision of IPAB.

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