Novartis case – Professor Shamnad Basheer’s academic intervention before the Supreme Court

Prof. Shamnad Basheer, Ministry of HRD Chair Professor for Intellectual Property at the National University of Juridical Sciences, Kolkata recently was arguing in the Novartis case in the Supreme Court as an academic intervenor. This is a first of its kind academic intervention in over 60 years..A lawyer who witnessed his arguments told that, “On the first day, he was on for a little over 2 hours, explaining to the Court the scope of Section 3(d) and the various underpinnings of its application to the pharmaceutical industry. His arguments were logical, uncluttered, and with a delightful sprinkling of anecdotes and examples, including quoting Ogden Nash.”.Prof. Basheer argued that, “under the present set of facts and the evidence filed, the new form does not cross the section 3(d) hurdle”. This meant that Novartis should not be granted a patent. Prof. Basheer also argued that, “a drug though highly priced cannot be rejected Patent on that ground.” However, he also submitted that, “the patent regime includes provisions such as compulsory licensing and government use provisions for controlling the ex post abuse of a patent including selling patented products at excessively high prices.”.Prof. Basheer speaking to Bar & Bench said, “I am deeply grateful to Justice Alam and Justice Desai for offering me a good 5-6 hours to present my submissions and for having paved the way for future academic interventions. I made it quite clear at the outset that I was keen on intervening in order to contribute to the development of patent law and that the specific legal propositions advanced by me went far beyond the specific facts of this one particular case. I also made it clear that I was taking a purely issue based approach, with some of my propositions favouring one side to the dispute and others favouring the other side. Though the overall tenor of my submission was that, under the present set of facts, Novartis effectively had not made out a case for the grant of a patent.”.Prof. Basheer added, “I was honestly surprised at how quickly the judges’ grasped complicated concepts of patent law which as many know are beset with esotericisms of every sort. Having been privy to the rather sharp questions posed by the judges, I am fairly confident that they will come up with a very well reasoned judgment that will contribute significantly to patent jurisprudence in our country and serve as a light-post for many years to come.”.On asking what prompted him to intervene, Prof. Basheer said, “this intervention was really spurred by my counsel, Gopal Sankarnarayanan who has been speaking to me for many years now about cultivating an academic amicus curiae culture in India. I am deeply grateful to him for having shepherded me through the process, training me on reading the mind of the court, and even contributing significantly to the quality of my submissions to the court (the term “eradicative” efficacy” as used in my submissions is something that he came up with). Also, I am very grateful to Rohit Mammen, a dear friend and leading Apex Court lawyer, and Vikas Mehta and Aditi Bhat, who filed the intervention on my behalf, and several others who provided valuable tips and bolstered the efficacy of my submissions to the court. Lastly, I have to really commend Jay Sanklecha, Sree Mitra and many other outstanding law students who helped me with research on this case.”.Prof. Basheer further added, “the experience was as much exhilarating as harrowing, as I had to contend with certain counsels who were not very welcoming and even hostile, and I must commend every litigator who has to put up with this day in and day out. I could have never done it and academia seems a safe refuge for many of us who lack the mettle to handle this intensely adversarial process.”.Professor Basheer in his written submission ends: “For all the above reasons, it is submitted that the rejection of a patent based on excessive price of the final patent product has no basis in Indian patent law.”.The Supreme Court started hearing the final arguments in the case on September 11, 2012, with Senior Advocate Gopal Subramanium for Novartis being the first to present their arguments. The hearing is expected to conclude by the end of November..Read Written Submissions of Professor Shamnad Basheer