n Law, Democracy & Development - After the judgment - 'Evergreening' will never be the same again!

Volume 18, Issue 1
  • ISSN : 1028-1053
  • E-ISSN: 2077-4907



For South Africa, the decision handed down by the Indian Supreme Court in the case could not be more timely. As South Africa's legislators and policymakers ponder a new draft intellectual property (IP) law, they would do well to take heed of the import of this decision. While on the face of it the case involved "evergreening" - the claim for a patent on an incremental improvement of an existing cancer drug (as opposed to a "genuine" innovation) - the decision has significance far beyond the question of which medicines ought to be patented. It is instructive in that it impacts the discourse on a wide range of issues, such as: a country's ability to design a patent regime according to its specific conditions and context; the role of the courts and whether patent disputes may be resolved on narrow legal and technical arguments, or whether the wider context of the interests of society at large is to be considered; and the ramifications of this decision on the role of India's generic manufacturers in facilitating the accessibility and affordability of much-needed medicines in developing and least developed countries. This article traces the genesis of Indian patent law with regard to the protection of product patents for medicines, reviews the changes brought by the TRIPS Agreement and India's measures to become compliant with this international regime, reviews the legal and policy arguments raised in the case, and discusses the implications of this decision on other developing and least developed countries in terms of access, policy considerations and legislative choices when crafting appropriate laws.

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