May 062012
 

Just as Novartis appealed from an order denying its patent application on Glivec, Bayer has now appealed the granting of a compulsory license on Nexavar. Rather than honestly state that it likes selling its cancer medicines for $67,000 to only the richest patients in India, which means that only 200 or so patients get the medicine instead of the tens of thousands who need it, Bayer still makes a nifty profit of nearly $13 million dollars on those sales.  If the price excludes the 99%, that’s fine with Bayer – that’s the logic of what it calls the international patent regime.

Bayer makes three claims in support of its decision to appeal.  First, it notes that there are other roadblocks to access to medicines for poor patients in India as revealed by the fact that many patients do not get access to even non-patented medicines on the essential drug list.  This is the trivial argument Big Pharma has been making for years to cover the impact of its monopoly pricing policies.  Of course, there are other barriers to access, but does Bayer want to seriously argue that medicine priced 60 times more than the newly announced Cipla price doesn’t adversely impact access?

Second, Bayer argues that one compulsory license on one hyper-expensive cancer medicines threatens the international patent regime.  Of course, there is no truly uniform international patent regime, but to the extent there is, that patent regime routinely allows for compulsory licensing.  Bayer got its 2008 patent on Nexavar fully cognizant that the India government was entitled to issue compulsory licenses whereby it would receive royalties on sales by generic licensees.  No foul play here – just the exercise of a governmental right clearly codified in India law (and in the US and most other countries as well).

Third, Bayer makes the cynical argument the that research and development empire will crash and burn if it can’t exclude sales to tens of thousands of Indians so that it can profit from monopoly sales to a few hundred.  The immoral hubris of this false claim – where Bayer makes billions in profits on sales primarily in rich countries and to rich elites in poor countries – is staggering.

Bayer can, of course, challenge the CL granted; it has the money and legal firepower to try to beat India into submission.  But India is on record that it will not be held hostage to monopoly pricing and it has the legal tools to beat Bayer’s frivolous appeal.  Bayer should at least be honest in touting its attempt to hold on to the patent goose that lays the golden egg – “we want to maximize profits, India be damned, full stop.”

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