Site icon Duncan Bucknell

What do KSR and Novartis' Indian Glivec troubles have in common?

The September edition of Denise Howell’s excellent ‘This Week in Law‘ podcast series features guest appearances by patent bloggers Steve Nipper, Matt Buchanan, and Brad Frazer.
If you’re looking for an easy to understand summary of recent events in US patent law, then I recommend it.

One of the discussion points concerned the impact of the recent US Supreme Court decision in KSR v Teleflex on the US patent system. The panel in my view wisely concluded that time (and I would suggest a few well-litigated cases) will tell the extent to which the case has dramatically changed US practice.

The KSR opinion is quite detailed and full of statements which will no doubt become the basis of many future cases. One of these is of particular interest – the comment about routine innovations being obvious. To my mind, this speaks to the very same issue being litigated by Novartis over Gleevec in India (in relation to section 3(d) of the Indian Patent Act). And this is the argument many people use to support 3(d) – that it is merely an obviousness standard. In other words, mere innovations are not capable of patent protection. (Except in Australia, which has Innovation Patents designed specifically to have an extremely low threshold of ‘inventiveness’ – much easier to meet than obviousness.)

The question is, should such things be codified, or should they be left to the courts to decide? If they are to be codified, should they be drafted in terms of obviousness, or is it ok (as in the case of 3(d)) to draft them in terms of patentable subject matter? These are not merely esoteric questions, especially since another 10 Asian countries are reportedly considering enacting provisions similar to India’s 3(d).

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