Resurrecting Roscoe Pound in Section 3(d): The Glivec Governance

Abstract

Every ‘new modern’ law today finds itself rooted in Sociological Jurisprudence. The reason the paper uses the phrase ‘new modern’ is to emphasize that the two may not always coexist at the same time. The Patents Act, particularly after the 2005 amendment conforms to this phrase. However, amongst other realms of Indian Patent law, Section 3(d) of the Patents (Amendment) Act, 2005 has been analyzed herein, from Pound’ perspective of jurisprudence and his theory of conflicting interests.

Pound’ theory classifies interests into individual, social and public interests and we find a brawl between these classes of interests in S. 3(d). The interest of a patentee in his drug is an individualistic one, but granting a patent to a derivative, may go against public interest; while in other cases, the other patentability criteria may weigh over, proving quintessential to the drug, hence patenting the drug may have an impact on sociological interests- whether in favour or against the society (or the patentee), depending upon the “yardstick” or in Pound’ terms, the “balancing metaphor” employed to draw a consensus amongst conflicting interests.

One of the primary criticisms appending Pound’ theory centers on bringing a balance between conflicting interests, or in other words determining the appropriate yardstick.

Examining Section 3(d), the paper deduces that the only bottleneck in determining the inherent battle of interests is the lack of a determinate definition for “efficacy”, which should be the only yardstick. The paper also probes into the Glivec case and “therapeutic efficacy” as defined there under, to depict the same as an inefficient universal scale to determine the tug of war between various interests.

Keywords: Patents, Glivec, 3(d), Pound

JEL Classification: Patents, India