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India’s Take On Evergreening Or Secondary Patenting

The blog describes India's take on evergreening or secondary patenting. Read on to know more about evergreening of patenting in India.

For decades, India has refused to accept widespread secondary patenting or evergreening of international drug manufacturer patents under Section 3(d) of the Indian Patents Act of 1970. Altering pharmaceuticals to extend their copyright period and revenue is known as evergreening patents. By forbidding evergreening, India is not only assisting local copycat medication manufacturers but is also assisting thousands of people that can afford the steeply modified medicines.

Patenting For The First Time

Each drug that enters the industry has a longstanding experience, beginning with its early phases of development and ending with its presence on the counter of our local chemist. Therefore, the initial step taken by these scientists and drug manufacturers is to seek intellectual property protection for the recently found medicine in the shape of primary intellectual property. A patent encourages innovation by rewarding innovators for their discoveries and giving the medication a 20-year exclusivity in the marketplace.

Guidance: How to apply for a Patent?

Development Of Evergreening Or Secondary Patenting

The expiry of a 20-year license allows generic prescription medications to enter the market comparable to branded drugs in prescription, dosage, method of administration, purity, effectiveness, and indicated use. However, it is sold lower because it does not have a brand name. On the other hand, the introduction of generics slows down the economy for such large pharmaceutical businesses.

Pharma companies are scrambling to explore innovative ways to delay their monopoly due to the possibility of a substantial drop in income caused by the release of their breakthrough treatments. For example, businesses have employed a practice known as supplementary patenting or evergreening for the past several decades to keep imitation businesses out of the marketplace for long, allowing them to enjoy the advantages of their pharmaceuticals for way too long, 20 years permitted by law. Secondary patenting, also known as evergreening, is performed by obtaining further patents on variations of the same medicine, such as novel routes of administration, dosages, mixtures, or methods.

This method is most successful and profitable when used to protect their breakthrough drugs, generating large annual profits. However, according to critics, these subsequent patents obtained after altering the initial inventions meet very low creativity and creativity requirements, and the increase in health results is minor or non-existent.

Secondary patenting rules also apply to biologic drugs (very efficient pharmaceuticals manufactured within microbial organisms that are sold at a premium cost) — the new large competitors in the pharmaceuticals sector. The intricacy of biomolecules necessitates filing several patents for a single drug, inflating the cost for the general population can purchase it. As a result, in many nations, such as the United States, the patent system plays a crucial part in establishing tactics like evergreening to aid the vast multinationals to make a profit while keeping medicine prices.

The Indian Perspective On Evergreening And Secondary Patenting

The United States’ intellectual property law acknowledges, welcomes, and supports evergreening, which has been advantageous for the pharmaceutical industry’s behemoths, who have been prolonging exclusivity by introducing versions of their already patented pharmaceuticals into the marketplace. India, on the other hand, prohibits evergreening. For instance, AbbVie, a pharmaceutical behemoth, has raised the price of Humira, the nation’s most OK biologic prescription medication in the United States, by 100% due to multiple secondary patents. As a result, Humira charges $1,300 (Rs. 85,000) in the United States but just $200 (Rs. 13,500) in India, thanks to the Indian Patent Office’s (IPO) denial of secondary copyrights on Humira, allowing cheaper equivalents to make it to market.

“The simple revelation of a new style of a specific compound, or the revelation of any new house or new use in a specific compound, or the use of responses occur, computer, or gear unless the defined process outcomes in a new device or hires at least one fresh reagent is not copyrightable,” according to Section 3(d) of The Patents Act of 1970. As a result, Indian IP legislation, which deals exclusively with such discoveries, can be considered an innovation in and of itself. Indian intellectual property laws are setting a good example and spearheading the struggle against evergreening, ensuring open access to generic drugs for a greater good, namely population health.

The paradox is that the government that established one-of-a-kind restrictions to prevent fraudulent pharmaceutical patents is now happily allowing such patent rights to pass unchallenged. The paradox is that the US and a powerful lobby of global medicine firms have put enormous pressure on India to implement the same rules that the Patent System is failing to do so.

The main point in question is sub-sections 3d, 3e, and 3i of Section 3 of the Indian Patents Act, which defines what are and are not innovations. Of the three, it is 3d that has enraged the pharmaceutical industry because it prohibits patent protection on: “the simple revelation of a unique conception of a particular compound that does not arise in the improvement of that drug’s messengers, or the trifling revelation of any rented building or new use in a specific substance, or the trifling use of factors have been found, computer or gear unless such defined process outcomes in a particular model or hires at least each new inducer.”

Out of a list of 2,293 patent applications between 2009 and 2016, it finds patent protections issued in potential violation of regulations against evergreening or increasing the life of a patent by tiny incremental improvements. The investigators, led by Feroz Ali, a Madras High Court advocate who also holds the Division of Industry Strategy and Promotion (DIPP) chair at the Indian Institute of Technology-Madras, looked into the prosecutorial history of specific grants and the claim dialect of all patents filed and came up with some startling results. Subsidiary patents for minor improvements on preexisting medications for which primary patents exist accounted for up to 72% of all issued patents.

This isn’t worse than what the investigators discovered, though. Only 15% of these additional patients were given due consideration and were supported by a comprehensive written instruction from the Director. Moreover, the applicable exception with the patentable subject matter was not spelt out or referenced in depth in the final specific request in most cases.

The Patent Office was indeed lacking inspectors until recently. But how does that justify such blatant indifference on its part, especially concerning patentability under Section 3d scrutiny? Again, the study is helpful because it relates the different types of inventions to the legislative patentability limitations they infringe.

It’s also accurate that IP researchers have discovered strange anomalies in how the IPO handles applications for different defence patents for much the same medicine, admitting some and denying others without explaining why. However, it affects access to essential medicines for various conditions.


Scholars, law experts, and global health advocates are fighting it. Then would it jeopardise countries’ national sovereignty to enact their patent system laws, but it would also jeopardise the World Trade Organization’s TRIPS (Trade-Related Facets of Intellectual Property) Treaty’s flexibility, which reactivities to adopt new patent law requirements. The primary worry is that the patent system procedure will be dictated by the rules, procedures, and requirements in the assigned nation or official office. This increases the possibility of progressively eroding this additional flexibility and enforcing what are known as TRIPS-plus restrictions, which are insisted upon by industrialised countries.


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