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Philippines plans to follow India in limiting patentability

Peter Ollier, Hong Kong

Politicians in the Philippines Congress have passed a law that aims to lower the cost of medicines by allowing parallel imports, making it easier for the government to issue compulsory licences and setting tougher limits on patentability

A bicameral committee of Congress passed the Universally Accessible Cheaper and Quality Medicines Act on April 29. Philippines president Gloria Arroyo has said she will sign the bill into law.

The government has not yet released the exact text of the law that the committee passed, but sources have confirmed that it is substantially similar to the one that the Senate passed in October last year.

Pericles Casuela, a partner of Quisumbing Torres, the associated firm of Baker & McKenzie in Manila, confirmed to Managing IP that the law would allow parallel imports of drugs from countries where they are sold more cheaply.

‘The price of medicines in the Philippines is perceived to be much higher than in India or Pakistan,” Casuela said.

The law also contains a clause limiting the patentability of new forms of known substances that is similar to India’s controversial Section 3(d) of the Patents Act. Casuela said that the new legislation also states explicitly that a new use of a known substance will not be granted a patent. He believes this is not compatible with Article 27 of TRIPs, which states that patents should be available for “any inventions, whether products or processes, in all fields of technology, provided that they are new, involve an inventive step and are capable of industrial application”.

The Intellectual Property Code of the Philippines contains provisions for compulsory licensing, but the Cheaper Medicines Act would enable the government to bypass these if it is in the public interest to do so, and for public, non-commercial use.

The law contains an early working provision that allows generic drug companies to work a patent that is about to expire in order to gain regulatory approval and be ready to sell the drug the moment the patent expires. In addition, generic drugs companies will be allowed to submit test data produced by innovator companies in order to obtain regulatory approval.

The committee removed a clause that would have prevented doctors from writing the brand name of a drug in prescriptions after successful lobbying by the medical profession.

The news focus in the May edition of Managing IP contains an analysis of the key patent litigation cases in the courts in India and looks at their implications for the rest of the region. You can read it online later this week at www.managingip.com.