Case note: NOVARTIS AG V UNION OF INDIA AND OTHERS - An Illustration of TRIPS Flexibilities and Access to Medicine

The problem of how to balance patent holders rights for the pharmaceutical industries in accordance with the minimum standards of protection as required by the TRIPS Agreement on the one hand and how to ensure that access to essential medicine for the world’s poor is secured on the other hand is an ongoing challenge that has yet to achieve a proper equilibrium. Despite the flexibilities that are afforded within the text of the TRIPS Agreement, and notwithstanding the Doha Declaration on TRIPS Agreement and Public Health, most developing countries, for whatever reason, have so far failed to take advantage or make proper use of these flexibilities. The recent Indian Supreme Court judgment of Novartis AG v Union of India and Others in this regard provides a good example of how the minimum standards set down by the TRIPS Agreement can be interpreted in order to provide greater flexibilities to lawmakers and courts in developing countries to apply the standards of protection required under TRIPS Agreement and to adapt these in their domestic laws in order to ensure that they have the most appropriate intellectual property protection regime best suited to the local conditions and industries while complying with the international norms. This paper provides a review and analysis of the judgment by the Indian Supreme Court in the case of Novartis AG v Union of India and Others in order to examine how the relevant provisions of the TRIPS Agreement might be interpreted in order to facilitate access to essential medicine and at the same time comply with the requirements of providing adequate protection for intellectual property to encourage innovation and investment in new technologies.