UIC Review of Intellectual Property Law


Saby Ghoshray


Not many constitutional decisions from developing countries find themselves at the center of global debate like the Indian Supreme Court’s Novartis decision invalidating the Gleevec patent. The patent was invalidated under amended Section 3(d) of the Indian Patents Act, which was amended to address some of the concerns of imbalance between the maximalist and minimalist cultures in the pharmaceutical context. Section 3(d) of the Indian Patent Act introduced a new threshold of patent eligibility for pharmaceutical innovation that requires applicants to demonstrate enhanced efficacy of their products. The objective of this Article is to get beyond the reactionary reviews of the Indian patent regime and seek a nuanced view of its doctrinal trajectory. The Article achieves this by deconstructing Section 3(d) by focusing on its legislative intent, extracting its human rights dimension, and tracing its harmonizing elements. In the end, the Article serves to dispel the myth of Section 3(d)’s TRIPS incompatibility, unearths Section 3(d)’s human rights dimension, and rehabilitates India’s intellectual property regime amidst a global condemnation of its minimalist viewpoint.