SC dismisses Roche petition on Tarceva

The Supreme Court has dismissed a petition filed by Swiss drugmaker Roche concerning cancer drug Tarceva. This allows Cipla, India’s second-biggest drugmaker by market value, to sell a generic version of the drug.

The Roche petition had challenged the order passed by the division bench (higher bench) of the Delhi High Court dismissing the company’s appeal in a patent infringement case.
“It would not interfere in the decision of the high court as public interest is involved in it,” the bench headed by Judge Dalveer Bhandari said in the order.

According to a leading Kolkata-based legal and intellectual property (IP) expert, the Supreme Court has not looked into the matter, but has ordered that the ongoing trail at the Delhi HC be expedited.

So now the lower bench of the Delhi HC, where Roche had dragged generic drugmaker Cipla last year, would have to decide whether Roche’s patent is valid and whether Cipla’s drug infringes it.

The case goes back December 2007, when Cipla had launched its version of erlotinib, called Erlocip, despite Roche having a patent on it.

Cipla’s drug was priced at Rs 1,530 per tablet, while Tarceva’s cost was Rs 4,800 per tablet.

Roche dragged Cipla to the Delhi HC last year, but failed to get an injunction on the ground that Cipla was selling the drug at 1/3rd the price. An injunction would have prevented Cipla from continuing to sell its version of erlotinib.

The lower bench of the HC had ruled that right to life, public interest, access to drugs, and irreparable injury to patients are important considerations in determining whether to grant injunctions in patent infringement suits.

Roche had then appealed to the higher bench (division bench) of the HC, against the lower bench order.

In April this year, the division bench of the Delhi HC also dismissed Roche’s appeal and slapped a penalty of Rs 5 lakh on the Swiss firm for suppressing facts and not making full disclosures.

Neither the company secretary, nor the managing director of Roche Scientific Co (India), Girish Telang, was available for comment.