In terms of market penetration and contribution to our country's gross
domestic product, the Indian pharmaceutical sector has seen phenomenal expansion
over the last several decades. India's domestic pharmaceutical industry is
projected to reach USD 65 billion by 2024 and USD 120-130 billion by 2030, up
from an anticipated USD 41 billion in 2021. Taking into account the bright
future of the pharmaceutical business, the Indian government is actively
supporting it by creating and implementing rules that are in line with global
Due to the development of the market and the investment by industry
participants, the protection of intellectual property rights becomes essential
for businesses. In this article, we examine the breadth and ambit of
pharmaceutical trademark and patent protection under Indian law.
Nature Of Pharmaceutical
An increase in scientific knowledge and the advent of new technologies have
resulted from the race to decipher the human genome, and these changes are
having a profound effect on the economics of medication development. Since
everyone will have their own genome mapped and saved on a chip,
biopharmaceuticals are likely to take center stage, and the end objective will
be to have tailored treatments. The chip(s) will be examined by doctors, who
will then make treatment decisions based on the data contained inside.
The security of such personal data stores is a critical intellectual property
concern. Medicines created using biotechnology are expected to enter the market
at a higher rate going forward. Such a medicine will need somewhat different
safeguards than non-biotechnologically advanced pharmaceuticals.
There should be no ambiguity about which bacterial strains were employed in
medication or vaccine development. It's a straightforward case if the strain is
already recognised and published in the literature experts typically consult.
However, numerous newly evolved strains are regularly found and lodged with
International depositary authority under the Budapest Treaty.
These archives' data stores should be searched for unique content. Most
businesses don't bother sharing their findings, but until a patent application
has been submitted, it's best practice to keep the idea under wraps.
Depositing the strain in one of the designated depositories who would provide
the strain a registration number which should be stated in the patent
specification is mandatory when dealing with microbiological innovations. This
eliminates the need to formally describe a living thing. There is a fee
associated with depositing a strain, although it is rather little if one is not
dealing with, say, cell lines.
In addition, the sequences must be disclosed in the patent specification for
innovations involving genes, gene expression, DNA, and RNA. Alliances might be
formed for a wide variety of reasons, including but not limited to the
following: sharing R&D resources; leveraging one another's respective marketing
networks; and pooling resources to streamline manufacturing. When forming an R&D
alliance, it's best practice to have a formal agreement in place that addresses
issues like who owns IP where, how much each party will pay for IP and how
they'll split the revenue, how trade secrets will be protected, how the IP
created during the project will be accounted for, and how any disagreements will
be resolved. It is important to keep in mind that a more robust intellectual
property portfolio is a prerequisite for a successful cooperation.
This contract may include a wide variety of extra provisions. Contract research
from universities, commercial R&D firms, and government-funded labs in India and
elsewhere will become more common in the pharmaceutical industry. Everything
that has been discussed thus far is important. The need to protect research
secrecy necessitates additional effort.
Similarity Of Trademark In Pharma Sector
In pharmaceutical trademarks, the brand name or drug name is frequently drawn
from the medicine's therapy, salt composition, or other medical phrase,
therefore it lacks originality, which is a trademark criterion. It confuses the
public. Section 11 of the Trade Marks Act, 1999 prohibits trademarks from being
confusingly similar to prior brands.
To decrease mistakes while buying pharmaceutical goods, customers should be able
to readily identify things by brand, medication, and trade dress. Thus,
safeguarding a brand name or pharmaceutical name requires proof of secondary
meaning or acquired uniqueness.
Section 13 of the Trade Marks Act, 1999 prohibits trademarks from being chemical
components, compounds, or International Nonproprietary Names (INNs) certified by
the World Health Organization and reported by the Registrar of Trademarks in
2012. The INNs mentioned are generic names for active medical substances, thus
anybody may use them.
Some misleading trademarks: "Trivedon" and "Flavedon" differed. This followed a
ruling that "Mexate" and "Zexate" were separate despite rhyming. The Delhi High
Court ruled in Astrazeneca UK Ltd. v. Orchid Chemicals & Pharmaceuticals
that the two marks derived the prefix "Mero" from the medicine "Meropenem"
and were not comparable.
Importance Of Patents In Pharmaceutical Industry
Soaring figure of R&d
When applied to the pharmaceutical sector, innovation is synonymous with the
discovery of new medicines and the subsequent approval by regulatory bodies.
Companies like Sun Pharma, Dr. Reddy's, Lupin, Novartis, Pfizer, Roche, etc. are
investing heavily in research and development (R&D) to assure profitability and
improve profit margins.
In spite of this, businesses are allocating a larger portion of their budgets to
advertising than to R&D as they seek fresh methods to profit on these
breakthroughs. To survive in today's cutthroat marketplace, businesses must
invest heavily in R&D and encourage creative thinking.
The average price tag for getting a new medicine to market is projected to be
about US $5 billion. Drug development and commercialization, including required
clinical studies, may take up to 15 years, or 7 years in the case of a long-term
illness. After receiving regulatory clearance, only a fraction of these
medications really reach the market.
Because of the enormous expense of research and development, pharmaceutical
firms are shifting their attention to the marketing of commercially viable
pharmaceuticals that may treat the symptoms of major illnesses and bring in
Repercussions of Patent Protection
Intellectual property rights, particularly patents, are the cornerstone of the
pharmaceutical sector, which depends primarily on future-monetizable innovation.
Patents are, in basic words, an exclusive right awarded for an invention that is
original and non-obvious to a person/entity knowledgeable in the relevant field.
According to industry estimates, patents provide between 70 and 80 percent of
pharmaceutical firms' total income.
Patents are one of the most successful means of securing innovation and
generating a return on investment in the pharmaceutical sector, where they are
often seen as comparable to the company's product portfolio. They serve a
crucial role in the pharmaceutical business in protecting the company's ideas,
therefore contributing to the production of pharmaceuticals that satisfy the
requirements of patients in developing and developed nations. Patents are also
essential to the pharmaceutical sector because they enable the recovery of
research and development and marketing expenses.
Strong patent protection may shield the innovation from prospective infringers,
preventing its use, production, or distribution without the patentee's
permission. They are the exclusive property rights that the patentee has gained
for twenty years against the innovation. Patents function differently across
businesses, but in the pharmaceutical industry, where medication production is
readily mimicked by rivals, they are crucial. To address the need for
pharmaceutical innovation, robust patent protection is necessary.
The absence of patent protection in developing nations stifles the growth of a
market for low-cost pharmaceuticals. In addition, flourishing,
research-intensive pharmaceutical enterprises may be built with the help of
robust patent protection. It also guarantees the creation of ground-breaking new
technologies and medicines that save lives.
When generic businesses join the market and cut into sales and earnings, pharma
corporations take preventative measures by securing patents for their products.
As pharmaceutical businesses struggle under the weight of rising R&D
expenditures, seeing product revenues decrease as their product nears the end of
its lifespan may be frustrating.
Threats to pharmaceutical innovation and rising uncertainty regarding market
exclusivity and legal costs for commercially successful treatments are the
results of patent issues faced by pharmaceutical corporations in recent months.
One of the highest-grossing medications, Gilenya, was the subject of a patent
dispute between Novartis AG and Torrent Pharmaceuticals in the United States.
Branded pharmaceutical firms may avoid these patent disputes by proactively
securing patents for their manufacturing processes and active components.
At the research and development (R&D) phase, a successful strategy should be
created to get patents with the widest possible reach, while filing patents for
methods of use and formulations may be done during the clinical trial phase,
which specifies the product's usage and attributes.
Due to the expensive expense of research and development, most pharmaceutical
firms seek patent protection as early as possible-even before clinical trials-in
the hopes of reducing the amount of time needed to bring a treatment to market
and maximizing their return on investment.
However, innovations in the pharmaceutical business must be revealed and
protected before entering the market, whereas those in many other
technology-based companies may remain secret until the time it enters the market
and use the patent term of 20 years. Clinical trials are costly, yet they are
necessary since the pharmaceutical sector is controlled by the government.
Furthermore, pharmaceutical firms are coming under intense stress as their
product pipelines dry up and patents expire.
Pharma Industry's Prospects
Instead of producing life-saving treatments, drug manufacturers are focused on
drugs that increase sales volume and market share, therefore increasing profits.
Unfortunately for the pharmaceutical industry, there is a limited window of
opportunity to commercialize new medications since the process of developing new
pharmaceuticals is becoming more time-consuming and costly. So, the patents on
the most successful commercial pharmaceuticals will soon be running out.
The corporation will not be able to afford to invest in R&D without the
assurance of longer-term patent protection. Moreover, a longer patent protection
period allows businesses to put more resources into R&D and the creation of
brand-new medicines. However, because of increased patent protection, these
medicines will be more costly for a longer time.
Generic companies don't put money into research and development, but they do
improve on existing medicines and file for patents so they can charge lower
prices and take a larger piece of the market. It is important to lengthen the
patent period for essential medications while shortening it for goods like these
in order to foster innovation.
The inability to get sufficient patent protection forces pharmaceutical firms to
reduce the breadth of their patent portfolio, which in turn reduces their
chances of retaining market dominance. Indian pharmaceutical firms, if they are
to remain competitive with their global counterparts, must prioritize research
and development of new treatments and the safeguarding of their intellectual
To ensure its economic success in the future, intellectual property must be
protected. Pharmaceutical firms should invest in the upkeep and growth of their
patent portfolios because of the importance of patents to their operations.
Lack of effectiveness and pre-grant resistance from third parties have been
major problems for the pharmaceutical industry over the last several decades.
Thus, patents aid in validity challenges. Generic pharmaceuticals and the
licensing of Western pharmaceutical patents both provide opportunities for
Indian pharmaceutical firms. Growth in the pharmaceutical business may be
stunted by factors such as the high price of R&D and the absence of a more
robust product patent system.
Drug makers should invest a larger share of their revenue in research and
development to foster innovation. With a more robust patent system, foreign
companies will enter the market, creating more rivalry for indigenous
pharmaceutical producers. In addition, Indian businesses are spending more on
research and development, expanding their worldwide marketing efforts, and
adapting their product lines to meet international requirements.
The research and development sector is bolstered and novel treatments for
addressing neglected illnesses are encouraged in industrialized countries thanks
to the robust product patent law in such nations. Also, with patents in place,
rivals can't make fake versions of the pharmaceuticals and sell them in the
In a nutshell, patents are critical to encouraging creative problem-solving and
monetary expansion. They improve one's position in the market, leading to more
profits and a larger slice of the pie. Pharmaceutical businesses may build a
foundation for future growth and the development of new treatments with strong
Pharmaceutical businesses can recoup their ever-increasing R&D expenses and get
the most out of their commercial products' lifespans provided they can secure
their innovative IP. For this reason, it is essential to develop a winning IP
strategy in order to optimize profits and bring IP's full potential to fruition.
Management of intellectual property and other forms of intellectual property
rights (IP/IPR) is obviously a complex endeavor that requires a wide range of
measures and approaches that must be harmonized with domestic legislation and
international treaties and practices. It's not being driven by exclusively
national concerns any more.
Market factors, such as demand, consumer reaction, the expense of adapting IP
for commercial use, and so on, have a significant impact on IP and the rights
that go along with it. In other words, commercial and trade interests should be
taken into account while managing intellectual property rights.
Depending on the kind of intellectual property at stake, experts in fields as
varied as science, technology, health, law, business, and economics will need to
be brought in to help. Industry-specific factors dictate that every sector
develop its own unique IP policies, management paradigms, strategic approaches,
etc. IP strategies in the pharmaceutical business are constantly developing.
Since it is more likely that certain IPR are invalid, antitrust law must
intervene to prevent the illegal assertion of such rights for the purpose of
establishing and maintaining illegitimate, if limited, monopolies in the
pharmaceutical business. There are still a lot of open questions here.