Constitutional considerations in patent litigation

The Treatment Action Campaign (TAC) intervened, unopposed, in the proceedings and argued that constitutional considerations, and mainly the public interest, should be applied when deciding whether Aventis should be granted the interdict it sought.

Aventis sought an interim interdict to prevent Cipla from infringing its patent, relating to an oncology product by the brand name of Taxotere (docetaxel), by its intended marketing of Cipla Docetaxel. Cipla in turn applied for the setting aside of an earlier amendment of the patent. Both applications failed at first instance before the Court of the Commissioner of Patents, and both parties appealed to the SCA. We shall not dwell on the first appeal, which did not succeed, relating to the application to set aside the earlier amendment of the patent.

Aventis’ appeal against the refusal of the commissioner to grant the interdict did, however, succeed. The unique aspect of the case was that the TAC, an activist group lobbying for cheaper medicines, was admitted as amicus curiae only at the SCA stage of the matter.

The TAC based its first argument against an interdict on Section 27(1) of the South African Constitution which provides that “Everyone has the right to have access to ... health care services, including reproductive health care”, which has been held by the Constitutional Court to include a right to have access to affordable medicines.

The TAC submitted that the Patents Act must be construed “through the prism of the Constitution” and in a way that appropriately balances the rights of a patentee against the constitutional rights of others.

The court was not impressed by this proposed approach. It remarked:

“What we are to make of viewing the legislation through the prism of the Constitution was not developed by the TAC. Section 39(2) indeed calls upon a court to ‘promote the spirit, purport and objects of the Bill of Rights’ when interpreting legislation, as pointed out by the TAC, but that does not open the door to changing the clear meaning of a statute. … On the assumption that the patent is not revocable for want of an inventive step I cannot see how Section 39(2) or the prism of the Constitution comes into play so as to deny Aventis its right to enforce its patent.”

So, nothing came of the strictly constitutional ground which TAC sought to advance in support of its argument against the granting of an interdict in favour of Aventis.

“NOTHING CAME OF THE STRICTLY CONSTITUTIONAL GROUND WHICH TAC SOUGHT TO ADVANCE IN SUPPORT OF ITS ARGUMENT AGAINST THE GRANTING OF AN INTERDICT IN FAVOUR OF AVENTIS.”

The SCA however indicated that TAC was on stronger ground with its further submission that the broader public interest, and not only the interests of the litigating parties, must be placed in the scales when weighing where the balance of convenience lies. The SCA dealt in some detail with a number of cases decided in the US where injunctions against patent infringement have been refused on the ground of public interest. However, the SCA found that the Aventis/Cipla matter was distinguishable on the facts.

The SCA accordingly decided in favour of Aventis due to the public interest not being materially affected. One of the reasons for this finding was that Aventis itself intended to launch a significantly cheaper generic version of Taxotere, namely Docetere, which was to be only marginally more expensive than Cipla Docetaxel.

The court held in its judgment that:

“Where the public is denied access to a generic during the lifetime of a patent that is the ordinary consequence of patent protection and it applies as much in all cases. To refuse an interdict only so as to frustrate the patentee’s lawful monopoly seems to me to be an abuse of the discretionary powers of a court. But in any event there will be no material prejudice of that kind on the facts of this case.”

Although public interest considerations were therefore not in this particular instance held to constitute a bar against an interim interdict, it is to be expected that future applications will feature substantial supporting evidence to show that an interdict will not detrimentally affect the public interest.