Bolar Provision Remains Standing After Bayer Challenge

The Delhi High Court recently adjudicated on the issue of whether generic companies can export patented products for experimental purpose, in an expansive interpretation of Section 107A of the Indian Patents Act, 1970 (the 'Act'). Section 107A, which relates to what is referred to as 'the Bolar Provision', was introduced via the Patents Act (Second Amendment) Bill, 1999. The provision sought to ensure the prompt availability of patented products, particularly generic drugs, immediately after the expiry of the patent term. Unsurprisingly, the Bolar provision has always been a bone of contention between generic companies and innovator companies. A Division Bench of the Delhi High Court held that Section 107A permits export of the patented invention solely for uses that are reasonable and related to the development and submission of information required under law, either in India or abroad. The ruling came through a common order issued on 4 April 2019 in two appeals filed