Pharma companies hit IPO’s ‘flip-flopping’

Small pharmaceutical firms have expressed concern over what they called “flip-flopping” by a quasi-judicial court which ordered them to desist from importing, distributing and selling a generic drug when it had earlier ruled in their favor.
“Flip-flopping practices of courts derail the rightful application of justice,” said Mack Macalanggan, spokesman for pharmaceutical firms Ferma Drug, Mark Ericson Enterprises, and Ellebasy Medicale.

The case stemmed from a complaint filed early this year before the Intellectual Property Office (IPO) of the Bureau of Legal Affairs by multinational drug company Merck Canada.

Merck accused Ferma, Mark Ericson and Ellebasy of infringement of patent law when they imported and distributed a generic anti- inflammatory tablet for heart ailment called etoricoxib (Xibra), which the latter claimed was copied from its drug.

In its first decision dated Aug. 22, 2014, the IPO denied a petition by Merck to issue a temporary restraining order/preliminary injunction embodied in its complaint.
In its order, penned by IPO hearing officer Adoracion Zare and noted by BLA director Nathaniel Arevalo, the court said, “the complainant failed to comply with Sec. 2 of Office Order 186, series of 201, requiring the submission of affidavits

and original or certified true copies of supporting documents.” “The (etoricoxib) patentability claim is also not clear, and neither the act of infringement which consists of selling and importing clearly established to warrant the issuance of injunctive writ. The complainant also failed to sufficiently establish that great and irreparable injury that would merit the issuance of the writ,” the court said. Macalanggan said “the reversal of the previous decision by the IPO without compelling or convincing reasons is not only flip-flopping but also a violation of the provision of Republic Act 9502 or the Universally Accessible Cheaper and Quality Medicines Act of 2008.” Under RA 9502 provisions, “the power and authority to issue a preliminary injunction or restraining order resides only in the Supreme Court,” in support of the people’s Constitutional right to avail themselves of cheaper and quality medicines. “In the RA 9592, Section 3 of Judicial Review, all cases arising from the implementation of the rule shall be cognizable by court with appropriate jurisdiction by law (74.3). No other courts, except the Supreme Court shall issue any TRO or preliminary injunction or other provisional remedies that will prevent immediate execution.”