Patent on Viagra faces challenge
By Liu Li (China Daily)
Updated: 2004-09-29 00:57

Goliath US pharmaceutical producer Pfizer filed an accusation Tuesday in Beijing against a July decision by the China State Intellectual Property Office (SIPO) to overturn the firm's patent for its erectile dysfunction drug Viagra.

Chinese men will have easier access to Viagra, a drup for erectile dysfunction made by Pfizer. [zaobao.com]

Sources with the Beijing No 1 Intermediate People's Court Tuesday confirmed they received the complaint from Pfizer.

But the court has not yet decided whether to place the case on file for trial.

According to Chinese law, the decision will be made by court within seven work days after receiving the plaintiff's accusation.

Sources with the intermediate court predicted the decision will be made after the National Day holidays, about a seven-day period.

"Pfizer has a strong legal basis for the appeal and is confident about the outcome," a statement issued by the US company Tuesday said.

Currently, Pfizer's patent on Viagra remains valid and enforceable, pending the final decision by the final appellate court. As such, Pfizer remains the only approved and legitimate manufacturer of Sildenafil (the active pharmaceutical ingredient of Viagra) in China, the statement said.

Pfizer acquired the patent rights on Sildenafil in 2001 from the SIPO. The drug can correct erectile dysfunction problems in many men, including those with prostate or cardiovascular disease.

Later in the year, a dozen domestic pharmaceutical companies requested the SIPO to cancel Pfizer's patent rights.

A billboard before a drugstore in Shanghai, China's financial hub, Tuesday. The Chinese characters on the billboard read: "Viagra, New Arrival!" Viagra, a drug for erectile dysfunction treatment, has become available in retail drugstores in China after authorities lifted restrictions on retail pharmacies and allowed a wider range of physicians to prescribe the drug. [newsphoto]

SIPO's Patent Re-examination Committee in July this year overturned the firm's 2001 patent because it does not conform with Article 26 of China's Patent Law.

Zhang Qingkui, an official with the Patent Re-examination Committee of the SIPO, said Tuesday that Pfizer's complaint was not unexpected.

"It is usual that a patent owner will sue our committee for being refused the patent right in re-examination," he said.

Zhang said that his committee has not received any information from the court.

He did not make any further comments.

Besides the complaint put forward Tuesday against the Patent Re-examination Committee, Pfizer also appealed to SIPO for reconsideration in September.

Pfizer has not yet received any result to the petition from SIPO, officials said

Apart from a use patent on Viagra, Pfizer also has the compound patent for Sildenafil valid in the United Kingdom and European Patent Office (EPO), and therefore still enjoys strong patent protection - even stronger than that of a use patent - for the product in those markets, the Pfizer statement said.

Also, since the claims under the use patent of Viagra granted in UK and EPO are quite different from those in China, the basis relied upon by the patent authorities in reviewing the patent also need to be different between these jurisdictions.

Further, the same patent opposed in the UK and EPO were recently upheld in Japan, which is the largest pharmaceutical market in Asia. It has a similar review system on patents to that of China, sources with Pfizer said.

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