Kerala High Court: India's Government-Use Power Can Cover Selling Patented Medicines to Patients

By Haedar

Photo: jarmoluk / Pixabay

An Indian court has given the government a wider reading of its power to use patented inventions, in a case about the price of a breast cancer drug. In a judgment dated 28 September 2026 and analysed in the legal press this week, Justice Harisankar V. Menon of the Kerala High Court held that Section 100 of the Patents Act, 1970 allows the Central Government to manufacture a patented medicine and sell it on a non-commercial basis to patients who need it. The court stopped short of ordering the government to do so.

How the case started

According to Asia IP and LiveLaw, the petition was filed in 2022 by a retired bank employee with metastatic breast cancer, who said she could not afford ribociclib, a patented CDK4/6 inhibitor. A 21-day course reportedly cost more than her monthly pension. She died while the case was pending, and the court continued the matter on its own motion, under the title In Re Exorbitant Pricing of Life Saving Patented Medicines (WP(C) No. 18999 of 2022).

The legal holding

Section 100 lets the Central Government use a patented invention "for the purposes of Government". The narrower view is that this only covers use by the state itself, for example in government hospitals. The court rejected that reading. As quoted by LiveLaw and Asia IP, it found that the section places no limit on who the purchaser can be, so it can extend to the government making the drug and selling it, without profit, to a needy patient. The court also said the power should be used where intervention is needed, such as when a patented medicine is sold at an exorbitant price.

Why the court did not order action

At the same time, the court treated the decision to use the power as a policy matter for the executive. According to the judgment text, the government must first collect data: how many people have the relevant cancer, how many take the medicine, how many go without it because of price, and how well existing subsidy and price-control schemes work. The court also acknowledged that patent protection matters, warning that without it inventors would not register their patents. The Indian Express notes that no timeline or responsible ministry was set, so in practice the next step depends entirely on the government.

The Indonesian angle

Indonesia has a comparable tool. Law No. 13 of 2016 on Patents (as amended) allows the government to exploit a patent itself (pelaksanaan paten oleh Pemerintah) in specific circumstances, including for pharmaceutical products needed to address serious diseases, and Indonesia has used this tool before: Presidential Regulation No. 76 of 2012 authorised government use of patents on antiviral and antiretroviral medicines for HIV/AIDS and hepatitis B, with a 0.5% royalty on net sales paid to the patent holders, replacing earlier government-use decrees for HIV drugs from 2004 and 2007. The Kerala ruling is not binding here, but it shows the line courts are drawing between the legal availability of the power and the political decision to use it. Pharmaceutical patent holders in Indonesia should expect pricing and access arguments to be raised alongside these provisions.

Sources

• High Court of Kerala, In Re Exorbitant Pricing of Life Saving Patented Medicines v. Union of India (judgment text, CourtKutchehry)
• Asia IP, "Kerala High Court tests limits of patent protection for cancer drugs" (15 October 2026)
• LiveLaw, "Centre Can Use Power Under Patents Act To Make Exorbitantly Priced Drugs Affordable: Kerala High Court" (28 September 2026)
• The Indian Express, "Breast Cancer Drugs at Rs 80,000 a Month: What Kerala HC Ruling Means" (2 October 2026)
• Ministry of Health of Indonesia (Ditjen Farmalkes), Peraturan Presiden No. 76 Tahun 2012 tentang Pelaksanaan Paten oleh Pemerintah terhadap Obat Antiviral dan Antiretroviral