On 26 July 2024, the government of Indonesia issued Government Regulation No. 28 of 2024 (“GR 28”), which is an implementing regulation of Law No. 17 of 2023 on Health (“Health Omnibus Law”). GR 28 came into effect on the same day it was issued.
Through GR 28, the government aims to impose control by setting up limits on the maximum content level of sugar, salt and fat (known as gula, garam dan lemak/”GGL”) in processed food products.
In brief
The regulations relating to patent linkage in the Health Products (Therapeutic Products) Regulations (“Regulations”) were recently amended through the Health Products (Therapeutic Products) (Amendment) Regulations 2024. The amendments came into force on 1 August 2024.
The changes aim to clarify for stakeholders which patents need to be considered when applying to register a therapeutic product and which patents fall under the patent declaration regulations. Additionally, they seek to reduce the potential for indiscriminate use of the patent declaration process.
Key takeaways
The amended patent declaration requirements aim to reduce potential patent disputes before the Health Sciences Authority (“HSA”) grants registration for therapeutic products. To achieve this, HSA will notify patent owners about the registration of products covered by a patent during its term without their consent or agreement. In particular, it is now clear that process patents do not fall within Regulation 23 of the Regulations.
Anyone who makes a false patent declaration when applying to register a therapeutic product, such as: (a) by making any statement or furnishing any document which the person knows or has reason to believe is false in a material particular; or (b) by intentionally suppressing any material fact, and furnishing information that is misleading, shall be guilty of an offense and liable on conviction to a fine of up to SGD 20,000 (approx. USD 15,500) and/or imprisonment for up to 12 months.
In more detail
Under Regulation 23 of the Regulations, the HSA is required to consider whether a patent is in force in respect of a therapeutic product that is sought to be registered. Therapeutic product applicants must, at the time of their application, furnish to HSA a patent declaration stating whether any patent is in force in respect of the relevant product and whether the applicant is the proprietor of the patent. Where the applicant is not the proprietor of the patent, the applicant must declare that:
the patentee has consented to or has acquiesced in the grant of the registration;
the patent is invalid; or
the patent will not be infringed by acts relating to the therapeutic product.
Following feedback received that the existing regulations lack clarity and create uncertainty as to the requirements for patent declarations, and following a public consultation held from 1 to 31 March 2024, HSA’s amendments to the Regulations specify that the following patent declarations must be furnished to HSA during registration of therapeutic products (see our previous client alert here):
A patent containing a claim for an active ingredient of that therapeutic product
A patent containing a claim for a formulation or composition of that therapeutic product
A patent containing a claim for the use of an active ingredient in the manufacture of that therapeutic product for a specific therapeutic, preventive, palliative or diagnostic use
The amendments also clarified that the patent declaration requirement does not apply to the following patents:
A process patent, other than a process patent that contains a claim for the use of an active ingredient in the manufacture of a therapeutic product for a specific therapeutic, preventive, palliative or diagnostic use
A patent that contains only claims relating to packaging
A patent that contains only claims relating to metabolites
A patent that contains only claims relating to intermediates
HSA further clarified that the types of patents that are subject to the requirements under Regulation 23 include the following:
A patent that contains a mixture of claims specified in Regulation 23(1)(a) and claims specified in Regulation 23(11), e.g., a patent containing claims for both an active ingredient of that therapeutic product and its metabolites
A patent containing a claim for the same polymorphic form of an active ingredient of that therapeutic product
Applicants must declare any subsisting restraining patent in relation to the therapeutic product for which registration is sought at the time of application and as required by HSA. HSA will then process registration applications based on the declared application category in the patent declaration form.
* * * * *
LOGO_Wong&Leow_Singapore
© 2024 Baker & McKenzie.Wong & Leow. All rights reserved. Baker & McKenzie.Wong & Leow is incorporated with limited liability and is a member firm of Baker & McKenzie International, a global law firm with member law firms around the world. In accordance with the common terminology used in professional service organizations, reference to a “principal” means a person who is a partner, or equivalent, in such a law firm. Similarly, reference to an “office” means an office of any such law firm. This may qualify as “Attorney Advertising” requiring notice in some jurisdictions. Prior results do not guarantee a similar outcome.
On 31 July 2024, the Health Sciences Authority released updates to the registration of therapeutic products as part of its continued efforts to improve regulatory efficiency and enhance clarity in the regulatory requirements and processes.
On 26 July 2024, the government of Indonesia issued Government Regulation No. 28 of 2024 (“GR 28”), which is an implementing regulation of Law No. 17 of 2023 on Health (“Health Omnibus Law”). GR 28 came into effect on the day it was issued. GR 28 regulates the same main principles as the Health Omnibus Law, but adds more depth and details
On 9 July 2024, Regulation (EU) 2024/1860 amending the Medical Devices Regulation (MDR) and the In-Vitro Diagnostic Medical Devices Regulation (IVDR) was published in the Official Journal of the European Union. In particular, the new Regulation amended the provisions regarding the mandatory use of the European Medical Device Database (EUDAMED) for devices compliant with the MDR and IVDR and for legacy devices, providing for a phased implementation of the modules as they are verified and declared functional.
In a statement published on 18 June 2024, the European Medicines Agency (EMA) called on marketing authorization holders (MAHs) to adopt a Medicines Shortage Prevention Plan to reduce and prevent possible shortages and critical issues. The purpose of such a Plan is to collect information on the product, European and international marketing, supply chain vulnerabilities, measures to prevent shortages and, where appropriate, to reduce their impact on public health, and must contain appropriate measures to address shortages and mitigate their impact on patients.
Following the public hearing held on 22 May 2024, on 22 July 2024, the Italian Constitutional Court issued two judgments (judgment No. 139/2024 and judgment No. 140/2024) to decide the various appeals concerning the legitimacy of medical device payback regulation, i.e., the system under which medical device companies are required to contribute to the coverage of the NHS deficit in the years 2015-2018.
On 10 June 2024, the Member State Coordination Group on Health Technology Assessment adopted new HTA guidance on outcomes of joint clinical assessments and reporting requirements. In particular, the guidance on outcomes for clinical assessments aims at supporting both Member States’ authorities in defining the scope of such assessments and those responsible for such assessments in reporting all the elements needed by Member States to properly conduct clinical value-added analysis of health technologies at the national level.
In June 2024, the Health Sciences Authority (HSA) participated in multi-agency enforcement operations with various statutory boards to clamp down on illegal cross-border activities, including the import of illegal health products. On 25 June 2024, in a joint news release with the Singapore Police Force, Immigration & Checkpoints Authority, Central Narcotics Bureau, Singapore Customs, and National Parks Board, the HSA announced that multi-agency enforcement operations were carried out at Singapore Changi Airport. These enforcement operations were part of the authorities’ efforts to clamp down on illegal cross-border activities.
In June 2024, the Health Sciences Authority (HSA) issued an alert to members of the public not to purchase or consume three products. The HSA’s analysis of these products revealed that they contained banned or potent ingredients.