POSTSCRIPT / February 14, 2010 / Sunday


Philippine STAR Columnist

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Impunity and stupidity mark campaign spending

S.C. NOD NEEDED?: It says here that the Philippine Constitution Association has asked the Supreme Court to allow President Arroyo to appoint the replacement of Chief Justice Reynato Puno when he retires on May 17.

Finding the action unusual, I read again the Constitution. I did not find any provision saying that the President needs the permission of the Supreme Court to make such an appointment.

The process as I understand it is for the Judicial and Bar Council to submit a shortlist of nominees to the President and the latter appoints one of those listed within 90 days of the vacancy.

Nowhere does it say that the President has to secure first the Supreme Court’s permission, or for the tribunal to offer its permission, for her to perform her duty to appoint the Chief Justice.

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BLAME THE LAW: Sometimes the problem arises from the law itself. The Constitution, for instance, has sections that seem to contradict each other as to which president (outgoing or incoming?) has the power and duty to fill a vacancy in the Supreme Court.

The statutes, generally written by politicians out to protect their interests, are replete with loopholes clearly favoring those who had crafted the law.

For instance, under the law written by them, senators can run for president, solicit campaign contributions, pocket the bulk of the money, lose the election (naturally), then walk back to their Senate seat after making a fat deposit at the bank. 

Then there is the matter of campaign overspending. Under the law, presidential aspirants can spend billions to jumpstart their campaign provided they observe the limit during the official three-month campaign period.

A presidential candidate can spend billions beyond the legal limit provided such splurge is committed before the Feb. 9 start of the official campaign. It is a stupid law crafted by crooked politicians.

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TRUE ACCOUNTING: This legal farce was pointed out in the last “A Law Each Day” column of Star colleague Jose C. Sison:

“It is really quite unusual that aspirants are allowed to campaign even before the campaign period starts without being subjected to any rules. And this is because of the Automated Election Law (Section 15, RA 8436 as amended by RA 9369) which, according to the Supreme Court, has repealed Section 80 of the Omnibus Election Code prohibiting any person, whether a candidate or not, from campaigning before the start of the campaign period.”

Since there are around 50 million registered voters, the allowable campaign expense limit per presidential candidate is about P500 million (or P10 per voter) and another P250 million (P5 per voter) by his political party, or a total of about P750 million.

Adding impunity to stupidity, the Commission on Elections says that since the campaign period had not officially started before Feb. 9, expenses before that date do not count.

We submit that instead of counting campaign expenses from Feb. 9 to Election Day (May 10), the Comelec should start counting on the day an aspirant files his certificate of candidacy.

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UNILAB VS. PFIZER: Chalk up another blow against the overpricing of essential medicines and the practice of “evergreening” or the perpetuating of patents by the expedience of slightly modifying the original drug to get a new patent. 

Judge Joselito Villarosa of Makati Regional Trial Court denied last Feb. 8 a petition of American pharmaceutical giant Pfizer Inc. to stop local firm United Laboratories Inc. from selling its generic version of Atorvastatin Calcium, an anti-cholesterol medicine.

Pfizer and co-plaintiff Warner Lambert Co. LLC had asked the RTC to restrain Unilab and its sister company Therapharma Inc. from selling its version of Atorvastatin Calcium under the brand name Ava max.

Avamax has challenged the dominance of Pfizer’s Lipitor in the market. Lipitor sells for P34.45 (10 mg tablet), P39.13 (20 mg) and P50.50 (40 mg) versus Avamax’s prices of P25 (10 mg), P30 (20 mg) and P40 (40 mg) in leading drugstores.

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PATENT VALIDITY: Villarosa said Warner Lambert LLC and Pfizer failed to establish the grounds for the issuance of a preliminary injunction.

The court found that Pfizer merely derived its claimed patent right from Warner Lambert LLC, which appears to be different from the registered patentee, Warner Lambert Co. of New Jersey. Villarosa cited a Supreme Court ruling that before an injunction may be issued, the validity of the patent must be established.

He noted the admissions of Pfizer’s own witnesses negating the validity of Patent No. 29149. Witness Millette Asuncion, Pfizer legal director, admitted that Atorvastatin Calcium was already covered by Patent No. 26330 that had expired.

Dr. Nikko Quevada, a professor of general and physical chemistry of the De La Salle University, another Pfizer witness, also admitted that Atorvastatin Calcium was covered by US Patent No. 4861893.

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FRIVOLOUS INVENTION: Maureen Gallagher, senior scientist of Pfizer USA, admitted that the chemical structure of Atorvastatin Calcium disclosed in Claim 1 of Patent No. 29149 is the same as the structure disclosed under Patent No. 26330.

The ruling is a milestone in the year-old patent war between the multinational and the Filipino drug firm. In July last year, Unilab asked the Intellectual Property Office to invalidate Pfizer’s patent. Pfizer in turn filed suit in the Makati RTC.

Villarosa’s ruling strengthens Unilab’s patent invalidation case against Pfizer as it indicates that the patent held by Pfizer is for a frivolous invention.

The Cheaper Medicines Law prohibits the grant of patents on frivolous pharmaceutical inventions that prevent the entry of more affordable generic drugs.

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(First published in the Philippine STAR of February 14, 2010)

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