The ET reported on the suspension of a patent official for alleged “irregularities”, in the context of a now famous B.Braun patent litigation case. I excerpt the critical portions below:The move follows an investigation by the country’s Controller General of Patents, PH Kurian, who found the ‘irregularity’ related to patent granted to B Braun for its popular intravenous device Safety Intravenous Cannula. In his report submitted to the commerce ministry, Mr Kurian held assistant controller CN Shashidhara and former deputy controller KM Vishwanathan responsible for the irregularities. “Government may take appropriate action against them,” he wrote.
Unfortunately, I was misquoted in the article as below.
“The development will strengthen the case of Indian drug-makers and health activists who allege that some patents are being given in the country under influence of innovator companies. “This highlights the case of many potential influences by companies across Indian patent offices,” Shamnad Basheer, a Kolkata-based patent expert said.
He said the particular case of B Braun is a procedural error and it cannot be completely established whether it was done under any influence. A report last year by Austria’s public sector entity to promote innovative firms and new technologies, Wirtschaftsservice (AWS) had alleged unhealthy nexus between Indian patent officials and legal representatives or patent agents of healthcare companies, Mr Basheer said.
Since the reporter engaged me in a brief telephonic conversation just before the story, he may have got my version wrong.
I was asked two pointed questions:
1. Question: Are there allegations of an unhealthy nexus between patent agents and the patent office?
Answer: Yes, and the AWS report is good testimony to this.
2. Question: Does this particular report by CG Kurian highlight such an instance of an unhealthy nexus?
Answer: No, this report only establishes irregularity by patent officials. It does not establish any wrong doing by the patentee or their patent agent.
Needless to state, the basic thrust of my message to the reporter, namely that Mr Kurian’s report does not establish any wrong doing on the part of the attorney, was not communicated through the article. In fact, I also clearly mentioned to the reporter that the Controller General, PH Kurian clearly found that the amendment was a permissible one, since it was within the scope of the earlier description filed.
It was only the procedure that was flawed. The CG found that since the amendments were effectuated after the date of grant of the patent, the amendments ought to have been advertised (since they were effectively “post grant” amendments). The irregularity lay in the fact that the amendments were treated as pre-grant amendments and not published. Consequently, the defendant in the B-Braun case (Polymed) instituted a complaint before the Ministry of Commerce forcing the CG to institute the enquiry.
All of this raises a very pertinent issue: what exactly is the date of grant of a patent? This was debated on this blog in the context of the Snehalata Case, where Justice Muralidhar appears to have settled the law on the point (to some extent) by holding that the date of grant is the date on which the Controller decides to grant the patent and not the date on which the granted patent is published. Given that this question of law was a tricky one and remained relatively unresolved until Snehalatha’s case, is it far to impute wrong doing on the part of any party who had been working in a climate of legal uncertainty?
It must also be noted that one of the patent controllers who was a member of the enquiry committee submitted a report to the CG Kurian stating that one particular claim amendment by B.Braun was beyond the scope of the description. Surprisingly however, the officer was quite vague in his findings. He began by stating that the amendment was not strictly part of the description as filed. And yet, later, in the very same breadth, he went on to state that this claim amendment was inherent in the filed description. Surely this official appears to have mastered the art of intentional ambiguity!
As we speak, B.Braun is engaged in a hotly contested litigation with Polymed. For those interested in the first instance order (by Justice Badar Durez Ahmed), see here. The matter was appealed and decided by a bench comprising of Justice Mukul Mudgal. Unfortunately, we do not have a copy of this order. We’d be grateful to any reader for sharing this order, if they have it.
Although I cant say anything about the background drama, if any, in this matter, I can vouch from my long experience with various patent offices that Mr. Sasidhara is one of the most upright officers in the Indian Patent office. It is a pity that a person like him got trapped in this. Mr. K. M. Viswanathan also was known as a clean official.
I know both these officers personally as my ex-colleagues. The least, i can say is that they were not corrupt.
CG should inquire into it more deeply to find out what exactly has gone wrong.
If there are procedural lapses, the responsibility is with the authorities. Proper guidelines and system transparency should be the solutions.
On the other hand, if it accounts to deliberate dereliction of duty, then the officers can be made responsible.
Individuals shall not be made scape goats for the gross errors committed by the system.
You gives me an idea with what i am working on right now. Thanks for this informative article.
Dear Mr Shamnad
I know Mr Shashidhara since he joined the Patent office. I also know Shri K.MVishwanathan for very long time. It is needless to doubt their undoubted integrity and honesty.However they been victims of circumstances.Ithink their suspension will bring down the out put as every one would become conscious and alert to see the things in minute details
I fully agree that Shri K.M. Vishwanathan and Mr Shashidhara are honest officers.
Once again CG could not make corrupt official exposed. These two have been victims of circumstances.
Page 3 of CG report is missing. Can anyone provide the same to understand the issues.
With due respect to all readers,
Only proper investigation will proof whether there was any corruption or not. But sad part is that why corruption in IPO is not investigated in all spheres. In 2009 only 12 seniors examiners of patent in IPO were suppossed to be promoted after relevant procedure as per government norms and regulations. But all of a sudden 46 people were promoted thereby causing huge backlog of applications and making us-the public the ultimate sufferer. Later we came to know from unconfirmed sources that some people has made huge bribes to some seniors clerks in the department to get the promotion done in one night. Without requirement 36 people were unncessarily promoted.
Why the government is not carrying out any investigation in this matter ?
So many years have passed we have not seen the searchable Design Indian database, though in last 5-10 years we have seen outside people working in Patent offices to scan all design files. Later again we came to know even payments were made to vendors ,and whole process was complete- but the CDs were vanished by some corrupt patent officials. See how public tax payers moneys are wasted.Moreover this works has been carried out so many times. Why no investigation is done by government for such wastage of public money?
There are so many issues for which space will not be available here.In Trade Mark to get your work done you need to pay speed money which is not possible for poor individuals like us.
Patent offices now sip pure mineral water in royal modern offices-who cares about investigation where big fishes may be caught?
surely CG erred in suspending a sincere Officer. “legal uncertainty” is the main reason for procedural irregularity. CG and Ministry should take the blame instead and rectify the legal uncertainity.
at IPO Ministry and CG only wants numbers (output) not bothered about quality. when a problem arises sincere officer will be made scapegoat.
Just to improve CG’s CR, imposing impossible mindless targets on officers. very unfair situation.
In the hurry Mistakes will be obvious and sincere officiers will be victims.
Dear Anonymous @ 12:22 PM,
Yes we cannot deny your allegations. However let me correct the figure. Actually 7 posts were vacant as permanent AC post when the whole lot was promoted in the year 2009. The rest of the people were promoted as Assistant Controller under plan. In government plan means any new project to be executed. Though the remaining examiners were promoted as AC under plan they have not done anything as such under a project or administrative matter.They are carrying out statutory duties only. Then the question arises what was the actual motive.The whole lot was promoted to just put the Assistant Controllers who are favoured by agents and some powerful officers of IPO in different works other than examination and grant in Groups. Those AC s are in no way interested to do examination. So the AC s who were promoted in plan ( not all )they are holding the power in terms of disposing various issues in different sections and policy matters.So the basic thrust was they have to be first become Assistant Controllers otherwise they will not be given the posts-thats why the bulk promotion.
Rumour is that -you will see very soon some other AC’s who is far in seniority list and got promoted under plan will be functioning as Design ACs.Because agents and lot of people are not satisfied with strict transparency / and rule following of the present one.
Real Honest and fighting for transparency is a very small group in IPO who wants transparency in all sectors.But then they are very small , so it is high time people like you should start protesting. Because insiders cannot do that lot of things due to regulations.As you people can name yourself but the other side has to be anonymous.
Now see why a certain section of the IPO was suddenly against Shamnaad Baseer. Because all use to have immense respect about him for his impartial and brainstorming legal analysis.But Shamnaad did a wrong by saying in one of his article– Referring to new controllers to do examination only.Actually even though we were not asked to carry out examination we cannot deny the truth that initial notification which was made by the Government appointed Assistant Controller s to discharge the function of examiners i.e. it clearly mentioned assistant controllers. Hence it includes all assistant controllers not only the new one. At present the Chennai High Court has set aside that notification.
It is true a powerful coterie group controls the present CG . But please have faith -all IPO officials are not rotten.Only a few are doing wrong sort of things whimsically to satisfy their personal vendetta.
To stop such activity a constructive and fair criticism should be initiated by public so that the honest people does not get demoralized and culprits gets quarantined and punished.