The ET Reports:
“Hearings in Novartis’ appeal against the rejection of patent for its anti-cancer drug Glivec have been suspended yet again, after the Madras High Court restrained the Intellectual Property Appellate Board (IPAB) for four weeks from proceeding with the appeal.
Earlier this month, Swiss drug major Novartis had filed a petition with the High Court in Chennai contesting the IPAB’s decision to let former Patent Controller General S Chandrasekaran hear its appeal for Glivec, insisting that he was responsible in the first place for rejecting its patent application. Novartis had first filed a petition with the IPAB, which was dismissed last month.
According to an agency report from Chennai, a division bench of chief justice A P Shah and Justice P Jyothimani granted the interim stay on Thursday and ordered notice to the Centre and three others. It adjourned further hearing of the case to September 10.
“Novartis is petitioning the High Court for a new technical member, because we disagree with the appointment of the former Controller General of the Indian Patent Office to the IPAB,” said a company spokesperson.
Interestingly, there is a recent case that draws a parallel to Novartis’ petition. In May, the Delhi High Court held that Mr Chandrasekaran could not hear Belgium’s Magotteaux International’s appeal to the patent office decision, as it was under his tenure that the patent application had been rejected in the first place.
In case the ruling goes in favour of Novartis, the IPAB will need to appoint another person to hear the Swiss drug major’s appeal. Only a person with over five years’ experience working with the patent office, or a patent attorney with at least 10 years’ experience, may qualify.
However, with the Madras High Court holding valid section 3(d) earlier this week, chances that the IPAB will revert its decision seem slim, feel legal experts.
The Madras Patent Office rejected Novartis’ patent application for Glivec in January 2006, arguing that the Basel-based drug maker’s innovation did not meet the requirements of section 3(d) — a legal provision unique to India, which stipulates that modifications of known medicines cannot be patented unless they make the drug significantly more effective.
Glivec is patented worldwide. However, the invention of Glivec’s base compound, Imatinib mesylate, was patented in 1993, and is therefore not eligible for a patent in India, which joined WTO only in 1995. Novartis is seeking patent protection for a crystalline form of Imatinib mesylate, which was patented in 1997.
The Madras patent office said the creation of a new form of Imatinib mesylate was not a major innovation. To this Novartis replied that the base compound had no clinical value in the beginning as it could not be administered to patients.”