Dr. Wobben appeals to Madras High Court against IPAB Orders


Aditya Reddy, an advocate at the Madras High Court informs us that Dr. Wobben, owner of Enercon GmBH, has filed writ appeals before the Madras High Court, on the 20th of April, 2011, against the Orders of the IPAB revoking several of his patents. The appeals were heard a Division Bench of the Madras High Court. Although the High Court refused to stay the orders of the IPAB, it did pass a status quo order, whatever that means!
Image from here.

Surprisingly, sources familiar with the litigation, confirmed that Dr. Wobben is objecting to the IPAB’s decisions on the grounds that Mr. S. Chandrashekharan, who was the technical member on the IPAB, delivering all 12 orders, was the Controller General of Patents and has signed all the patent certificates for the patents which he had revoked. There have been cases such as the Novartis Glivec case and the case of Magnotteaux International v. Asst. Controller of Patents & Designs, where Mr. S. Chandrashekharan has been restrained from hearing appeals in his capacity as a member of the IPAB. However both those cases were quite different from the present one because in those cases Chandrashekharan was the Controller who had also granted the patents, in the sense that he was the supervising Controller personally involved in the decision to grant the patent. The Wobben patents however are slightly different in the sense that Chandrashekharan was never the supervising Controller, his signature on the Patent Certificates was merely ministerial in his capactiy as the Controller General. This is therefore a very weak ground of appeal. Moreover in both the earlier cases this argument was taken at the stage of the IPAB itself unlike the present case where Wobben is raising this argument only at the appellate stage, something which is clearly not permitted by the law.

As reported earlier the IPAB had revoked 12 patents belonging to Dr. Wobben in response to revocation petitions filed by Enercon India Ltd. (EIL), a joint venture between the Mehra Group and Enercon GmBh, a company owned by Dr. Wobben. Earlier on the 16th of February, 2011 Dr. Wobben had surprisingly filed 3 writ appeals before the Delhi High Court, appealing against 3 of the revocation orders by the IPAB. Sources familiar with the litigation confirm that these 3 appeals pertain to the patents which are the subject of patent infringement suits already pending before the Delhi High Court. Predictably the writ appeals before the Delhi High Court got bogged down on the issue of jurisdiction and the Delhi High Court has reserved orders on whether it has the jurisdiction to entertain these appeals.

The remaining 9 revocation orders of the IPAB are the subject of the appeals recently filed before the IPAB. Apparently the first hearing before the Madras High Court was quite a high profile hearing with Dr. Wobben being represented by Senior Advocate P.S. Raman and Delhi based Senior Advocate Sudhir Chandra Agarwal. The appeals for Dr. Wobben are being handled by Anand and Anand which flew down a significant component of its litigation team which includes Partners Mr. Pravin Anand & Ms. Binny Kalra. EIL was represented by Senior Advocate Arvind Datar briefed by Mr. Parthasarathy, Senior Partner at Lakshmi Kumaran & Sridharan who had successfully argued all of the matters before the IPAB. Also present in the court-room was a team from AZB Partners which is in charge of EIL’s litigation. The next hearing in the matter is slated for June.
Prashant Reddy

Prashant Reddy

T. Prashant Reddy graduated from the National Law School of India University, Bangalore, with a B.A.LLB (Hons.) degree in 2008. He later graduated with a LLM degree (Law, Science & Technology) from the Stanford Law School in 2013. Prashant has worked with law firms in Delhi and in academia in India and Singapore. He is also co-author of the book Create, Copy, Disrupt: India's Intellectual Property Dilemmas (OUP).

4 comments.

  1. AvatarS.Chandrasekaran former Controller General of Patents

    Dear Mr.Prashant Reddy
    Please note very clearly that in both the cases of Novartis & Megatteaux International, I was not the supervising Controller to be personally involved in the decision to grant the patent as you have posted. Further you may please note that this point was wrongly projected before the Delhi HC in the second case. In both the cases I was acting only as the Controller General of Patents and not as supervising Controller as it was discussed or posted here.
    I was keeping quiet till this point only to wait for the decision of the Hon’ble IPAB which had recently given its judgment in the second case. There is lot of differences in the functioning of the post of Controller General of Patents and the supervising Controller.

    Reply
  2. AvatarPrashant Reddy

    Dear Mr. Chandrashekharan,

    I have a file noting from the Magotteaux International case, which can be accessed over here: https://docs.google.com/open?id=0Bxi2TzVXul5ZVEYwUkFjYTJLbFk

    As you can see, you have clearly passed an interim order in this case. Once you have already expressed your views on any aspects of the case you are automatically disqualified from hearing the matter at the appellate level.

    The Delhi HC was completely justified in barring you from hearing the case at the IPAB.

    I don’t have any documents from the Novartis case as yet but will share any documents that may come my way.

    Regards,
    Prashant

    Reply
  3. Avatarpresently patent examiner

    Mr.Prashant
    You do not seem to have understood the working of the Patent office. The file noting by S.Chandrasekaran is not an action of deciding the issue at any given time and he has only given the directions that the matter shall be handled as per the provisions of law. This fact has been wrongly projected before the Delhi High Court by Lawyers of Megattoues in their favour , Therefore one or even the Delhi Court cannot say that S.Chandrasekaran has decided the issue and in this issue the delhi high court has really erred in taking such decision and giving such judgment. Moreover chandrasekaran is also right that matter never came before him to have an issue of any recuse. But in all case You like the delhi High Court cannot escape to say that you are not wrong. Really the high court has erred in taking such a decision and you are wrong in projecting that way against chandrasekaran. I am not in any way connected with Chandrasekaran and I only see the correct interpretation of the office noting. I am examiner in the patent examiner who knows very clearly what amounts to deciding an issue in Patent office. I have seen all you people without knowing the correct facts you all comment like you have been commenting in Mr.Chaswal’s case. You only side Mr.Kurian even though he has only done all the wrong things and taken wrong decisions in any matter. Do you know what are all wrong things he has done in his tenure as CG. If you do not know those thing you should keep quiet and not comment about anybody’s working in the office. Now I find that everybody praises chandrasekaran’s way of working and his tenure as CG.

    Reply
  4. AvatarPrashant Reddy

    Dear ‘presently patent examiner’,

    I think it is quite obvious as to who you are and I can see that no amount of explanation is going to drive home the point. So, I leave you to your own theories.

    Warm Regards,
    Prashant

    Reply

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