By most accounts, India’s specialised IP tribunal, the IPAB (Intellectual Property Appellate Body) has undergone a significant face lift. From being seen as a lethargic and all too incompetent body, subject to flights of legal fancy and with a penchant for meticulously reproducing counsel submissions, sans any legal analysis of their own, many practitioners and IP stakeholders now swear by the proficiency of the IPAB.The crucial hearing on the case was held by the IPAB on two days on July 30 and 31. Though the argument in the case was not complete, the hearing was adjourned by the Board without fixing any new date for the next hearing of the case which is crucial for the civil society as the treatment for hepatitis-C is currently very expensive and out of reach of people due to the patent on this drug.”
A real pity that Wockhardt, one of the post grant challengers (along with Sankalp) backed out of this dispute (not surprising, given Wockdhardt’s severe financial woes). Wockhardts’ absence puts enormous pressure on Sankalp to defend their right to standing in this dispute: one of the cardinal issues in this dispute before the IPAB is whether or not Sankalp is a “person interested” under the Patents Act and therefore eligible to file a post grant opposition.
As I’d noted in a previous post reviewing a patent office decision, where the term “person interested” was liberally interpreted:
“What I liked most about the decision is the fact that the IPO has finally opened up the meaning of “person interested” in section 25 (2). It placed emphasis on the term “includes” in the definition of “person interested” and held that a person interested could include a patient group that was interested in opposing bad patents that resulted in increased drug prices. This will certainly engender more oppositions from civil society and patient groups and is a welcome development.”
Pegasus is an important case in many ways, not least of which is the fact that it scores two firsts in the annals of Indian patent history. It is India’s first granted pharmaceutical product patent. It is also India’s first post grant opposition case, with the Controller (Madhusudhanan) upholding the validity of the patent after reviewing more than 50 pieces of prior art! While one may disagree with his analysis and conclusions, his decision cannot be faulted for being a non speaking one.
One wonders why pharmaceutical patentees refuse to drop prices, despite being at the receiving end of high court orders (Roche vs Cipla, where Justice Bhat refused to grant an injunction on the grounds of the excessive price differential between the patented drug and the allegedly infringing generic) and compulsory licensing decisions. However, this issue should not concern the IPAB which is limited to examining the technological proficiency of the invention: whether or not it is patentable.
Pegasus offers considerable scope for the IPAB to place our patent jurisprudence on firmer legal moorings and resuscitate it from a more fanciful past.
ps: while Roche committed to dropping prices for two of its drugs (Herceptin and Mabthera) in the aftermath of the Natco vs Bayer compulsory licensing decision, it is yet to announce any price cuts for Pegasus.
Dr . Basheer,
Nice that the jurisprudence through IPAB is up. But reading your article it was ironically noticed that you need to have a ‘person interested’ in ameliorating the system to interpret ‘person interested ‘ term u/ s 25(2) of the ACT. Presently Justice Sridevan fits the ‘person interested’
But how will the interpretation of ‘person interested ‘ u/s 25(2) be if a not so interested person comes to adjudicate in the system. Then there may be no person who would be found having a interest in the opposition.
R.K.jain
Patent agent
Thanks Mr Jain.
Unfortunately I could not understand your comment. Could you please clarify? Thanks.