Patent

Govt. of India follows up on SpicyIP reporting – revokes Avesthagen patent – first Indian victory for TKDL


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Six months after we had first reported on how Avesthagen was proceeding with its Indian patent application, despite abandoning the EPO equivalent of the same after objections raised by the EPO and the TKDL, the ToI has reported that the Government of India has now revoked the Indian patent in question. 
We had initially covered this Avesthagen patent application (1076/CHE/2007) for “synergistic ayurvedic/functional food bioactive composition” in context of the Traditional Knowledge Digital Library (TKDL). That post can be accessed over here. We had pointed out how the TKDL was opposing such patents in Europe and the U.S. on the grounds that they were seeking to patent traditional knowledge known in India but how the corresponding patent applications were proceeding towards grant before the Indian patent office. In fact until we pointed out this anomaly on the blog, the TKDL had never opposed a single TK related patent application in India. We had mentioned three patent applications in that post: one file by Avesthagen and two others filed by Laila Nutrachemicals. 
After we had published that post, the folks at TKDL had filed two pre-grant oppositions under Section 25(1) with the Patent Office against the two patent applications filed by Laila Nutrachemicals. The patent application filed by Avesthagen had however suspiciously been granted within 17 days of our story on this blog. Our initial story was published on April 10th, 2012 – Avesthagen’s patent was granted on the 27th of April, 2012. We covered these facts in an update over here. Technically, TKDL could have filed a post-grant opposition against the Avesthagen patent but for some reason it did not do so. 
On 11th August, 2012 the Financial Express had published a story by Soma Das & Timsy Jaipuria describing basically the same set of facts that we had published in April. The FE story however did have some interesting information which we did not have access to earlier. Apparently after we had published these stories on the TKDL’s functioning, somebody in CSIR wrote to the DIPP pointing out that the Indian Patent Office was granting patents without cross-checking with the TKDL first. Apparently the DIPP had hauled up the patent office and the patent office was reviewing several such TK related grants. 
Earlier this month when we were discussing another related story on how foreign patent office actions were being suppressed by Indian patent agents despite Section 8 requirements, we received an anonymous comment that the Government had initiated proceedings under Section 66 of the Patent Act, 1970 to revoke the patent. I had sent emails to the Department of Industrial Policy & Promotion (DIPP) asking for confirmation of the same since as per Section 66 it is the Central Government and not the Controller General who can revoke such patents. The DIPP never replied to my emails then. However going by the ToI report I think it is safe to confirm that the Government has indeed revoked the patent under Section 66 in ‘public interest’. There is no other section which gives the Govt. suo moto powers to revoke a patent. I reproduce Section 66 below: 
Revocation of patent in public interest: Where the Central Government is of opinion that a patent or the mode in which it is exercised is mischievous to the State or generally prejudicial to the public, it may, after giving the patentee an opportunity to be heard, make a declaration to that effect in the Official Gazette and thereupon the patent shall be deemed to be revoked. 
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I’m yet to access a copy of the final order since the entire Avesthagen file disappeared from the patent office website recently. However the DIPP will have to publish the same in the Official Gazette soon and hopefully we should be able to study the grounds of revocation in more detail at that point of time. 
For the TKDL, this case comes as a major success because it is the first Indian patent to be revoked on the basis of the TKDL since the TKDL was first created in the year 2005. The first Indian patent in seven years when several have already been revoked in Europe and the U.S.………it’s a sad commentary on the state of affairs in India but as they say – better late than never. 
I for one wish the TKDL all the best in its future endeavours to raise the quality of Indian patents. 
As for the DIPP, there is an entire list of dubious patents granted to govt. Unani and Ayurveda institutes – let’s start knocking them off the patent register. 
And of course, if Soma Das is right, in her story, there are also some Big Pharma patents which are looking to be struck down by TKDL. Let the games begin.
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).

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