It turns out that aside from the myriad patent law issues involved in last week’s Roche v Cipla decision (see Rupali’s posts here: Part 1, Part 2), there may be some copyright considerations as well! It appears that paras 4 to 37 of the judgement are nearly identical to a 2013 note written in the Queen Mary Journal of Intellectual Property by Shwetasree Majumdar (co-founder of Fidus Law Chambers, also one of our former bloggers) and Eashan Ghosh (of S. Majumdar & Co). Almost the entire 9 pages of the note appear to be lifted and placed into the judgment with only minor edits. Unfortunately, for those who want to compare for themselves, the 2013 note, titled “Winds of change: F Hoffman-La Roche Ltd & Anr v Cipla Ltd (CS (OS) No. 89/2008, judgment dated 7.9.12)” is behind a paywall. For those who have access, here’s a link. The link to the judgment is here.
It’s true that paras 4 to 37 of the decision are a summary of the facts, so I don’t want to bring the house down over this. Quoting my colleague (since I haven’t had a chance to sit with the whole judgment yet myself): “On the bright side, the judgment does proceed with considerable clarity on both patent standards and where the single judge got them wrong”. That being said, there is indeed quite some irony that this type of an issue crops up in an IP judgment!
(H/T to Eashan’s facebook post where he brought this up)
(Author’s edit: An earlier version of this post mistakenly said that Eashan Ghosh is working at Fidus Law Chambers. This has now been corrected)
Update: In a very laudable move, the High Court has now admitted to these issues, apologised to the authors, and expunged these portions of the judgment! See here for more details.