Innovation Patent

Patent Purdah: Sovaldi (Sofosbuvir) Hearings Not Just “Secret”, But “Separate” Too!


private-vs-public-school1

Since my earlier post on the secret Sovaldi hearings, I’m given to understand that the patent office also insisted on  the “separateness” of these hearings. So much so that it did not even permit counsels appearing for one of the opponents to sit in on the other opposition hearings. A patent purdah of sorts (am using the term “purdah” to refer to the veil that segregates the “Zenana” house, and not the veil that masks the face!).

Let me explain: the various oppositions to the Sovaldi (Sofosbuvir) patent application were treated as separate proceedings/hearings by the IPO (Indian Patent Office) and separate time slots were allotted for each of these hearings. A counsel appearing for one of the many opponents was refused access to another opposition hearing, despite the fact that all of these oppositions related to the very same patent! As I’d mentioned in our earlier post, the Gilead Sovaldi (Sofosbuvir) patent was opposed by at least 9 different entities, including generic manufacturers and civil society groups.

This is bizarre to say the least: after all, these opposition proceedings relate to the same patent. As the Delhi High court suggested when it rapped the knuckles of the patent office for having inter-alia copied Natco’s opposition extracts verbatim, it makes more sense to treat the entire patent proceeding (hearing of the applicant in relation to the various FER (first examination report) objections under section 14 AND the opposition hearings under section 25) as one complete/composite  set of proceedings, rather than separating them out in this manner. As Justice Rajiv Shakder (one of the finest judges of the Delhi high court who has unfortunately been transferred out to Chennai now, raising questions again about the sanctity of transfers) rightly noted in his order:

“Such a procedure would have not only saved  [the patent office] time and effort, but would have also, kept at bay, the allegations of bias.”

Novartis (Glivec) Case Pleadings/Arguments Available in Open Access Mode

Imagine if all the parties in the Novartis patent case were segregated by the Supreme Court and forced into separate hearings, where one party could not sit in on the other party’s arguments! Here again, there were at least 7 parties that opposed the Novartis (Glivec) patent. For those interested, the key arguments raised by the various parties to the dispute (including my intervention) is now published by the Eastern Book Company (EBC) in one of the Supreme Court Cases (SCC) volumes. Thanks to Sumeet Malik and his fabulous team at EBC, we now have this SCC volume available open access style on our SpicyIP resources page. For those interested, you can access all of this by clicking here. 

Blast From the Past: A Potent “Policy Style” Patent Office?

Anyway, now that the bird has flown the cage (i.e. the hearings have concluded), this will have to wait judicial resolution in a future matter. Or better still, be resolved internally at the patent office which takes a more sensible view and lifts the purdah off these proceedings! After all, this is the very same patent office that at earlier points in time in history thought nothing of taking on courts (see the Thomas Brandt case that I highlight in this paper here, arguing that the patent office often deployed a policy-style reasoning of sorts, relying on the iconic Ayyangar Committee Report). A time when they were supremely confident and not intimidated by big lawyers and big names. I suppose the secrecy and separatism derive in some sense from the fear of an onslaught by natty counsels and their clients. The patent office must remember that it is a quasi judicial authority with most of the powers and trappings of a court when it decides oppositions. One hopes it will hark back to its glorious past without being cowed down or intimidated by counsels, clients or courts (playing ball of course within the bounds of the law).

Public vs Private: India’s Puzzling Paradox

And meanwhile, in a rare twist for our debates on access to knowledge (A2K), an Information Commissioner recently issued an order under the RTI (Right to Information) Act that the alleged promiscuity of two (law) professors is “information” that ought to be compulsorily disclosed to the public in order to set “rumour” mills to rest. Interestingly, this Commissioner also happens to be a law professor, and I find it rather odd that in a career otherwise marked by bold and beautiful decisions that pushed the bounds of RTI jurisprudence, he chose to strike a different chord here…. with what one can only describe as a profoundly puzzling decision–if the rumble of the “rumour” mill is the touchstone for mandating public disclosure, god help us!

A puzzling paradox to say the least….that even as we get more “private” with the “public” (i.e. patent proceedings), we get more “public” with the “private” (promiscuous partners and the like)!

ps: Image from here.

Shamnad Basheer

Shamnad Basheer

Prof (Dr) Shamnad Basheer founded SpicyIP in 2005. He is currently the Honorary Research Chair of IP Law at Nirma University and a visiting professor of law at the National Law School (NLS), Bangalore. He is also the Founder of IDIA, a project to train underprivileged students for admissions to the leading law schools. He served for two years as an expert on the IP global advisory council (GAC) of the World Economic Forum (WEF). In 2015, he received the Infosys Prize in Humanities in 2015 for his work on legal education and on democratising the discourse around intellectual property law and policy. The jury was headed by Nobel laureate, Prof Amartya Sen. Professional History: After graduating from the NLS, Bangalore Professor Basheer joinedAnand and Anand, one of India’s leading IP firms. He went on to head their telecommunication and technology practice and was rated by the IFLR as a leading technology lawyer. He left for the University of Oxford to pursue post-graduate studies, completing the BCL, MPhil and DPhil as a Wellcome Trust scholar. His first academic appointment was at the George Washington University Law School, where he served as the Frank H Marks Visiting Associate Professor of IP Law. He then relocated to India in 2008 to take up the MHRD Chaired Professorship in IP Law at WB NUJS, a leading Indian law school. Prof Basheer has published widely and his articles have won awards, including those instituted by ATRIP and the Stanford Technology Law Review. He is consulted widely by the government, industry, international organisations and civil society on a variety of IP issues. He also serves on several government committees.

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