Roche vs Cipla at the Supreme Court: Technical Expertise?

expert-technicalWe’ve been given to believe that the Roche vs Cipla appeal came up at the Supreme Court today. Here is what a friend of SpicyIP just wrote in:

“The matter came up today before Justice Gogoi and Justice Pant. Cipla tried to argue that some aspects of the matter require expert assistance, and hence, requested the court appoint a technical expert as per Section 115.

Although the Bench seemed inclined to appoint one, it exercised restrain since at least 4 experts from both sides were examined during the trial. They suggested that parties open their arguments and if the necessity was felt later for expert advice, it could be considered.  Dr. Dhawan appearing for Cipla raised a preliminary objection. He read paragraphs from the judgment and stated that many paragraphs were later expunged due to plagiarism. Furthermore, he stated that even the revised judgment in December still carried several paras which were lifted from the article and single judge order. (ps: for more details on this plagiarism charge and the courts’ subsequent retraction, see our posts here and here). 

Basically, I think he was trying to argue that the Delhi high court hadn’t applied it’s mind when it wrote the judgment. Maybe he is suggesting that the matter be remanded back for fresh consideration by the High Court. The matter has been adjourned for April 14th for further arguments.

Roche was represented by Senior Counsels, P Chidambaram and Kapil Sibal (assisted by Pravin Anand of Anand and Anand).

Cipla was represented by senior counsels, Aryama Sundaram, Rajeev Dhawan and Pratibha Singh.”

Section 115 and Tainted Experts?

Unfortunately, despite the potential efficacy of section 115 (a provision that enables our courts to call for and appoint expert advisors), it has not been used as much as it should have. One hopes that the Supremes put it to good use in this case, should they find it necessary to clarify points of technology/science. As I note in my specialised IP courts piece (which will soon be published by the ICTSD):

Section 115 has been deployed in some of the leading patent cases. Illustratively in Bayer Corporation v. Cipla Ltd, after procuring the consent of all parties to the dispute, Justice Bhat of the Delhi High Court decided to move ahead with the trial directly (as opposed to deciding the interim injunction application). In order to obtain specialist technical advice and expedite the trial, he appointed scientific experts under Section 115.

However, in what may come as a surprise, Section 115 was never invoked in what many consider to be India’s biggest patent battle to date, namely the Glivec case, involving the patentability of Novartis’s revolutionary anti-cancer medication. Interestingly, this provision was brought to the notice of the court by me (in my capacity as intervenor-cum-amicus), as the court struggled with the underlying chemistry. While the court appreciated the potential value of such a provision and requested all those present in court to suggest the names of competent independent experts, one of the counsels objected, stating that most academic experts in India were biased and could not be relied upon.

Notwithstanding a lost opportunity in the Novartis case, the key advantage of such a provision for a developing country with limited resources is that it spares us the need to appoint full-time technical experts to courts. More importantly, while a full-time expert on the bench is likely to well versed in only a few areas of science/technology, an ad-hoc set of experts with a diverse range of technological expertise would ensure that courts are able to draw on the appropriate expert for a particular patent case involving a specific technological domain.”

Shamnad Basheer

Prof. (Dr.) Shamnad Basheer founded SpicyIP in 2005. He's 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 Prof. Basheer joined Anand 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. Later, he was the Honorary Research Chair of IP Law at Nirma University and also a visiting professor of law at the National Law School (NLS), Bangalore. Prof. Basheer has published widely and his articles have won awards, including those instituted by ATRIP, the Stanford Technology Law Review and CREATe. He was consulted widely by the government, industry, international organisations and civil society on a variety of IP issues. He also served on several government committees.

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