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Patents: Appellate Board Becomes Functional

After getting caught on the wrong foot in the Novartis case, the government of India is moving fast to plug all loopholes in patent law// implementation.

It has now been notified that all patent litigations filed in various courts in the country after notification of the amended Patent Act have been transferred to the Intellectual Property Appellate Board, set up at Chennai.

Several pharmaceutical companies have filed cases in High Courts and lower courts in different states challenging the decisions of the Patent Controller in granting or denying patents since 2005. According to an estimate, there are about 20 patent related cases to be decided in various courts.

Only on April 2 the government issued the notification on declaring that the provision in the Patents (Amendment) Act (Section 117G), which provides that all pending appeals in the High Courts shall be transferred to the Appellate Board set up under the Act.

The Board has a three-member team headed by S. Chandrasekaran who has been the Controller General of Patents, Design and Trademarks.

He assumed the charge of the post of Technical Member (Patents), IPAB, Chennai on April 2 itself. With the appointment of Technical Member (Patents), the Board now stands operationalised.

The IPAB is now fully functional for hearing the appeals against the orders of the Registrar of Trade Marks, Geographical Indications as well as the Controller of Patents.

It may be recalled that the pharmaceutical giant Novartis AG went before the High Court seeking reversal of the Chennai-based Controller’s rejection of its patent application for its anti-cancer drug Glivec in January 2006.

As per the Indian patent laws, appeals against rejection of a patent application should first go before the Appellate Board set up for the purpose.

But as the case was being heard out in the Madras High Court, it was revealed for nearly two years the Board remained had remained non-functional because the technical member had not been appointed.

Hence the Novartis appeal in the court. Towards the fag end of the hearings in the case, the government announced that the Board had become functional.

(The court has reserved orders on the Novartis petition challenging the validity of the an amendment to the patent laws. Citing that amendment only the Controller had rejected the drug firm’s patent application.)

Apart from the Novartis case, another prominent appeal to come up before the Appellate Board will be Wockhardt’s. It is challenging the denial of patent for a new version of nadifloxacin. a topical antibiotic sold under the brand name Nadoxin.

Another drug firm Cipla had filed a pre-grant opposition to Wockhardt's patent application, claiming that similar drugs already existed in the market. Subsequently, the Indian patent office denied Wockhardt a patent for its antibiotic on the grounds of 'prior art' -- Wockhardt's so-called innovation was information already in the public domain.

Significantly the patent office's refusal to grant a patent to nadifloxacin came a few months after it rejected Novartis' patent application for Glivec. Wockhardt had filed its appeal in the Bombay High Court.
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