Novartis Loses or did the court play monkey??

The High Court has passed an order dismissing the petition. A closer look at the order seems to suggest that the Court has said that the court cannot decide whether the Act is in accordance with TRIPs.

What has the court decided or has the court decided anything?? I cannot say by reading from the few articles that have been released as well as by NDTV article reproduced below, if the court decided upon the constitutionality or did it just pass the buck?

At the moment it appears to be just monkey business and I will keenly look forward to an update and possibly a copy of the order.


Press Trust of India

Monday, August 6, 2007 (Chennai):

The Madras High Court has dismissed a petition filed by Swiss pharmaceutical major Novartis AG relating to the patent right for one of its products.

The plea challenged the constitutional validity of Section 3 (d) of the Patents (amendment) Act 2005 for patenting the beta crystalline form of imatinib mesylate.

Quashing the petition, a division bench comprising Justice R Balasubramanian and Justice Prabha Sridevan held that the court cannot decide whether the Act was in accordance with trade related aspects of intellectual property rights (TRIPS) agreement or not.

The Intellectual Property Appellate Board (IPAB) on July 21 had rejected the plea by Noivartis to exclude a technical member from a bench constituted to hear its appeal against rejection of patent right to beta crystalline form of imatinib mesylate.

Counter affidavit

The firm objected the appointment of S Chandrasekaran on the IPAB bench on the ground that he had 'disabled himself' to hear its appeal against rejection of its patent right, as he had deposed in the counter affidavit filed in the Madras High Court.

Rejecting the objection, the IPAB bench comprising board Chairman M H S Ansari and S Chandrasekaran had noted: "The submissions made by Chandrasekaran have no relevance as they were based on his official capacity as a statutory authority before assuming the post of adjudicator and hence must be eschewed from consideration on the facts of the instant matter."

Originally, the company had filed an appeal and a petition in the Madras High Court.

The appeal challenged rejection of its patent application for beta crystalline form of imatinib mesylate, sold under the brandname Gleevee / Glivec.

Constitutional validity

The petition challenged the constitutional validity of the provisions of the Patents (Amendment) Act 2005, on the basis of which the firm's plea for patent was rejected.

Since there was no IPAB bench, which is the competent authority to hear the appeals against rejection of patent, the company moved to the high court.

During the course of hearing, the Centre notified the constitution of IPAB bench. Following this, a Division Bench of Justice R Balasubramanian and Justice Prabha Sridevan, which was hearing the matter, referred the appeal to the board.

However, the high court had reserved orders on the petition challenging the validity of the provisions of the Patents (Amendment) Act, 2005