There is now a row about Chadrasekharan being part of the IPAB, when it was he who has passed the order against Novartis in the opposition proceeding and is now listening to his own appeal. The IPAB has rejected the claims of Novartis and have allowed Chadrasekhran to be a part of the PAB for Novartis appeal. Novartis has filed a writ with IPAB challenging this situation. This how the situation stands today.
This post is more as a reply to Shamnads post on Spicy IP (NOVARTIS MOVES HIGH COURT TO REMOVE CHANDRASEKHARAN) and I have thought I should post it at IPUN as well.
The way I see things is that the purpose of the two forums, IPAB and High Court, are different. High Court is the correct forum at the moment to handle the question of constitutional validity of Section 3(d). IPAB’s job is to decide upon the technical grounds and nothing to do with constitutionality.
To the extent that Chandrasehekaran should not be a part of the IPAB bench deciding Novartis case is justified. But to say that the matter regarding technicality should be transferred to Madras High Court is not correct. The case may be very important and is required to deal with issues which are sensitive, but to say that High Court is more sensitised to the matter is again not entirely correct. If the case should run its course, then it should run its course in the respective forums i.e. one deciding constitutionality and the other deciding upon the appeals on technical grounds. Let this be trial by fire for the IPAB. If the matter is taken is away from IPAB, the whole purpose of constituting the IPAB is defeated. If High Court is to be end all of all litigation then IPAB should be scrapped. This case may be important in several aspects but I repeat that it should run its course in the respective race courses.
The point which seems to be missed here is that all IPAB (accepted sans Chandrasekharan!) has to do is not allow the appeal simply on technical grounds of Novartis missing the required deadline to file the application in India by claiming priority from a country which was not a convention country without even getting into Section 3(d), obviousness or any other debate. By simply doing this, the IPAB would have rendered the correct decision and the onus would be on High Court to decide upon the constitutionality. The way things are poised, it seems (I may be totally wrong) that Novvartis is less bothered about their application not being allowed and more bothered about Section 3(d) on which the fate of its several applications rests as well its future patent strategies in India.
I am reproducing a portion of the Controller’s order regarding priority and as a third person I see no flaw in it especially since everybody knows that patents are highly time sensitive and the applicants are required to be aware of the this.
“The Opponent said this application was filed in India on 17th July, 1998 as a convention application claiming Swiss priority date of 18th July, 1997 whereas Switzerland was not a convention country on that date. Further, Section 133 did not have and does not have any retrospective effect. The Opponent cited a decision of the High Court of Calcutta in the case of Danieli AC Officine Meccaniche SPA, Italy in support of his argument. In the present case also, Switzerland became convention country only in September, 1998. Hence no priority may be claimed from Swiss application.
The Applicant said that priority date is only a facility provided to the Applicant to avoid anticipation by publication of the invention between priority date and the filing date in India. It is the discretion of the Applicant to claim priority. I agree with the contention of the Opponent that this application wrongly claims priority.”
To sum it up, I believe that IPAB has been provided with an escape route and it should be allowed to use this and smartly pass the matter to High Court in correct fashion which would show that IPAB has done what is to be done without creating a fuss. This I believe also forms a part of running the course. Yes there may be writs and all, but no fingers would be pointed towards IPAB for passing a wrong judgment. I am not defending IPAB, but I am trying to see the logical and correct manner of approaching this unique situation.
