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The Spicy India IP blog is reporting that there has been a further twist in Novartis’s challenge to the Indian Patent Office’s decision not to grant protection to its anti-cancer drug Glivec. The drug company has formally objected to the presence of S Chandrasekharan on the panel of the Intellectual Property Appellate Board that will hear its appeal on the grounds that he was Controller of the Patent Office at the time the original refusal to grant a patent was made. The blog also points out that “Chandrasekharan filed an affidavit at the earlier stages of the Novartis litigation before the Madras High Court, supporting the rejection of Novartis’ patent application”.
On that basis, it seems pretty clear that natural justice demands Chandrasekharan does not play a role in the process now. Worryingly, the blog also states:
Chandrasekharan was hastily appointed in the wake of the Novartis litigation and the governments’ desire to have the matter shifted to the IPAB. One can only second-guess the reasons for the government wanting to do so--- perhaps from fears that one of the Madras High Court judges was pro Novartis---as the learned judge had, in an earlier matter involving the exclusive marketing right (EMR) of Novartis over Gleevec, upheld the validity of the EMR and injuncted several generics (in sharp contrast with a Mumbai High Court order that questioned the validity of the EMR in question).
I do not pretend to understand the law and science under-pinning this case, but I do know that with the eyes of the world upon them, it is incumbent on the Indian authorities to ensure that the whole process is as transparent as possible. Certainly, if Chandrasekharan is not removed or does not step down, Novartis will be in a strong position to take the matter further should the IPAB’s decision go against them. And it is nobody’s interests for this matter to drag on and on.
This latest development in the Novartis saga comes just a few months after the sudden withdrawal of the report of the Mashelkar committee on India's patent laws - which had concluded that certain parts of the legislation were not TRIPs-compliant - following allegations of plagiarism. Suspicions that the dicrediting of the report was more about its uncomfortable message than concerns over the way it was put together will be heightened should allegations of general bias in the way India deals with issues around pharmaceutical patents begin to stick. And that cannot be what the Indian authorities want at a time when the country has never looked more attractive to investors.
Meanwhile, some reports indicate that a decision in the other half of Novartis’s Indian litigation – that relating to the legality of the country’s patent law – may also be imminent.
IPAB is organized to solve hundred of other pending patent opposition cases in the courts around India . Though Gleevec case is one of the most famous and important cases in context to the subject of the case , loss of Chandrashekharan from the IPAB panel will result in a huge loss for the Patent Community . The best possibility in current scenario is to send this case back to Chennai High court and carry on with other cases .
Priyank , MumbaiPriyank Gupta, Panacea Biotec Ltd on 21 Jun 2007