The Court stayed a decision of the Madras High Court, which had ruled in November last year that the Intellectual Property Apellate Board (IPAB) could hear Novartis’ appeal against the rejection of its Glivec patent without a technical member.
Novartis said in a statement: "The stay by the Supreme Court may delay the IPAB proceedings but we have confidence in the Indian legal system."
The Madras High Court’s decison left only the chairman, Justice MHS Ansari and vice-chairman, ZS Negi on the IPAB. The Court ruled that the chairman could also serve as a technical expert.
Generic company Natco Pharma was the only company to oppose the government’s proposal to hear the case with a two person panel. Natco Pharma is one of the companies challenging the Glivec patent along with Cipla and Ranbaxy Laboratories.
The Delhi Patent Office rejected the Swiss drug maker’s patent for Glivec in January 2006. Novartis then appealed against at the Chennai High Court and asked the Madras High Court to declare section 3(d) of India’s Patent Act unconstitutional and in breach of the TRIPs Agreement.
The Madras High Court dismissed Novartis’ challenge in August 2007 but referred the appeal over the Glivec patent to the newly constituted IPAB.
Novartis objected to the presence of technical expert S Chandrasekaran on the board on the grounds that he was Controller General of Patents at the time the original Glivec patent application was rejected.
The government then proposed that the appeal be heard without a technical member. Novartis claims it agreed to the proposal "in order to expedite the proceedings and avoid the delay inherent in appointing a new technical member".
It is not yet clear when the hearing will take place.
Section 84 (2) of the Trade Marks Act requires each IPAB bench to have one technical and one judicial member. Section 116 (2) of the Patents Act states that a technical member for patent cases must have acted as a Patent Controller for at least five years or functioned as a registered patent agent for at least 10, or have 10 years proven experience in registering patents and designs.
