Economic Times lately reported that a group of patent lawyers under the aegis of a newly formed public interest group, Promoting Public Interest Lawyering (P-PIL) have filed a writ petition challenging the legality of the Intellectual Property Appellate Broad (IPAB) saying the members are incompetent to hear IP cases. The patent lawyers have requested the Madras High Court to prevent IPAB from adjudicating any cases pending the disposal of the petition. Shamnad Basheer prompted P-PIL for the purpose of using the law and legal instruments for public interest causes. It is indeed a welcome move and must congratulate Shamnad for making such much-needed initiative.
In fact, it is not only IPAB whose competence is questionable but also many patent examiners (mostly promoted to Assistant Controller level) lack technical expertise and common sense to examine the applications. Particularly examiners handling pharma applications not only lacking technical nuances of pharmaceutical science but at the same time applying inventive-step in such a manner that they themselves worked in R&D for at least 20-30 years. In the patent law, non-obviousness is judged by considering working knowledge of a person ordinarily skilled in the art. Such ordinary skilled person is usually considered to have average technical level in the field of the invention but in India, the level of a person ordinarily skilled in the art has exceed average and is not less than a scientific genius/veteran with considerably strong experience in drug discovery and pharmaceutical development. In most of the orders (u/s 15) and opposition decisions related to pharmaceutical, new drug compounds and formulations are made look so easy and obvious that it seems to be that drug discovery is nothing complex and obvious to even first year pharmacy student or day-to-day practiced by scientists/pharmacists working in India. But in reality the situation is so miserable that it is impossible for our so-called person ordinary skilled in the art to develop anything until and unless the source of copying is not provided. Corruption and incompetence has become pretty common in the government agencies.