Patent Appellate Board Goes Functional

On April 02, 2007 the Central Government issued a notification which triggered Section 117G of the Patents Act, 1970 providing that all pending appeals in high court shall be transferred to the Appellate Board set up under Section 116 of the Act, effective from the date of the issue of notification. Till this notification the Appellate Board existed in theory, and not operational with Technical Members to deal with patent matters. Section 117G read as follow – All cases of appeals against any order or decision of the Controller and all cases pertaining to revocation of patent other than on a counter-claim in a suit for infringement and rectification of register pending before any High Court shall be transferred to the Appellate Board from such date as may be notified by the Central Government in the Official Gazette and the Appellate Board may proceed with the matter either de novo or from the stage it was so transferred. Following the notification, Justice R. Balasubramanian and Justice Prabha Sridevan of the Madras High Court yesterday ordered to transfer the case to Appellate Board regarding rejection of Novartis’s patent application for beta-crystalline form of imatinib mesylate – a polymorphic form likely used is marketed formulation of Novartis’s blockbuster anticancer drug Gleevec. The Appellate Board will likely to decide the merit of the patentability of beta-crystalline form of imatinib mesylate under the Patents Act, 1970. But it is still need to be seen that whether Appellate Board will proceed with the matter either de novo or from the stage where the Madras High Court had left. However, the Madras High Court will continue to proceed and deal with the constitutional validity of Section 3 (d) of the Patents Act, 1970. Moreover, in yesterday hearing the Madras High Court did not fix a date when it would hand down its ruling on the Novartis challenge and reserved its order on the constitutional validity of Section 3(d).