Glivec patent dispute: the case so far Part III

Round Three: Appointment of IPAB Technical Member
After losing its first two rounds before the Madras Patent Office and the Madras High Court, Novartis third round came against appointment of technical member of newly-constituted IPAB. In April 2007, soon after the Central Government appointed former Controller General of Patents S. Chandrasekhar as a technical member on the Appellate Board, a three member quasi-judicial panel, the Madras High Court transferred Novartis’s appeal challenging the rejection order to the Appellate Board to adjudicate patentability of beta-crystalline variant of imatinib mesylate. But even before the Appellate could start hearing, Novartis debated the appointment of Chandrasekhar as technical member to hear the appeal.

Novartis protest was based on facts, that, firstly, Chandrasekhar was the Controller General at the time the application got rejected, and secondly he deposed an affidavit before the Madras High Court defending the rejection order. In short, Novartis doubted that Chandrasekhar cannot act as an impartial member of the Appellate Board and in July 2007 filed a petition before the IPAB praying for the appointment of another technical member in place of Chandrasekhar. The petition was penned around the fundamental principle of natural justice that no one can be a judge in his own cause but the appeal was dismissed by the Appellate Board relying on ‘doctrine of necessity.’ In August 2007, Novartis again approached to the Madras High Court filing a writ petition against the IPAB order allowing Chandrasekhar to hear the appeal.

In October 2007, the whole drama over the appointment of technical member saw an interesting twist when the Central Government stepped in with the proposal that the Appellate Board instead of three-member panel will now be two-member panel comprising a chairman and a vice-chairman excluding technical member. Wonder what made the Central Government to come with such a proposal. Smell like lobbying? Anyhow let’s stick to facts rather making wild guesses. 

In November 2007, the Madras High Court agreeing with the Central Government proposal allowed the Appellate Board to function without a technical member, removing Chandrasekhar from hearing the appeal. But even before the two-member Appellate Board could start hearing, Natco brought another twist by filing a special leave petition before the Supreme Court of India against the Madras High Court decision to allow the Appellate Board to hear Novartis appeal without a technical member. In January 2008, the Supreme Court agreeing with Natco issued a stay order halting the hearing before the IPAB.

While hearing the case, Justice SH Kapadia and Justice B Sundershan Reddy suggested the Central Government to consider appointing a new technical member to hear Novartis’s appeal and in October 2008, PC Chakraborty was opted and appointed as new technical member to hear the appeal and directed reconstituted IPAB to start hearing the matter on day-to-day. And finally hearing began in November 2008. 

So, precious one and a half years lost in mere constituting a three-member Appellate Board, showcasing the efficiency and sensitivity of Indian judiciary and patent system. As a patent practitioner, I always wonder.

• What made whole process dragged so long?
• Why the Appellate Board voluntarily never looked for new technical member?
• Why the Appellate Board strongly backed Chandrasekhar despite him being from non-chemistry and non-pharmaceutical background?
• Why neither High Court nor Supreme Court agreed with the IPAB’s “doctrine of necessity” argument?
• Is Indian patent system running in crisis to find a capable technical member and that also in a country with strong hold in global pharmaceutical industry?
• Whether the government need to re-look provisions and prerequisites for appointment of technical member?

These questions possibly will remain unanswered but a precious time got wasted for nothing.