The Hindu : Tamil Nadu News : Novartis’ objection rejected

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Sunday, Jul 22, 2007
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Tamil Nadu

Novartis’ objection rejected

Special Correspondent

“It should not be telescoped to attribute bias as the present function is totally different from that of his earlier capacity”

CHENNAI: An objection of bias raised by the Swiss pharmaceutical company, Novartis AG, against a Technical Member of the Intellectual Property Appellate Board (IPAB), was rejected by the Board on Friday.

Novartis contended that the Technical Member, S. Chandrasekaran, had “disabled himself” to hear its statutory appeal against the rejection of its patent application for beta crystalline form of imatinib mesylate, as he had deposed in the counter-affidavit filed by the Centre in the Madras High Court. “He has disabled himself from hearing the appeals in the capacity of a Technical Member of the IPAB bench in the light of the deposition made by him in the present appeals, thereby taking a stand in the matter and as such he would not be free from bias,” senior counsel for Novartis submitted.V.T. Gopalan, Additional Solicitor-General of India, however, argued that such an objection was not raised by Novartis before the High Court, and that the Technical Member was not the author of the impugned order. He made certain statements before the court in his official capacity and “compulsion of office.” It should not be telescoped to attribute bias as the present function is totally different from that of his earlier capacity, he said.

The present matter relates to a petition questioning the pre-grant proceedings of the patent authorities in January 2006. Novartis challenged the rejection as well as the constitutionality of the provisions of the Patents Act invoked to pass the impugned order.

However, during the pendency of the matter before a Division Bench of the High Court, the Centre notified the constitution of the IPAB Bench here, by appointing Mr. Chandrasekaran as Technical Member.

Consequently, the High Court transferred all statutory appeals challenging the rejection of patent application to the Board, which became the competent authority to hear the issue.

Novartis wanted Mr. Chandrasekaran to be directed to “cease acting as a Technical Member to hear the present appeal.” Rejecting the plea, the Bench comprising M.H.S. Ansari and Mr. Chandrasekaran said: “The submissions based on the official capacity, compulsion of office or telescoping of the functions earlier performed as statutory authority before assuming the post of adjudicator have no relevance and must, therefore, be eschewed from consideration on the facts of the instant matter.”

Invoking the doctrine of necessity, the Bench said if a “stalemate situation” was likely to develop law permitted them to do certain things. Elaborating, it said, “The course of justice should not be allowed to be stifled, instead, decision-making should be promoted. More so, when the Tribunal is not the final arbiter of the matter…This Appellate Board would be in no position to constitute a Bench or to hear the present batch of appeals (if he were to be excluded).” It then ruled out the question of excluding the Technical Member from constituting the bench for hearing the present appeals.

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