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Saturday, Nov 17, 2007
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Intellectual Property Board Bench to hear Novartis appeal

Special Correspondent

Matter relates to rejection of pharma major’s patent application

Board Chairman can discharge functions of judicial or technical member
Chandrasekaran excluded from Bench

CHENNAI: The Madras High Court has directed the Intellectual Property Appellate Board (IPAB) here to constitute a Bench comprising its Chairman and Vice-Chairman to hear the appeals filed by Novartis AG against the rejection of its patent application.

Passing orders on a petition filed by the pharmaceutical major, the First Bench comprising Chief Justice A. P. Shah and Justice V. Ramasubramanian said the board should dispose of the statutory appeal as early as possibly after affording opportunities to all parties.

Rejecting the objection raised by Natco Pharma Limited, the Bench said: “A plain reading of sub-section 3(a) of Section 84 of the Trade Marks Act clearly shows that the Chairman, who is deemed to be a judicial member, can discharge the functions of a judicial member or a technical member, as the case may be, either on the Bench to which he is appointed or to any other Bench.”

The Chairman and the Vice-Chairman of the board should always be regarded as judicial members irrespective of whether they were originally appointed technical members or judicial members.

Referring to Additional Solicitor-General V. T. Gopalan’s offer to constitute a Bench consisting of the Chairman and the Vice-Chairman of the IPAB, as provided for under Section 84(3) (a) of the Act, the Bench said it was “permissible.”

It also recorded that senior counsel for Novartis AG, Shanthi Bhushan, had agreed to the proposal to end the impasse.

P. S. Raman, senior counsel for Natco Pharma, had expressed doubt about the applicability of the provision and said it did not statutorily enable the Chairman, who was a judicial member, to discharge the functions of a technical member.

The matter relates to the rejection of Novartis’ application to patent its beta crystalline form of imatinib mesylate by patent authorities.

Though the statutory appeal against the rejection was originally filed before a Division Bench of the Madras High Court, it was later transferred to the board after an IPAB Bench competent to hear the appeals was constituted.

Novartis filed the present petition, taking exception to the presence of S. Chandrasekaran as the technical member of the Bench.

It said he had filed an affidavit in the High Court in support of the patent authorities and, hence, would be biased against the company.

As an alternative, the Centre came out with a proposal that the matter be heard by a Bench comprising the Chairman and the Vice-Chairman, and thereby excluding Mr. Chandrasekaran.

The proposal has now been accepted by the High Court.

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