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Indian Case Summary

Indian Network For People Living … vs Union Of India on 2 December, 2008 – Case Summary

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In the case of Indian Network for People Living with HIV/AIDS vs Union of India on 2 December 2008, the Madras High Court was presented with a significant legal dispute concerning patent law and the rights of individuals living with HIV/AIDS. The case was presided over by Chief Justice A.K. Ganguly and Justice F.M. Ibrahim Kalifulla.

Facts of the Case

The petitioners in this case were two registered societies, the Indian Network for People Living with HIV/AIDS and Tamil Nadu Networking People with HIV/AIDS. They were represented by their respective presidents. The respondents included the Union of India, represented by the Secretary, Department of Industrial Policy and Promotion, Ministry of Industry and Commerce, the Controller General of Patents & Designs, the Assistant Controller of Patents & Designs, and the pharmaceutical company F.Hoffmann-La Roche AG.

The petitioners filed a writ petition under Article 226 of the Constitution of India, seeking to quash patent No.207232 granted by the office of Respondent Nos. 2 & 3 in Patent Application No.959/MAS/1995 filed by Respondent No.4. They also sought a direction for the Respondent Nos. 2 and 3 to reconsider Patent Application No.959/MAS/1995 after hearing the Petitioners as per Section 25 of the Patents Act, 1970 read with Rule 55 of the Patent Rules.

Issues Raised

The central issue in the case was the patent for Valganciclovir, a drug used to treat CMC retinitis, held by F.Hoffmann-La Roche AG. The petitioners had filed a pre-grant opposition to the patent application, arguing that the product was in the public domain prior to 1995 and therefore lacked novelty. They also contended that the Indian Patents (Amendment) Act, 2005 only granted patents for processes but not for products.

The petitioners’ opposition was not considered, and the patent was granted to the 4th respondent. The petitioners argued that their statutory right to a hearing under Section 25(1)(k) of the Patents Act, read with Rule 55(6) of the Patent Rules, was denied.

Court’s Observations

The court observed that the Controller, before whom the proceedings take place, is endowed with some of the powers of a Civil Court, and whose order or costs are executable as a decree of a Civil Court, is thus having the trappings of a Civil Court. Proceeding before such an authority are obviously a quasi-judicial proceedings.

The court also noted that the pre-grant opposition proceedings come within the sweep of any proceedings under Section 77 of the said Act. The Controller, in a pre-grant stage, is also deciding a controversy, which is raised by the objector opposing the grant of patent and the applicant who applies for the grant.

The court held that the third respondent functions as a quasi-judicial tribunal and has to decide the lis namely, the right of the objector raised on a wider perspective as against the claim of patent by the fourth respondent.

Conclusion

The court concluded that the petitioners’ statutory right of making submission during hearing was denied. But the patent was granted to the 4th respondent by denying the petitioner any chance to make submission on his representation. The petitioner was not informed of the grant of patent to the 4th respondent till the petitioner came to see the publication of the patent in the Patent Journal. The court held that the Controller cannot purport to reject the petitioners objections to the grant of patent at a pre-grant stage and a patent, which has been granted in violation of the aforesaid statutory provisions is not valid in

the eye of law.

The court rejected the arguments of the 4th respondent that the proceedings before the Controller at the pre-grant stage are not quasi-judicial and the Controller merely acts in an administrative capacity. The court also disagreed with the contention that the hearing is optional even if it is requested and the words “Controller shall hear” used in Section 25(1)(k) of the said Act are to be construed as directory and similarly, the requirement of hearing under Rule 55(6) should also be treated as directory.

The court also dismissed the argument that by a mere denial of hearing, even though statutorily provided, the resultant decision does not become bad, unless the person who has been denied such hearing proves that he has suffered a prejudice. The court held that the petitioners did not have to prove any prejudice as their statutory right of hearing was denied.

The court also rejected the argument that the petitioners have a liberty of challenging the grant even at a post-grant stage under Section 25(2) of the said Act and that they have an alternative remedy, which they are pursuing. The court held that the denial of the right of hearing at the pre-grant stage cannot be justified by the availability of a post-grant opposition.

The court also dismissed the argument of delay on the part of the petitioners in approaching the court. The court held that the delay cannot be a ground for denying the petitioners their statutory right of hearing.

In conclusion, the court held that the grant of the patent to the 4th respondent was in violation of the statutory provisions of the Patents Act and the Patent Rules and was therefore not valid. The court directed the Respondent Nos. 2 and 3 to reconsider Patent Application No.959/MAS/1995 after hearing the petitioners as per Section 25 of the Patents Act, 1970 read with Rule 55 of the Patent Rules.