Lawyers representing local companies and the cancer patients aid body in a patent dispute case involving Swiss multinational drug maker Novartis AG on Monday moved the Intellectual Property Appellate Board (Ipab) of India seeking to keep former patent controller general S. Chandrashekharan on the judgement panel using the legal provision of “Doctrine of Necessity”.
This provision is normally used when there is no replacement possible for a judge with domain expertise in the concerned matter.
Novartis has appealed against the Indian patent office’s decision to reject its application for a patent on its cancer drug Glivec. The case was transferred to Ipab from the Madras high court earlier in May this year.
It came up for hearing on Monday after Novartis objected on 18 June to the appointment of Chandrashekharan on the panel. In the absence of additional solicitor general V.T. Gopalan, representing the Government of India, the hearing has been postponed again to 10 July.
Novartis objected to the presence of Chandrashekharan as a technical member on the appellate board because he was the controller general of patents when the company’s original application for a patent on Glivec was turned down citing lack of novelty.
G. Gopakumar Nair, a leading patent attorney, said the appellate board can allow Chandrashekharan to continue on the board as its technical member by invoking “Doctrine of Necessity” as this allows for a judge to hear a case even if he was related to the case in prior capacity.
Another lawyer, who attended the case, said even if Chandrashekharan remains on the board to hear the case, Novartis can approach a high court, or even the Supreme Court, if it is not happy with the judgment.
During the hearing on Monday, the lawyers—B.V. Raman and Anand Grower—representing Natco Pharma Ltd and the Cancer Patients Aid Association (two key defendants in the case), respectively, argued their case while Novartis repeated its objection to the appointment of Chandrashekharan on the board.
S. Udaykumar, who represented the Union government, said that the additional solicitor general Gopalan could not make it for the hearing on Monday. The additional solicitor general was to attend the case to explain why Novartis was denied a patent on Glivec.
The Union government, which appointed Chandrashekharan, is expected to file a reply to Novartis’ objection. Glivec is patented in nearly 40 countries, including China, Russia and Taiwan.