Mumbai: India’s patent office last week launched an initiative to create a panel of independent experts who will, in turn, act as advisers to courts of law across the country in patent-related cases.
The reasoning behind the move is that the Indian judiciary is still not fully conversant with the fine print of an evolving patents regime.
The decision follows a number of delayed or overturned judgements in courts across India due to the technical aspects of the law.
Welcome move: The Novartis AG headquarters in Switzerland. The pharma industry accounts for a significant volume of patent litigation.
While it is the patent office that has taken the initiative in this instance, the judiciary itself hasn’t been hesitant to seek expert assistance in complex areas.
In 2002, it appointed N.C. Saxena and S.R. Sankaran as commisioners to advise it on issues related to a right-to-food litigation. And in 2008, it appointed an expert panel that includes environmentalist R.K. Pachauri to advise it on the controversial Sethusamudram project litigation.
“The need for maintaining a panel of experts for ready reference was felt after the court was even seeking advice from patent examiners and controllers to interpret the technologies,” said a senior official from office of the controller general of patents, pointing to an obvious conflict of interest. He asked not to be identified because he is not authorized to talk to media.
The patent office’s move has been welcomed by both lawyers and the pharmaceuticals industry, which is responsible for a significant volume of patent litigation.
“It will significantly help the judiciary to fairly understand the technical aspects of an intellectual property-related matter, which is comparatively difficult for a judge who doesn’t have a technical background,” said Pravin Anand, a patent lawyer and partner at Delhi-based law firm Anand and Anand.
An industry lobby of foreign drug makers present in the country expressed the hope that the process would be “transparent”. “Improper selection of experts for this panel having a biased outlook could prove to be counterproductive, creating a protracted litigation process,” said Organisation of Pharmaceutical Producers of India director general Tapan Ray.
Interestingly, an amendment made to India’s patent laws in 2003 (Rule 103) requires a roster of advisers to be maintained and updated annually; however, this is the first time that the rule would be actually implemented.
The Controller General of Patents, Designs and Trademarks of India has invited applications from qualified persons for the department’s scientific advisers panel.
The advisers will appear before a court to assist it in patent infringement or other patent-related cases, where technical explanation of the patent is found necessary to resolve the matter. The courts are, however, not bound to seek advice from the expert panel and can call an independent expert of their own choosing.
Still, the patent office’s move could only help things, said Anand. “It is difficult to locate technical talent in specialized areas of technology quickly, and to train them to understand the court process, which can be quite overwhelming,” he said.
The Delhi high court had in 2008 appointed a professor of Indian Institute of Technology for advice on a product patent challenge filed by Imco Alloys Pvt. Ltd against a patent for a sugarcane crusher awarded to Polytech Pvt. Ltd. The scientific adviser’s report, which was submitted last month, suggested invalidating the patent granted by the Delhi patent office.
Several interim orders passed by lower courts in recent patent-related cases involving drug makers Novartis AG and Bayer AG, and automobile firm Bajaj Auto Ltd, among others, have invited serious criticism from patent and industry experts.
The patents office will have to pay the advisers selected by the court for their work.