Dismissing it, a division bench comprising Justice R Balasubramanian and Justice Prabha Sridevan held that the court cannot decide whether the Act was in accordance with trade related aspects of intellectual property rights agreement or not.
The Intellectual Property Appellate Board in Chennai had, on July 21 rejected the plea by Novartis to exclude a technical member from a bench constituted to hear its appeal against rejection of patent right to one of its product.
The firm objected to the appointment of technical member S Chandrasekaran on the IPAB Bench on the ground that he had 'disabled himself' to hear its appeal against rejection of patent right for beta crystalline form of imatinib mesylate, as he had deposed in the counter affidavit filed in the Madras High Court.
"He has disabled himself from hearing the appeal in the capacity of a technical member in the light of deposition made by him, thereby taking a stand in the matter and as such he would not be free from bias," the firm contended.
Rejecting the objection, the IPAB Bench comprising board chairman M H S Ansari and S Chandrasekaran had stated the submissions made by Chandrasekaran have no relevance as they were based on his official capacity as a statutory authority before assuming the post of adjudicator and hence must be eschewed from consideration on the facts of the instant matter.
Originally, the company filed an appeal and a petition in the Madras High Court. The appeal challenged rejection of its patent application for beta crystalline form of imatinib mesylate, sold under the brandname Gleevee/Glivec.
The petition challenged the constitutional validity of the provisions of the Patents (Amendment) Act 2005, on the basis of which its application for patent was rejected. Since there was no IPAB Bench, which is the competent authority to hear the appeals against rejection of patent, the company moved the appeal in the High Court.
During the course of hearing, the Centre notified the constitution of IPAB Bench. Following this, a Division Bench comprising Justice R Balasubramanian and Justice Prabha Sridevan, which was hearing the matter, referred the appeal by the company, against rejection of patent, to the board.
However, the high court had reserved orders on the petition challenging the validity of the provisions of the Patents (Amendment) Act, 2005.