Date:23/02/2007 URL: http://www.thehindubusinessline.com/2007/02/23/stories/2007022306490300.htm

Back Novartis' charges against Indian patent law refuted

Our Legal Correspondent

`Nothing in the provisions of the Act is arbitrary'

The first part of Section 3(d), taken along with the explanation, only prohibits camouflaged inventions for the purpose of continuing the patent regime.

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Chennai Feb. 22 No mala fides could be attributed to the Indian Parliament for enacting the Patents (Amendment) Act, 2005, as amended subsequently, the Additional Solicitor General, Mr V.T. Gopalan, submitted to the Madras High Court on Thursday.

In the counter to the petition filed before a Division Bench by the pharmaceutical major Novartis AG challenging the rejection of their patent application for beta crystalline form of imatinib mesylate, Mr Gopalan said that there was nothing in the provisions of the Act which could be said to be arbitrary.

There was also no question of discrimination that could be attributed to the patent-holders.

Discrimination meant manifestly arbitrary. On the other hand, the amendment made to the law conformed to the aspirations of the people.

He submitted before the Bench, comprising Justices Mr R. Balasubramanian and Mr Prabha Sridevan, that there were sufficient guidelines in the statement of objects and reasons of the amendment Act, as also in the other provisions of the law. These guidelines vested the country with all power under the amended Section 3(d). Hence, no discrimination could be attributed to India. Turning to the criticism of the petitioner that the law inhibited patenting of the derivative, which was new and involved inventive step and industrial application, the Additional Solicitor General said that Article 27 of the TRIPS agreement also contemplated that patents be given only to inventions which were new and they would have an inventive step.

Mr Gopalan cited the various articles of TRIP and said these gave member-states freedom to determine the appropriate method of implementing the provisions of the agreement within their own local system and practices. These articles only meant that the amendments made to the law should be constitutionally valid.

No camouflages

The first part of Section 3(d) of the Patents Act, taken along with the explanation, only prohibited camouflaged inventions for the purpose of continuing the patent regime. An invention with a mere change of form but without any enhanced efficacy could not be granted patent. If granted, it would be arbitrary.

Arguments against the order of rejection of the Assistant Controller of Patents were also advanced by other pharmaceutical patent holders.