On May 21, 2012, I filed a Public Interest Litigation (PIL), which is basically a public-interest writ petition under Article 226 of the Constitution, challenging the legality of a Circular issued by the Central Board of Excise and Customs (CBEC) on May 8, 2012. The PIL is numbered W.P(C) 3165 of 2012 and is titled J.Sai Deepak v. Central Board of Excise and Customs and Union of India.
In the impugned circular, the CBEC, in consultation with the DIPP, has taken the position that Section 107A(b) of the Patents Act, 1970 allows “Parallel Imports” and therefore such imports do not fall within the scope of application of the IPR Enforcement Rules, 2007. Following is the portion of the Circular which states so:
“4. In this regard, the Department of Industrial Policy and Promotion which is nodal authority for all matters relating to (i) Trade Marks Act, 1999 (ii) Patents Act, 1970 and (iii) Designs Act, 2000 has,interalia, stated that:
(i) Section 107A (b) of the Patents Act, 1970 provides that importation of patented products by any person from a person who is duly authorised under the law to produce and sell or distribute the product shall not be considered as an infringement of patent rights. Hence, in so far as Patents are concerned, Section 107A (b) provides for parallel imports.”
Readers of our blog know that I have written frequently on Section 107A(b) stating that the provision does not relate to or permit parallel imports by way of international exhaustion. I have taken the same position in the PIL. I have also filed an application seeking stay of the Impugned Circular in so far as it relates to the clarification on Section 107A(b).
The PIL came up before the Chief Justice of the High Court of Delhi (I appeared for me). The Hon’ble High Court has issued notice to the respondents asking them to file their counter-affidavits in response to my Petition. The next date of hearing is July 25, 2012.