In my last post, I had blogged on Cipla’s appeal against an order of the Single Judge restraining Cipla from taking any steps to manufacture its drug until October 15, 2012. This order was passed on October 8, 2012 in a Writ Petition W.P.(C) 6361/2012 filed by Sugen Inc (not in a suit, as I incorrectly mentioned in my last post) against the post-grant revocation of its patent by the Controller on September 24, 2012.
I thank the same alert friend for bringing this order to my attention and more importantly, for sharing his thoughts on the issue with me.
The primary ground of challenge appears to be that Sugen Inc was not provided a copy of the recommendations of the Opposition Board in the post-grant opposition proceedings. This, according to Sugen, was a violation of the principles of natural justice, and hence rendered the revocation order a “nullity”.
Readers may collect the order of the IPAB dated August 3, 2012 in Diamcad N.V. and Anr. v. Sarin Technologies where it was categorically held by the IPAB that the recommendations of the opposition board must be shared with the patentee in order for him to rebut the recommendations, if they adversely affect him.
The Learned Single Judge presiding over the writ petition also took the prima facie view that the contention of Cipla that there is no requirement under the Act to share the recommendation of Opposition Board, was not convincing. Accordingly, Cipla was restrained until October 15, 2012 from taking any steps to market its drug.
There appears to a slight issue with the order of the Single Judge. The post-grant opposition order of the IPAB revoking Sugen’s patent on Sunitinib was not stayed, and yet Cipla was restrained from marketing its drug.
My point is the post-grant order ought to have been stayed if Cipla was sought to be restrained, however if no such stay was granted against the operation of the revocation of the patent, then what is the legal ground for restraining Cipla?
I could be wrong. Comments and corrections are welcome!