26 September 2011, New Delhi
Novartis’ Special Leave Petition (SLP) challenging the decision of the Intellectual Property Appellate Board (IPAB) rejecting its appeal for a patent on the beta-crystalline form of imatinib mesylate, an anti-cancer drug, was listed for hearing today before a Division Bench of the Supreme Court of India, comprising Justice Aftab Alam and Justice Ranjana P Desai.
Mr. C. Aryama Sundaram, senior counsel for Natco Pharma Ltd, one of the Respondents, contended that the appropriate forum at which Novartis ought to have challenged the IPAB’s order was the Madras High Court. Referring to the absence of a provision for statutory appeal under the *Patents Act, 1970 *, from the orders of IPAB to the High Court, he urged that the appropriate remedy in such cases was a writ petition (under Article 226 of the Constitution of India) before the Madras High Court. Mr. Sundaram pointed out that petitions challenging the decisions of the IPAB in other cases are pending before the High Courts and that only Novartis has preferred a special leave petition before the Supreme Court without exhausting the alternative remedy at the High Court.
Mr. Harishankar, counsel for Novartis, contended that the final arguments in the matter had commenced before the earlier Bench and the matter was argued at length for almost two weeks before it was transferred to the present bench. He said that the issue of maintainability was not raised before the earlier bench.
Mr. Abhishek Manu Singhvi, senior counsel appearing for Cipla, suggested that the Court could hear and decide the issue of maintainability of Novartis’ SLP before proceeding to the merits of the case.
After hearing the counsels, the Supreme Court posted the matters for hearing on 17 October 2011 on the preliminary issue of whether the Supreme Court ought to entertain Novartis’ SLP.
[Note: In India, the High Courts have the power to judicially review of actions and decisions of executive, administrative, quasi-judicial or judicial authorities under Articles 226 and / or 227 of the Constitution of India. If a statute does not provide for a remedy or for a second appeal against a decision of a judicial or quasi-judicial authority, the aggrieved party can approach the High Court. A special leave petition before the Supreme Court of India under Article136 of the Constitution of India is considered to be the last resort of appeal. Under Article 136, the Supreme Court has the discretionary power to grant special leave to appeal against any judgment, decree, determination, sentence or order in any matter passed by any court or tribunal within the territory of India. Leave to appeal has not yet been granted to Novartis by the Supreme Court.]
In case the Supreme Court is of the view that Novartis’ SLP is maintainable, it will proceed to hear the matter on the merits of the case.
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