The Madras High Court on Monday dismissed a writ petition filed by Swiss pharma major Novartis Ag, challenging Sec 3 (d) of the Indian Patents Act.

Defies TRIPS
The amended act was upheld and rejected Novartis’ contention that the impugned section was not compliant with the Trade Related Intellectual Property Rights( TRIPS) agreement and violated  the Constitution as it was “vague”, discriminatory and gave arbitrary powers to the patent authority.

Novartis went to court against the rejection of its application for patent for Glivec, a cancer drug.

Dismissing its petition, the bench said Novartis cannot plead that it does not know about the enhancement of known efficacy of a substance or that derivatives differ significantly in properties from the original substance.”

The judges said the relevant section was “not vague or ambiguous” nor did it give patent authority arbitrary powers. The section had “in-built materials” which should guide the patent authorities in taking a decision on a patent application. Even if a patent authority misused his powers, there were forums available to the applicant, including courts of law, to seek a remedy.

The judges said when TRIPS agreement itself provides for a disputes settlement mechanism, courts have no jurisdiction to decide whether the amended section was violative of Sec 27 of the TRIPS. The court noted that the objective of the amended act was to “provide access to citizens to life-saving drugs.

Trade can continue
It also said the act was not violative of Art 14 of the Constitution as Novartis was not barred from carrying on its trade.

Novartis’ appeal against the rejection of its patent application is before the Intellectual Property Appellate Board in Chennai.

The board has dismissed the company’s objection to let former Patent controller-general S Chandrasekharan to be on the board because he had rejected its application. The company filed a writ petition against this decision.