[Ip-health] Novartis update: Supreme Court to hear arguments on maintainability of Novartis’ petition to Supreme Court [26 September 2011]

prathibha siva prathibha.siva at gmail.com
Tue Sep 27 04:22:30 PDT 2011

*Novartis update:  Supreme Court to hear arguments on maintainability of
Novartis’ petition to Supreme Court [26 September 2011] *

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.

 We will keep you posted about further developments.

In solidarity,

Lawyers Collective HIV/AIDS Unit


Prathibha Sivasubramanian

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